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+"{\"id\": \"10525897\", \"name\": \"UNITED STATES of America, Plaintiff-Appellant, v. Clifford R. PIERSON, Defendant-Appellee\", \"name_abbreviation\": \"United States v. Pierson\", \"decision_date\": \"1991-10-07\", \"docket_number\": \"No. 90-5399\", \"first_page\": \"1044\", \"last_page\": \"1049\", \"citations\": \"946 F.2d 1044\", \"volume\": \"946\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the Fourth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T20:29:35.586924+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ERVIN, Chief Judge, and WIDENER, and HAMILTON, Circuit Judges.\", \"parties\": \"UNITED STATES of America, Plaintiff-Appellant, v. Clifford R. PIERSON, Defendant-Appellee.\", \"head_matter\": \"UNITED STATES of America, Plaintiff-Appellant, v. Clifford R. PIERSON, Defendant-Appellee.\\nNo. 90-5399.\\nUnited States Court of Appeals, Fourth Circuit.\\nArgued April 12, 1991.\\nDecided Oct. 7, 1991.\\nAs Amended Oct. 25, 1991.\\nDavid Earl Godwin, Asst. U.S. Atty., Clarksburg, W.Va., argued (William A. Ko-libash, U.S. Atty., on brief), for plaintiff-appellant.\\nStephen Godfrey Jory, Busch, Jory, Smith & Talbott, Elkins, W.Va., argued, for defendant-appellee.\\nBefore ERVIN, Chief Judge, and WIDENER, and HAMILTON, Circuit Judges.\", \"word_count\": \"2750\", \"char_count\": \"16716\", \"text\": \"OPINION\\nERVIN, Chief Judge:\\nClifford Pierson was charged in a three count indictment resulting from a bombing incident. These charges included two counts relating to the explosion and one count of making false declarations to the Grand Jury. After a jury trial, Pierson was acquitted of the explosives charges but was convicted of the false declarations charge. At sentencing, the government urged that Pierson be sentenced as an accessory after the fact under sections 2J1.3(c) and 2X3.1 of the Federal Sentencing Guidelines. The district court found that Pierson should not be sentenced as an accessory after the fact. The government appealed this determination. We find no error in the sentence imposed by the district court and hereby affirm.\\nI\\nOn Monday morning, November 14,1988, a pipe bomb exploded in the Home National Bank in Sutton, West Virginia. The explosion seriously injured the bank's chief executive officer, Roy W. Cutlip. The bomb was inside a file box which had been placed on Cutlip's desk. It exploded when he opened the file box. The box was placed on Cutlip's desk sometime between 10:30 a.m. Sunday, November 13 and 7:00 a.m. Monday, November 14. Two witnesses testified that they saw Pierson, a bank officer for Home National, on or near the bank premises during the Sunday afternoon to Monday morning time period. Investigators obtained permission to search Pier-son's home. There they found and seized a pipe wrench.\\nOn January 11, 1989, Pierson appeared before the Federal Grand Jury. He was asked whether he was at the bank on Sunday afternoon or early Monday morning. He denied being present at the bank on either occasion.\\nIn late August 1989, the Alcohol Tobacco and Firearms laboratory notified investigators that its toolmark expert was of the opinion that Pierson's pipe wrench was the tool which had made marks on the pipe fragments that were recovered from the scene of the bombing. When Pierson was informed of the pipe wrench evidence, he responded that someone else must have stolen the wrench and then returned it.\\nOn September 20, 1989, the Grand Jury in the Northern District of West Virginia handed down a three count indictment against Pierson. Count I charged Pierson with knowingly possessing a firearm (a destructive device) in violation of 26 U.S.C. \\u00a7 5861(c) and 5871. Count II charged Pier-son with malicious damage by means of an explosive (a pipe bomb) resulting in injuries to another person in violation of 18 U.S.C. \\u00a7 844(i). Count III charged Pierson with knowingly making false material declarations to the Grand Jury while under oath in violation of 18 U.S.C. \\u00a7 1623. The allegedly false declarations were Pierson's denials that he had been at the bank near the time of the bombing. A jury trial was held on March 13-16, 1990. Pierson was acquitted on Counts I and II but was convicted on Count III.\\nIn the original presentence report, the probation officer calculated Pierson's offense level at 15. He used a base offense level of 12 as provided in \\u00a7 2J1.3(a) of the Federal Sentencing Guidelines (\\\"Guidelines\\\") and adjusted it upwards 3 levels for substantial interference with the administration of justice under Guidelines \\u00a7 2J1.3(b)(2) because the offense involved false testimony before a grand jury. Pier-son objected to the 3 level enhancement under \\u00a7 2J1.3(b)(2). The government objected to the offense level, arguing that \\u00a7 2J1.3(c) required that the court apply \\u00a7 2X3.1 because Pierson was an accessory after the fact.\\nAt the sentencing hearing, the district court agreed with the defendant's objection to the 3 level enhancement. The court disagreed with the government's assertion that \\u00a7 2X3.1 should be applied. Therefore, the court found that Pierson's base level was 12 and his criminal history category was I. Thus, the sentencing range was 10-16 months. The court then sentenced Pier-son under Guidelines \\u00a7 501.1(d) to 5 months imprisonment, followed by supervised release for two years with the first 5 months being spent in home detention. Thereafter, Pierson filed a Motion for Confinement In Work Release Facility seeking a reconsideration of the terms of his sentence. The court denied Pierson's motion and declined to modify the terms of Pier-son's sentence.\\nThe government appealed Pierson's sentence on the ground that the court should have applied \\u00a7 2X3.1. The court's determination that Pierson was not an accessory after the fact in this case was a legal conclusion which is subject to de novo review. See United States v. Huppert, 917 F.2d 507, 510 (11th Cir.1990).\\nII\\nThis case involves the application of Section 2J1.3(c) of the Guidelines. Section 2J1.3(c) is a cross reference section which provides:\\n(1) If the offense involved perjury or subornation of perjury in respect to a criminal offense, apply \\u00a7 2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.\\nUnited States Sentencing Commission, Guidelines Manual, \\u00a7 2J1.3(c) (Nov. 1989) (hereinafter U.S.S.G.). Section 2X3.1 is the \\\"Accessory After the Fact\\\" section which provides:\\n(a) Base Offense Level: 6 levels lower than the offense level for the underlying offense, but in no event less than 4, or more than 30.\\nU.S.S.G. \\u00a7 2X3.1. Thus, under \\u00a7 2J1.3(c), a court must determine if Pierson's perjury was \\\"in respect to a criminal offense.\\\" If so, the court must apply \\u00a7 2X3.1 if application of \\u00a7 2X3.1 would result in a greater sentence than determined under the other sections of \\u00a7 2J1.3.\\nIn this case, it is clear that Pierson's perjury was \\\"in respect to a criminal offense.\\\" His perjury related to whether or not he was near the bank near the time of the bombing. Pierson repeatedly testified that he was not, and the jury apparently believed that Pierson lied to the Grand Jury in those denials. Bombing is certainly a criminal offense. See 18 U.S.C.A. \\u00a7 844(i) (West.Supp.1991). Therefore, it is clear that the perjury was in respect to a criminal offense. As a result, \\u00a7 2J1.3(c) requires the application of \\u00a7 2X3.1, unless \\u00a7 2X3.1 by its terms does not apply to the facts in this case.\\nOnce we have determined that \\u00a7 2X3.1 applies, we must then determine what sentence, if any, would be required under \\u00a7 2X3.1. The district court found that \\u00a7 2X3.1 did not apply without a great deal of discussion. The court stated:\\nThe probation officer addressed this position in the Second Addendum to the Pre-sentence Report and found that he did not believe this should apply, because the defendant was acquitted of the underlying offense. And the underlying offense is described in 2X3.1, as an offense to which the defendant is convicted of being an accessory.\\nJoint Appendix at 50. We cannot agree with the rationale of the district court. The Guidelines do not require a conviction of the underlying offense unless the particular provision expressly requires conviction. See U.S.S.G. \\u00a7 1B1.3, Application Note 5. Application Note 5 to \\u00a7 1B1.3 provides:\\nA particular guideline (in the base offense level or in a specific offense characteristic) may expressly direct that a particular factor be applied only if the defendant was convicted of a particular statute_ Unless such an express direction is included, conviction under the statute is not required.\\nId. Section 2X3.1 does not expressly require a conviction of the underlying offense. Therefore, we find that the district court was wrong in its rationale for not applying \\u00a7 2X3.1. However, this conclusion does not end our inquiry. We must still determine whether \\u00a7 2X3.1 applies in this case.\\nUnfortunately, we have found no caselaw directly dealing with the interplay between \\u00a7 2J1.3 and \\u00a7 2X3.1. However, a recent Eleventh Circuit case involved a similar guideline provision and gives us great guidance. See United States v. Huppert, 917 F.2d 507 (11th Cir.1990) (dealing with the issue of whether to apply \\u00a7 2X3.1 through Guideline 2J1.2(c)(1)).\\nGuideline \\u00a7 2J1.2 is the Obstruction of Justice provision. See U.S.S.G. \\u00a7 2J1.2. It is very similar to \\u00a7 2J1.3. Both begin with a base level of 12. Compare U.S.S.G.\\n\\u00a7 2J1.2(a) with U.S.S.G. \\u00a7 2J1.3(a). Both add 8 levels if the offense involved personal or property damage. Compare U.S.S.G. \\u00a7 2J1.2(b)(1) with U.S.S.G. \\u00a7 2J1.3(b)(l). Both add 3 levels if the offense resulted in a substantial interference with the administration of justice. Compare U.S.S.G. \\u00a7 2J1.2(b)(2) with U.S.S.G. \\u00a7 2J1.3(b)(2). Finally, both have a cross reference section to \\u00a7 2X3.1 if the offense was \\\"in respect to a criminal offense.\\\" Compare U.S.S.G. \\u00a7 2J1.2(c)(1) with U.S.S.G. \\u00a7 2J1.3(c)(l). The language in each provision is identical.\\nThe Commentary to the Perjury Section (\\u00a7 2J1.3) indicates that the Perjury Section should be interpreted like the Obstruction of Justice Section. The Background Commentary provides:\\n\\\"The Commission believes that perjury should be treated similarly to obstruction of justice. Therefore, the same considerations for enhancing a sentence are applied in the specific offense characteristics, and an alternative reference to the guideline for accessory after the fact is made.\\\"\\nU.S.S.G. \\u00a7 2J1.3, Background Commentary. Due to this instruction to treat the two provisions similarly, we think it appropriate to look at the Commentary to the Obstruction of Justice Section (\\u00a7 2J1.2) for further guidance. The Background Commentary to \\u00a7 2J1.2 provides:\\nThe specific offense characteristics reflect the more serious forms of obstruction. Because the conduct covered by this guideline is frequently part of an effort to assist another person to escape punishment for a crime he has committed, an alternative reference to the guideline for accessory after the fact is made.\\nU.S.S.G. \\u00a7 2J1.2, Background Commentary. The Eleventh Circuit seized upon this Background Commentary to \\u00a7 2J1.2 in United States v. Huppert, 917 F.2d 507 (11th Cir.1990).\\nIn Huppert, the defendant was indicted on two counts for obstructing justice. He had encouraged two persons who had been subpoenaed to the grand jury to testify that his deceased associate was involved in certain money laundering activities which were under investigation. Huppert was convicted of the two counts of obstructing justice in violation of 18 U.S.C. \\u00a7 1503. At sentencing, the trial court determined that the government had presented sufficient evidence to prove that Huppert was guilty of the underlying criminal activity under investigation. Id. at 509. The trial court also determined that Huppert was trying to help others by obstructing justice. Id. The trial court applied \\u00a7 2J1.2(c)(l) and then treated Huppert as an accessory after the fact under \\u00a7 2X3.1.\\nThe Eleventh Circuit reversed the trial court's sentencing. Id. at 511. The court began by noting that determining whether Huppert was an accessory after the fact was a legal conclusion subject to de novo review. Id. at 510. The court then found that the district court had erred in concluding that Huppert attempted to protect others and therefore was an accessory after the fact. Id. The court relied upon the above mentioned Background Commentary to \\u00a7 2J1.2 as support for its holding:\\nThe guideline itself contemplates that one sentenced through the cross-reference as an accessory cannot be a principal.... [Ujnder the guidelines, relevant conduct is incorporated into the base offense level by a prescribed process. Section 2J1.2(c)(l) provides a specific method by which a court may consider conduct outside the offense of conviction. That method is consistent with our understanding of the law of principals and accessories. Because Huppert cannot be sentenced as an accessory after the fact, we conclude that the district court incorrectly applied \\u00a7 2J1.2(c)(l) to this case.\\nId. at 511.\\nThe Huppert reasoning is instructive. In the case at bar, Pierson was charged as a principal in the bombing at the bank. He was not charged as an accessory. When he denied being present at the bank near the time of the bombing, it seems more than likely that Pierson was trying to protect himself, rather than others.\\nThe government argues that Huppert is factually distinguishable. The government points to the fact that Huppert was convicted of being a principal in the underlying offenses. In contrast, Pierson was acquitted of being a principal in the underlying offenses. As a result, the government contends that Pierson must have been trying to protect someone other than himself. However, it is just as likely, if not more likely, that Pierson was trying to protect himself. In fact, he may have successfully done just that given his acquittal in the underlying two counts. We do not believe that the government's assertion that Pier-son must have been protecting others is supportable. The fact that the government charged him as principal in Counts I and II refutes that assertion.\\nUnder the rationale of Huppert, Pierson is not an accessory after the fact. This view is further supported by the holding in United States v. Berkowitz, 712 F.Supp. 707 (N.D.Ill.1989), rev'd on other grounds, 927 F.2d 1376 (7th Cir.1991). There, Ber-kowitz was convicted of two counts of obstruction of justice and one count of stealing United States property. Id. at 708. The district court held that \\u00a7 2X3.1 was inapplicable to Berkowitz:\\nThe government also claims that the court should apply \\u00a7 2X3.1, which results in a higher offense level for Counts I and II. Section 2X3.1, however, is inapplicable. That section is entitled, \\\"Accessory After the Fact.\\\" Applying \\u00a7 2X3.1 in the instant case would result in treating Berkowitz as an accessory to his own alleged tax fraud and mail fraud. The official comments to \\u00a7 2J1.2 indicate that such an application of \\u00a7 2X3.1 is not appropriate. Therein, the commission explains that \\u00a7 2X3.1 is applied in obstruction of justice cases \\\"[bjecause the conduct covered by the [obstruction of justice] guideline is frequently part of the effort to assist another person to escape punishment for a crime he committed.\\\" (Emphasis added.) Since Ber- kowitz did not commit obstruction of justice to assist another person, \\u00a7 2X3.1 is inapplicable.\\nId. at 709.\\nWe find that section 2X3.1 does not apply in this case for the reasons stated in Hup-pert and Berkowitz, namely that Pierson was most likely trying to protect himself and not others. Although Huppert and Berkowitz involved \\u00a7 2J1.2(c) rather than \\u00a7 2J1.3(c), the reasoning of those cases is applicable by analogy. The commentary to \\u00a7 2J1.3 supports the use of such an analogy between \\u00a7 2J1.2(c) and \\u00a7 2J1.3(c). See U.S.S.G. \\u00a7 2J1.3, Background Commentary-\\nWe note that when the government seeks to enhance a sentencing range, it bears the burden of proof. United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir.1989). We find that Pierson's range should be enhanced under \\u00a7 2X3.1. Therefore, we find that the district court properly refused to apply \\u00a7 2X3.1 in this case, and we affirm the sentence imposed upon Pierson.\\nAFFIRMED.\\nUnited States v. Berkowitz, like Huppert, involves the interaction between \\u00a7 2J1.2(c) and \\u00a7 2X3.1 rather than \\u00a7 2J1.3(c) and \\u00a7 2X3.1.\"}"
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+"{\"id\": \"10542077\", \"name\": \"REO INDUSTRIES, INC., Plaintiff-Appellant, v. NATURAL GAS PIPELINE COMPANY OF AMERICA, Defendant-Appellee\", \"name_abbreviation\": \"Reo Industries, Inc. v. Natural Gas Pipeline Co. of America\", \"decision_date\": \"1991-06-03\", \"docket_number\": \"No. 90-1660\", \"first_page\": \"447\", \"last_page\": \"458\", \"citations\": \"932 F.2d 447\", \"volume\": \"932\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the Fifth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T20:58:01.268297+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BROWN, SMITH, and WEINER, Circuit Judges.\", \"parties\": \"REO INDUSTRIES, INC., Plaintiff-Appellant, v. NATURAL GAS PIPELINE COMPANY OF AMERICA, Defendant-Appellee.\", \"head_matter\": \"REO INDUSTRIES, INC., Plaintiff-Appellant, v. NATURAL GAS PIPELINE COMPANY OF AMERICA, Defendant-Appellee.\\nNo. 90-1660.\\nUnited States Court of Appeals, Fifth Circuit.\\nJune 3, 1991.\\nMarshall Searcy, Sam Dalton, Locke, Purnell, Rain & Harrell, Dallas, Tex., Jody G. Sheets, Culton, Morgan, Britain & White, Amarillo, Tex., for plaintiff-appellant.\\nDennis M. Dylewski, Mark A. Bukaty, Daniel R. Cabianca, Calvin, Dylewski, Gibbs, Maddox & Verner, Houston, Tex., Jerome Mrowca, Asst. Gen. Counsel, Mid-Con Corp., Lobard, Ill., for defendant-appel-lee.\\nBefore BROWN, SMITH, and WEINER, Circuit Judges.\", \"word_count\": \"6657\", \"char_count\": \"39690\", \"text\": \"JOHN R. BROWN, Circuit Judge:\\nREO Industries appeals from summary judgment for Natural Gas Pipeline (NGPL) in this action for declaratory judgment and damages for the alleged breach of an operating agreement. REO complains that NGPL has breached the agreement governing rights to produce oil and gas by interfering with its right to produce gas. Federal jurisdiction is based on diversity, and Texas law is applied. The dispute centers on the interpretation of the contract, and so we review, as with any question of law, de novo on appeal from summary judgment. Finding no genuine issues of material fact and no legal error, we affirm.\\nHere's What Happened\\nREO owns oil rights, and NGPL owns gas rights on the same 640 acres in the West Panhandle field. They are successors to the parties to a 1933 operating agreement governing oil and gas development activities on the subject property and other properties. The agreement specifies procedures to be followed when, in drilling, the oil operator finds gas or the gas operator finds oil.\\nThe one drilling the well may offer the well to the other, who is not obligated to buy. If tender is made and the option to purchase is exercised, the price is to be determined in part by a joint production test. If the option is not exercised, the drilling party retains his well and \\\"its production,\\\" and must pay the royalties on such production. See infra, note 5.\\nNGPL and its predecessor (Texoma), as gas operators have been producing gas from a well on the land since 1935.\\nIn 1985, REO drilled a well designated Troutman No. 1, seeking oil but finding gas. Paragraphs V and VII of the contract address this situation. Paragraph V ap plies when a joint production test on a gas well shows capacity to produce more than 3,000,000 cubic feet of gas per day, and Paragraph VII applies to gas wells showing an open flow volume of 3,000,000 or less cubic feet per day. Under Paragraph V, the oil operator must offer the gas well to the gas operator at the net cost of the well, and under Paragraph VII the well is to be offered at half its cost.\\nFor our purposes, the significant provisions of Paragraph V are as follows:\\n\\\"[T]he Gas Operator shall have the option to purchase such well, (but it shall not be required to do so).... [SJhould Gas Operator fail within said ten (10) days to notify Oil Operator of its election to so purchase said gas well, then Oil Operator shall own said well and have the right, subject to the limitations herein named, to operate such well . for its own use and benefit. In the event Oil Operator operates such gas well, it shall pay to the lessor, his heirs or assigns, the gas rental or royalty provided for in the lease upon which said well is located.\\\"\\nThe language of Paragraph VII is similar, providing that \\\"[i]f the party entitled to purchase said well\\\" does not, then \\\"the party drilling the well shall own said well and the production therefrom, and shall have the right to operate such well for its own use and benefit....\\\"\\nREO offered the well to NGPL (by letter dated August 6, 1985 and received September 9, 1985). NGPL declined to participate in a joint production test or to purchase the well, stating that \\\"Natural [NGPL] is satisfied with the performance of its existing gas well on the section and, as long as Natural continues to produce its existing gas well, no one can legally operate the referenced well as a gas well under current Railroad Commission regulations.\\\" The Texas Railroad Commission's Rule 38 and the appropriate field rules permit only one gas well on 640 acres, so the well is useless to NGPL (and to REO) unless NGPL plugs its pre-existing well or the Commission grants an exception to the rule. Exceptions to the Railroad Commission's rule are granted only to prevent waste or the confiscation of property.\\nREO made a second offer to perform a joint production test and to sell its well, which was also refused. NGPL continued to operate its gas well. REO applied to the Commission for an exception, which NGPL opposed. The parties' arguments before the Commission focused on ownership of the gas reserves under the operating agreement as well as the questions of waste or confiscation of property. NGPL asserted that the Commission was the wrong forum since it lacked the legal power either to construe the contract or determine title to the gas.\\nPresumably bowing to the Commission's lack of primary jurisdiction, REO withdrew its application from the Commission and sued in state court seeking declaratory judgment and damages for NGPL's alleged interference with its operations in breach of Paragraphs II and XV of the operating agreement.\\nParagraph II provides: \\\"[I]t is further understood that each party shall so conduct its operations and so locate its improvements and equipment on said premises as to interfere as little as possible with operations of the other.\\\" Paragraph XV further states: \\\"Each party agrees . to comply with all state and federal laws and to protect any interest of the other party in such leases against liens or encumbrances caused by its acts or omis-sions_\\\" (Emphasis added.)\\nREO asserted that these provisions obligated NGPL not only to refrain from opposing REO's application to the Commission, but more significantly to either buy REO's well or plug its own well and forfeit all its rights under its gas lease in order to permit REO to operate its well under Rule 38.\\nNGPL moved for summary judgment after removing to federal court, claiming i) REO had not fulfilled conditions precedent imposed by the agreement; ii) NGPL was not obligated to buy the proffered well or plug its own well; iii) NGPL had not breached the agreement by opposing REO's Rule 38 application; iv) NGPL's conduct was not a proximate cause of any damage to REO; and v) REO's claims were not ripe for judicial determination.\\nREO filed cross motion for partial summary judgment on the issues of liability for and causation of damages, claiming i) it had fulfilled the conditions precedent (or they were merely covenants); ii) NGPL was obligated to buy the well; iii) NGPL had interfered, in breach of Paragraphs II and XV of the contract, with REO's contractual right to operate the gas well by opposing REO's application for an exception and failing to plug its own well; and iv) NGPL's conduct proximately caused damages to REO.\\nThe court granted NGPL's motion and dismissed REO's claim, determining that: i) NGPL did not breach the agreement because it did not require NGPL to refrain from opposing REO's application to the Commission and certainly did not impose the Hobson's choice either to buy REO's well or abandon its leasehold rights by plugging its own; ii) REO's claims were not ripe because REO had shown no injury; and iii) even if there was an injury, NGPL's conduct was not the cause of any damages to REO. The trial court denied REO's motion for reconsideration and new trial.\\nNo Title\\nTexas has adopted the theory of ownership of oil and gas in place, beneath the surface of the land. Under Texas law, oil or gas in place, beneath the surface, is part of the realty, and becomes personalty upon production and severance. Generally, a Texas oil or gas lease operates not as an ordinary lease, but as a deed or conveyance of a determinable fee simple estate, investing the lessee with title either to the oil or the gas, or both, in place.\\nIt is undisputed that NGPL is the record title holder of gas rights under an oil and gas lease and thereby owns the gas under the subject acreage. But REO argues that upon NGPL's election not to purchase the well, the Operating Agreement transferred to REO title to all the gas its well \\\"could produce,\\\" with the consequence that NGPL forfeits all its pre-existing, exclusive rights to the gas reserves under the acreage. This ownership by implied transfer is the basis of REO's claim that NGPL interfered with REO's operations, in breach of the agreement, by failing either to refrain from opposing REO's application for an exception to Rule 38 or to plug its own well.\\nREO sought as damages the amount of money it could have earned if NGPL had not interfered with its right to operate the well. REO has not, and cannot, claim that NGPL has converted gas belonging to REO by continuing to produce gas from NGPL's pre-existing well.\\nNonetheless, since the parties have agreed that in this field one well can produce all the gas under the 640 acres, REO essentially contends that by failing to purchase a well it does not need, NGPL has forfeited the entirety of its exclusive rights to gas under its lease on this acreage.\\nSince, despite REO's lamentations, it has to be uncontradicted that no gas \\u2014 whoever owns it \\u2014 can be produced from REO's well without a Rule 38 exception, REO's other claims are of secondary importance to that of the claimed forfeiture of NGPL's exclusive ownership of all the gas in place under the acreage.\\nConstruing a contract under Texas law, the following principles apply: Interpretation of an unambiguous contract is a question of law, and the determination of whether a contract is ambiguous is also a question of law. A contract is not ambiguous merely because the parties have a disagreement on the correct interpretation. A contract is not ambiguous \\\"when it is reasonably open to just one interpretation given the rules of construction and the surrounding circumstances.\\\" Contracts are to be construed in their entirety to give effect to the intent of the parties, considering each provision with reference to the entire contract, so that every clause has some effect and no clause is rendered meaningless. A contract is given its plain grammatical meaning unless that meaning would defeat the intent of the parties. And, of course, the interpretation of the writing should be undertaken \\\"in the light of the circumstances\\\" at the time the contract was executed. Most significantly, Texas courts will not construe a contract to result in a forfeiture unless it cannot be construed in any other way.\\nWe hold that summary judgment was appropriate here because the contract is unambiguous. We agree with the District Court that the correct interpretation of the writing in light of the circumstances giving rise to its confection and to avoid an unnecessary forfeiture is that, although technically REO owns its well and any gas produced by that well, since no gas can be produced without an exception to Railroad Commission Rule 38, REO owns no gas and no economic value has attached to REO's potential, technical right under the contract to gas it may abstractly produce.\\nREO asserts that we are bound by our 1940 decision in Southern Minerals Corp. v. Simmons to hold in its favor.\\nWe are, of course, bound by stare decisis to our legal holdings \\u2014 in Southern a contract interpretation. Thus, we must interpret the same contract in the same manner. But, although the Southern Minerals contract also provided for the results when one operator found the other's product, it differed from the contract we interpret in several significant ways.\\nFirst, the Southern Minerals contract required the drilling party producing the other's product to complete the well and offer it to the other. The operating agreement here permits the operator to complete the well and offer it to the other. Because the oil operator was required to complete the well, the court in Southern said, \\\"A construction which would require the driller to complete the well for the other party to make his choice to take or reject it, and if he rejected it then to plug the well and lose it, would be too unfair to have been in contemplation.\\\"\\nWhile in that case it \\\"would be too unfair to have been in [the] contemplation\\\" of the parties to require a drilling operator to complete a well that was not productive of the product for which it had rights, sinking additional funds and efforts into a well, with no potential benefit if the other chose not to buy, it is not, in this case, \\\"too unfair to have been in [the] contemplation\\\" of the parties to permit the operator to take such a risk in hopes of still making a return on his so-far unsuccessful well. It is, on the other hand, \\\"too unfair to have been in contemplation\\\" for NGPL as gas operator to be expected to purchase an unneeded gas well or forfeit all of its gas rights.\\nSecond, REO points out that in Southern Minerals, the court relied in part on the agreement's \\\"provision that the royalties on gas from a well not taken over\\\" were to be paid by the party drilling the well. \\\"There would be no royalties without production, and the royalties are justly paid by him who owns the production.\\\"\\nParagraph V of the operating agreement at issue here, supra note 5, provides that if an oil operator retains and operates a gas well under the paragraph, it is to pay the gas rental or royalties on its own production. Paragraph XII apportions taxes between the oil operator and the gas operator by providing that the gas operator shall pay all taxes upon the gas rights \\\"excepting such taxes upon gas from and gas rights in particular wells which the Oil Operator under the provisions of this operating agreement may have acquired, which taxes the Oil Operator shall pay if sepa rately assessed or taxed, and, if not, then its fair and equitable apportionment thereof.\\\" (Emphasis added.)\\nREO says that these provisions are meaningless if not interpreted to mean that REO owns all the gas that \\\"could be produced\\\" from its well. But it is not meaningless to interpret the contract to mean that REO is to own all gas actually produced from the well.\\nNo gas can legally be produced from REO's well because of Rule 38, and no royalties on that well's production are payable unless there is production. Thus, REO has never owned any gas and can owe no taxes based on ownership of the gas. The contract provisions are not rendered meaningless by our construction; the circumstances to which they apply simply have not arisen.\\nFurther, the result produced is consistent with Southern and the language used by that court in declaring that the oil drilling party owned all the gas that \\\"would be produced\\\" from an individual well. There the parties were not limited by Railroad Commission proration rules to one gas well. The interpretation of the contract in Southern did not produce a forfeiture of all gas rights of the gas operator, as would be produced here under REO's construction. We do not and cannot find that the parties intended that the failure to exercise the option to pay for REO's gas well would result in NGPL's forfeiture of its exclusive leasehold gas rights.\\nThird, and perhaps most significantly, the opinion in Southern does not reflect that there was any legal impediment to the oil operator's ability to operate a gas well or receive its production. In the case at hand, NGPL cannot have breached the agreement by interfering with rights to produce gas that, because of Rule 38, have never existed. Furthermore, NGPL's actions cannot have caused REO to lose rights that, because of Rule 38, have not come into existence.\\nNo Breach\\nWe reject the contention that NGPL, by opposing REO's Rule 38 exemption petition to the Commission, breached the agreement. The trial court properly held that because the contract itself provides that it is subject to state and federal statutes and regulations (paragraph XX), and the Commission's rules require notice and permit interested parties to appear at a hearing prior to granting such an exception, there is no breach.\\nThe Texas case REO cites for the proposition that one may agree in a contract to refrain from exercising a legal right is not significant here. Unlike the explicit agreement in that case to refrain from exercising specific rights, NGPL's agreement in Paragraphs II and XV of the operating agreement not to interfere with REO's operations cannot reasonably be construed to constitute an agreement to refrain from exercising the right \\u2014 if not the duty to prevent waste \\u2014 granted by the Commission to oppose an exception.\\nWe similarly reject REO's contention that the agreement's Paragraph II and XV non-interference provisions require NGPL to plug its well and forfeit its gas rights. The provisions cannot reasonably be so construed.\\nAlthough it is often said that implied contract provisions are generally not favored by Texas law, they are regularly employed by Texas courts in construing oil and gas leases. \\u2022 Several factors are relevant in allowing a court to imply a covenant: First, it must appear from the ex press terms of the contract that the implied term was so clearly in the contemplation of the parties that they deemed it unnecessary to express it, or the implied term must be indispensable to give effect to the intent of the parties as disclosed by the contract as a whole.\\nNothing in this contract warrants the implication proposed by REO \\u2014 that NGPL must forfeit its gas leasehold rights, plug its well and refrain from opposing REO's application for a Rule 38 exception, in order to avoid interfering with REO's operations.\\nThe trial court properly ignored as inconsequential the factual disputes regarding conditions precedent to NGPL's option to purchase REO's well. On our construction of the contract, this possible factual controversy did not raise a genuine issue of material fact.\\nNo Injury\\nREO complains that the District Court improperly deferred to the Railroad Commission \\\"under the doctrine of primary jurisdiction.\\\" This is not an accurate depiction of the trial court's holding, which did not use the phrase \\\"primary jurisdiction\\\" and in no way deferred to the Railroad Commission. The court did state that the complaint was \\\"not ripe\\\" because without an exception to Rule 38, REO's well had no economic value. Since it had not lost anything of any economic value, REO had not been injured. The court simply decided that REO has lost nothing because it had nothing to lose; it had no gas and could lawfully deliver none.\\nThe doctrine of primary jurisdiction, by contrast, is a doctrine of judicial abstention whereby a court which has jurisdiction over a matter, nonetheless defers to an administrative agency for an initial decision on questions of fact or law within the peculiar competence of the agency.\\nPrimary jurisdiction differs from exhaustion of administrative remedies and ripe ness in that those concepts determine the stage at which a court may review an administrative action. No review of administrative action was sought here; REO had withdrawn its Rule 38 exception application and sought other relief in court.\\nA court, under Texas law, generally should defer under the doctrine of primary jurisdiction to an agency that has jurisdiction over a matter that is before the court. But no question of primary jurisdiction was involved here. REO did not ask the court for resolution of any matter within the Railroad Commission's jurisdiction. Moreover, had it done so, its request would have properly been denied as judicially ineffectual.\\nREO correctly points out that the Railroad Commission does not have jurisdiction over the contractual dispute between REO and NGPL. The Railroad Commission has no authority to determine title to land or property rights. It has no jurisdiction to award damages. And it has no jurisdiction over the interpretation of contracts.\\nThus, the court was empowered to, and did properly decide the contract interpretation, title, and damages issues. .\\nREO's request for damages to compensate it for the loss of the economic value of the well \\u2014 lost potential profits\\u2014 simply goes out on the court's bottom line holding that REO had not yet suffered any cognizable injury, because the well was worthless \\\"until and unless an exception to Rule 38 was obtained\\\" to permit the flow of a single molecule of gas from the well. REO never had any exploitable economic interest in the potential production of the REO gas well even though the contract gives it the right to operate its well subject to pertinent laws and regulations. The operating agreement cannot grant REO the right to operate the well in the sense of authorizing actual production and delivery of the gas. That is controlled by valid Texas statutes and applicable proration regulations of the Railroad Commission. Without a Rule 38 exemption, REO could not produce a molecule of gas.\\nWhat it could not legally do is no basis for a claim for lost profits, because no economic value ever attached to the well. Even if NGPL had not opposed REO's application for a Rule 38 exception and REO had not voluntarily withdrawn the application, there is no probative certainty that the Commission would have approved the exception. In fact, REO concedes that the possibility of an exception is remote. The parties do not contest that one well can drain all of the recoverable gas reserves beneath the acreage. Thus the court properly held that REO has not been injured.\\nNo Causation\\nREO's complaint that the District Court incorrectly decided the issue of causation can easily be disposed of.\\nThe District Court held that even if NGPL's actions breached the contract and even if REO suffered damages, REO's damages were not causally related to the breach. This was so because it was the voluntary withdrawal of its application for a Rule 38 exception that brought about the worthlessness of REO's gas well. Assuming, without deciding, the correctness of this conclusion, there is no probative certainty that the Commission would have approved REO's application for an exemption if NGPL had not opposed the application. Thus there was no clear causal link between NGPL's action and any injury. REO's contentions ignore this lack of a threshold causal link. Thus the court correctly decided that NGPL's actions were not the cause of any injury to REO.\\nNo Case\\nTherefore, because REO has shown no breach of contract, no injury, and no damages caused by NGPL's actions, the District Court is correct.\\nAFFIRMED.\\n. The parties have stipulated to this ownership scheme. Documents in this record, which may be incomplete on the point since ownership of the oil rights is not disputed, suggest that REO owns less than all the oil rights (i.e., only limited farm-out rights; see infra, note 2) or did when this controversy arose.\\nSeparate ownership of the oil rights and gas rights in the same tract of land is common in the Texas Panhandle. This separation of rights is known as \\\"phase severance.\\\" See, e.g., Amarillo Oil Co. v. Energy-Agri Prod., 794 S.W.2d 20, 21 (Tex.1990); Note, Phase Severance of Gas Rights from Oil Rights, 63 Tex.L.Rev. 133, 133\\u2014 37 (1984).\\n. In 1935, Sinclair Prairie Oil Company, the successor to a 1926 oil and gas lease on the subject acreage known as the \\\"Troutman Property,\\\" separated the oil and gas rights by assigning the gas rights under the lease to Texoma Natural Gas Company. The assignment incorporated by reference a 1933 Operating Agreement that had been concluded between the same parties to govern their activities as oil operator and gas operator on other specified properties with severed oil and gas rights. NGPL is the successor to Texoma's gas rights. Maynard Oil Company succeeded to Sinclair's oil and casinghead gas rights.\\nREO drilled the well at issue here pursuant to a November 21, 1984 farm-out lease in which Maynard agreed to assign 25 percent of its interest in its oil rights to REO. On June 5, 1985 Maynard assigned to REO an undivided 25 percent of its interest \\\"INSOFAR AND ONLY INSOFAR as said lease covers rights . in the . well [at issue in this case],\\\" reserving for Maynard an overriding royalty interest. On April 15, 1986, Maynard assigned to REO all its interest in the lease \\\"INSOFAR AND ONLY INSOFAR as said lease covers rights . in [the same] well.\\\" The latter assignment was made effective November 19, 1985, and included rights under any contracts or agreements related to the lease.\\n. Operating agreements such as the one at issue here are designed to anticipate problems that might arise due to the separate ownership. A significant problem can arise when one operator drills but encounters the other's product. Without an agreement, the operator could not produce the other's product and might not be able to recover its drilling costs. To encourage continued development of the lease through drilling and production, avoiding possible termination of the lease or delay rentals or shut-in royalties resulting under standard oil and gas leases in the absence of production, and protecting both operators from such wasteful and harsh results, such agreements provide ways for the unsuccessful operator to recover his drilling costs by selling such a well or producing from it.\\nFor instance, the court in Southern Minerals Corp. v. Simmons, 111 F.2d 333 (5th Cir.), cert. denied, 311 U.S. 688, 61 S.Ct. 66, 85 L.Ed. 445 (1940) wrote, \\\"When [the parties] sought to separate the ownership of oil from gas, instead of leaving the matter in such shape that if one in drilling reached the other's product, he would have to plug the well and lose the drilling cost, the agreement was made that the well should be completed, with a right in the other to pay for it and take it over. Id. at 336. See also, e.g., Guffey v. Stroud, 16 S.W.2d 527 (Tex.Comm'n.App.1929, opinion adopted) (adjudication of rights where oil lessee produced gas and no operating agreement was involved).\\n. A well designated Troutman 1-SP produced from 1935-1963, and was replaced by Troutman R-l-SP, which has been producing since 1963.\\n. Paragraphs V and VII provide:\\n[V] In event the Oil Operator while drilling for oil shall encounter gas and does not elect to continue drilling to a greater depth in search for oil, or drills deeper in search for oil but does not find it, then and in either such event, and if and when the well upon its completion as a gas well shows on joint production test a capacity to produce at a rate of more than three million (3,000,000) cubic feet of gas per day, the Gas Operator shall have the option to purchase such well (but it shall not be required to do so) at the net cost thereof including necessary equipment to the formation from which such gas is being produced, (net cost to include Fifty Dollars ($50.00) per month for overhead and supervision while drilling), except that the Gas Operator shall not be required to reimburse the Oil Operator in an amount greater than the usual and ordinary costs of drilling and equipping such wells in the vicinity. Within twenty (20) days after Oil Operator has completed such a gas well, it shall tender in writing, by registered mail, such well to the Gas Operator; together with an estimated itemized statement of such net cost thereof. After receipt of such tender the Gas Operator shall have ten (10) days, during which time it shall notify Oil Operator of its election to purchase or of its rejection to purchase such well. In event the Gas Operator elects to purchase said gas well, it shall pay to Oil Operator such net cost as above set forth within twenty (20) days from and after receipt of the final itemized statement, including the actual cost in place of any new material or the reasonable cash value of same if second hand. However, should Gas Operator fail within said ten (10) days to notify Oil Operator of its election to so purchase said gas well, then Oil Operator shall own said well and have the right, subject to the limitations herein named, to operate such well (but it shall not be required to do so unless indispensable to prevent cancellation of the lease, and shall not be required to do so in any event if there be no available market for the product) for its own use and benefit. In the event Oil Operator operates such gas well, it shall pay to the lessor, his heirs or assigns, the gas rental or royalty provided for in the lease upon which said well is located.\\n[VII] In the event Oil Operator, in drilling for oil shall bring in a gas well with an open flow volume at the rate of three million (3,000,000) or less cubic feet per day, or the Gas Operator, in drilling for gas, shall encounter oil production in a well of twenty-five (25) barrels, or less, per day on a ten (10) days' consecutive test, and the party drilling such well does not elect to continue drilling deeper in search of its own product, or does so without finding it, then such drilling party shall notify the other party, in writing, within ten (10) days after the end of the production test, and enclose an itemized estimated statement of the cost of drilling such well and information as to its production and formation, whereupon the other party shall have the right and option (but it is not required to do so), at any time within ten (10) days from the receipt of such written notice, to take over such well by paying one-half (I/2) of the cost thereof under the same terms and conditions as set out in Paragraphs IV* and V above, whichever may be applicable thereto. If the party entitled to purchase said well as aforesaid does not desire and elect to take over such well by paying one-half (V2) of the cost thereof, the party drilling the well shall own said well and the production therefrom, and shall have the right to operate such well for its own use and benefit, subject to the limitations herein contained, (but is not required to do so unless indispensable to prevent cancellation of the lease, and shall not be required to do so in any event if there be no available market for the product).\\n(Emphasis added; * Paragraph IV applies to oil wells drilled by the gas producer.)\\n. Tex.Admin.Code, tit. 16, \\u00a7 3.38 (1988 & 1990-91 West Supp.) [hereafter cited as 16 TAC \\u00a7 xx (19xx) ]. The section in effect in 1985 provided: \\\"No well shall be drilled on less, but may be drilled on more, acreage than that required for a standard proration unit as established in the applicable rules for any oil, gas, or geothermal resource field except as provided in this section.\\\" Id. \\u00a7 3.38(a)(1) (1988) (effective January 1, 1976). The current language, id. at \\u00a7 3.38(b)(1) (1990-91 Supp.), is similar: \\\"No well shall be drilled on substandard acreage except as hereinafter provided.\\\"\\nRule 38 is read in conjunction with the applicable field rules. Rule 3 of the Commission's special gas field rules applies to the West Panhandle Field: \\\"[T]he standard proration unit, or acres to be assigned the well for gas allocation purposes, shall be six hundred forty (640) continuous and contiguous acres....\\\" Railroad Commission of Texas, Oil and Gas Division, Oil and Gas Docket No. 108, Special Order No. 10-13,196, Adopting and Promulgating Field Rules to Apply to All Gas Wells Located in the West Sweet and West Sour Areas of the Panhandle Field, Rule 3(a), September 24, 1948. The currently effective language is similar: \\\"[n]o gas proration unit shall contain less than six hundred forty (640) acres.\\\" Railroad Commission of Texas, Oil and Gas Division, Docket No. 10-87,017, Amended Final Order Adopting and Clarifying Rules and Regulations, March 20, 1989.\\n. \\\"The commission, in order to prevent waste or . to prevent the confiscation of property, may grant exceptions to the density provisions....\\\" 16 TAC \\u00a7 3.38(a)(4) (1988) (effective January 1, 1976). The same language appears in the current version of Rule 38 at 16 TAC \\u00a7 3.38(f) (1988 & 1990-91 Supp.).\\n. The motion for partial summary judgment reserved for trial the remaining issues of the amount of damages and attorneys' fees.\\n. Ryan Consol. Petroleum Corp. v. Pickens, 155 Tex. 221, 285 S.W.2d 201 (1955), cert. denied, 351 U.S. 933, 76 S.Ct. 790, 100 L.Ed. 1462 (1956).\\n. Texas Co. v. Daugherty, 107 Tex. 226, 176 S.W. 717 (1915).\\n. Humble Oil & Ref. Co. v. West, 508 S.W.2d 812 (Tex.1974).\\n. W.T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27 (1929).\\n. Technical Consultant Services, Inc. v. Lakewood Pipe, 861 F.2d 1357, 1362 (5th Cir.1988) (citing Myers v. Gulf Coast Minerals Management Corp., 361 S.W.2d 193, 196 (Tex.1962)); Kutka v. Temporaries, Inc., 568 F.Supp. 1527, 1534 (S.D.Tex.1983); Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983).\\n. Deauville Corp. v. Federated Dep't Stores, Inc., 756 F.2d 1183, 1193 (5th Cir.1985) (applying Texas law); Watkins v. Petro-Search, Inc., 689 F.2d 537, 538 (5th Cir.1982) (applying Texas law); Kutka, 568 F.Supp. at 1534; Reilly v. Rangers Management, Inc., 727 S.W.2d 527, 529 (Tex.1987); Coker, 650 S.W.2d at 394.\\n. Sun Oil Co. (Delaware) v. Madeley, 626 S.W.2d 726, 727 (Tex.1981).\\n. Technical Consultant, 861 F.2d at 1362 (applying Texas law); see also, Deauville, 756 F.2d at 1193; Watkins, 689 F.2d at 538; Kutka, 568 F.Supp. at 1534; Reilly, 727 S.W.2d at 529; Coker, 650 S.W.2d at 393-94.\\n. Watkins, 689 F.2d at 538 (citing Sun Oil, 626 S.W.2d at 727-28)); Reilly, 727 S.W.2d at 529; Ideal Lease Serv., Inc. v. Amoco Prod. Co., Inc., 662 S.W.2d 951, 953 (Tex.1983); Coker, 650 S.W.2d at 393.\\n. Deauville, 756 F.2d at 1193; Coker, 650 S.W.2d at 393.\\n. Reilly, 727 S.W.2d at 529.\\n. Technical Consultant, 861 F.2d at 1362; Deauville, 756 F.2d at 1193; Watkins, 689 F.2d at 538; Reilly, 727 S.W.2d at 529; Coker, 650 S.W.2d at 394.\\n. Reilly, 727 S.W.2d at 530; Henshaw v. Texas Natural Resources Foundation, 147 Tex. 436, 216 S.W.2d 566, 570 (1949).\\n. 111 F.2d 333 (5th Cir.), cert. denied, 311 U.S. 688, 61 S.Ct. 66, 85 L.Ed. 445 (1940).\\n. Id. at 336-37 (emphasis added).\\n. Id. at 336 (emphasis added).\\n. 16 TAC \\u00a7 3.38(a)(4) (1988) (effective January 1, 1976); Id. \\u00a7 3.38(f) (1988 & 1990-91 Supp.).\\n. Id. \\u00a7 1.24 (1988) (effective January 1, 1976).\\n. Kennard v. McCray, 648 S.W.2d 743, 745 (Tex.Ct.App.1983).\\n. Atlantic Richfield Co. v. Exxon Corp., 663 S.W.2d 858, 870 (Tex.Ct.App.1983), rev'd on other grounds, 678 S.W.2d 944 (Tex.1984); Emmord's, Inc. v. Obermiller, 526 S.W.2d 562, 565 (Tex.Civ.App.1975).\\n.Certain specific implied covenants are recognized by Texas courts construing oil and gas leases. They are: \\\"(1) to develop the premises, (2) to protect the leasehold, and (3) to manage and administer the lease.\\\" Amoco Prod. Co. v. Alexander, 622 S.W.2d 563, 567 (Tex.1981) (oil company owed its lessor a duty to seek administrative relief).\\nCf. Sun Exploration and Production Co. v. Jackson, 31 Tex.Sup.Ct.J. 604, 1988 WL 220582 (July 13, 1988) (implied covenant of further exploration of leased premises after securing production), withdrawn on motion for rehearing, 783 S.W.2d 202 (Tex.1989) (no implied covenant of further exploration exists independent of implied covenant of reasonable development); Cabot Corp. v. Brown, 754 S.W.2d 104, 106 (Tex.1987) (implied duty to \\\"obtain the best price reasonably possible,\\\" rather than a fair or reasonable price); Texas Oil and Gas Corp. v. Hagen, 31 Tex.Sup.Ct.J. 140, 1987 WL 47847 (Dec. 15, 1987) (oil and gas lease imposes duty upon lessee to act as a reasonably prudent operator, but not a duty to act with \\\"highest good faith\\\" in marketing lessor's gas), opinion withdrawn [pursuant to parties' settlement agreement], 760 S.W.2d 960 (Tex.1988).\\nAlthough the precise limits of these covenants may be uncertain, their purpose is to give effect to the intent of the parties in creating an oil and gas lease. The provisions REO contends should be implied are not of this nature.\\n. Fuller v. Phillips Petroleum Co., 872 F.2d 655, 658 (5th Cir.1989); Kutka v. Temporaries, Inc., 568 F.Supp. 1527, 1535-36 (S.D.Tex.1983); Danciger Oil & Ref. Co. v. Powell, 137 Tex. 484, 154 S.W.2d 632, 635 (1941); Grimes v. Walsh & Watts, Inc., 649 S.W.2d 724, 727 (Tex.Ct.App.1983); Stalcup v. Eastham, 330 S.W.2d 237, 240 (Tex.Civ.App.1959).\\n. See, e.g., Television Cable Service, Inc. v. Bryant, 684 S.W.2d 196, 198-99 (Tex.Ct.App.1984) (for discussion of primary jurisdiction as applied under Texas law).\\nFor Federal purposes, the doctrine of primary jurisdiction is healthy and frequently used. See, e.g., Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U.S. 411, 79 S.Ct. 1210, 3 L.Ed.2d 1334 (1959) (affirming primary jurisdiction reference to ICC of tariff matter within agency's competence, 253 F.2d 922 (5th Cir.1958)); Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907) (even though action existed at common law and statute authorized suit in federal district court or complaint before ICC, plaintiff must invoke redress through ICC which had power to alter unreasonable rates in established schedules); Huber Corp. v. Denman, 367 F.2d 104, 111-12, 120-21 (5th Cir.1966) (directing reference, under doctrine of primary jurisdiction, to FPC to determine question of its own jurisdiction over matter arguably within jurisdiction of the commission); Weymouth v. Colorado Interstate Gas Co., 367 F.2d 84, 101-03 (5th Cir.1966) (companion case to Huber, same); Carter v. American Tel. & Tel. Co., 365 F.2d 486 (5th Cir.1966) (affirming primary jurisdiction reference to FCC of tariff validity in private antitrust action), cert. denied, 385 U.S. 1008, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967); Mobil Oil Corp. v. FPC, 463 F.2d 256, 265-66 (D.C.Cir.1971) (on review of FPC orders following primary jurisdiction reference in Huber, reversing FPC's orders and approving court reference to commission under \\\"broad and supple doctrine of primary jurisdiction\\\"), cert1 denied sub nom Mobil Oil Corp. v. Matzen, 406 U.S. 976, 92 S.Ct. 2409, 32 L.Ed.2d 676 (1972); Annotation, The Doctrine of Primary Jurisdiction as Defined and Applied by the Supreme Court, 38 L.Ed.2d 796.\\n. Television Cable Service, 684 S.W.2d at 198-99 (quoting D & S Investments, Inc. v. Mouer, 521 S.W.2d 118 (Tex.Civ.App.1975), citing Davis, Administrative Law Doctrines, 28 Tex.L.Rev. 376, 400 (1950)); see also, U.S. v. Western Pac. R.R. Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956).\\n. Penny v. Southwestern Bell Tel. Co., 906 F.2d 183, 187 (5th Cir.1990) (applying Texas law); Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411, 413 (1961); Television Cable Service, 684 S.W.2d at 199.\\n. Amarillo Oil Co. v. Energy-Agri Products, Inc., 794 S.W.2d 20, 26 (Tex.1990) (title to gas); Railroad Comm 'n v. City of Austin, 524 S.W.2d 262, 268 (Tex.1975) (title to gas); Jones v. Killingsworth, 403 S.W.2d 325, 328 (Tex.1965).\\n. Foree v. Crown Cent. Petroleum Corp., 431 S.W.2d 312, 316 (Tex.1968).\\n. Biskamp v. General Crude Oil Co., 452 S.W.2d 515, 517 (Tex.Civ.App.1970).\\n. Tex.Nat.Res.Code Ann. \\u00a7 81.051 (Vernon 1978).\\n. Texas law denies recovery of potential profits where damages are uncertain or speculative. Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1099 (1938). Furthermore, because REO has alleged only a hypothetical injury, there may be no \\\"case or controversy,\\\" and it is highly doubtful that REO has standing to sue for such damages in federal court. Mideast Sys. and China Civil Constr. Saipan Joint Venture, Inc. v. Hodel, 792 F.2d 1172, 1176 (D.C.Cir.1986).\\n. The party complaining of a breach of contract carries the burden of proving that he suffered pecuniary loss as a result of the breach. Copenhaver v. Berryman, 602 S.W.2d 540, 543 (Tex.Civ.App.1980).\"}"
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+"{\"id\": \"10602739\", \"name\": \"TEAMSTERS LOCAL UNION 769, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, Helpers of America, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Peoples Gas System, Inc., Intervenor\", \"name_abbreviation\": \"Teamsters Local Union 769 v. National Labor Relations Board\", \"decision_date\": \"1976-04-08\", \"docket_number\": \"No. 75-1250\", \"first_page\": \"1385\", \"last_page\": \"1397\", \"citations\": \"532 F.2d 1385\", \"volume\": \"532\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:56:06.985894+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BAZELON, Chief Judge, TAMM, Circuit Judge and JUSTICE, United States District Judge for the Eastern District of Texas.\", \"parties\": \"TEAMSTERS LOCAL UNION 769, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, Helpers of America, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Peoples Gas System, Inc., Intervenor.\", \"head_matter\": \"TEAMSTERS LOCAL UNION 769, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, Helpers of America, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Peoples Gas System, Inc., Intervenor.\\nNo. 75-1250.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued Jan. 13, 1976.\\nDecided April 8, 1976.\\nRehearing Denied May 13, 1976.\\nSeymour A. Gopman, North Miami Beach, Fla., for petitioner. William T. Coleman, Jr., Miami, Fla., was on the brief for petitioner.\\nElliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., with whom John C. Miller, Acting Gen. Counsel and John S. Irving, Jr., Deputy Gen. Counsel, N. L. R. B., Washington, D. C., were on the brief for respondent.\\nJesse S. Hogg, Coral Gables, Fla., with whom W. Reynolds Allen, Coral Gables, Fla., was on the brief for intervenor.\\nBefore BAZELON, Chief Judge, TAMM, Circuit Judge and JUSTICE, United States District Judge for the Eastern District of Texas.\\nSitting by designation pursuant to 28 U.S.C. \\u00a7 292(d).\", \"word_count\": \"4286\", \"char_count\": \"26207\", \"text\": \"Opinion for the court by Chief Judge BAZELON.\\nCircuit Judge TAMM dissents from the opinion.\\nBAZELON, Chief Judge:\\nIn September, 1966 Teamsters Local Union 769, the petitioner, was certified by the NLRB as the exclusive bargaining representative of the production, maintenance and distribution employees of Peoples Gas System Inc.'s Miami operations. The Union and employer signed a three-year contract in 1967 and, after a strike in February, 1970, signed a second three-year contract that expired on February 6,1978. Negotiations on a third contract began on January 9, 1973. After six bargaining sessions and several communications by phone and letter, the Company, on April 23, 1973, filed a representation election petition with the Board and thereafter refused to bargain further with the Union.\\nOn May 15, 1973, the Union filed an unfair labor practice charge with the Board, alleging that the employer's refusal to bargain violated \\u00a7 8(a)(5) of the National Labor Relations Act, 29 U.S.C. \\u00a7 158(a)(5). The General Counsel issued a complaint, and after conducting hearings, the Administrative Law Judge found the Company guilty of an unfair labor practice. His decision was reversed by a three-member panel of the Board. After the Union's petition for reconsideration was denied, the Union filed this appeal.\\nI\\nA threshold question has been raised by the Intervenor-Employer in a motion to dismiss the appeal as moot. In support of this motion Intervenor notes that the record, as supplemented by order of this court in response to an earlier motion by Intervenor, reveals that on the day after its motion for reconsideration was denied, the Union filed a petition for certification of representative with the Board. An election was held on May 30, 1975, which the Union lost by roughly a 3-2 margin. No objections to the election were filed, and on June 10, 1975, the results were certified. Intervenor contends that even if its refusal to bargain were unlawful, the likelihood of repetition is now almost nil, since there currently is no bargaining representative for the unit. In-tervenor therefore urges this court to exercise its discretion to decline to adjudicate this case.\\nImplicit in Intervenor's argument is the assumption that even if the Union were to prevail on the merits, the only appropri ate remedy after the Union's election defeat would be a cease and desist order aimed against future refusals to bargain. If all that were at issue were the possible issuance of a cease and desist order, Inter-venor's argument might be persuasive. But we agree with the position taken by counsel for the Board that the Board's remedial powers are not so limited. At least at this stage of the proceedings, we are not prepared to say that were the Board's decision to be reversed, the Board would be powerless to mandate a new election or even to issue a bargaining order. To be sure, the Board's practice has been not to issue a bargaining order on the basis of pre-election refusals to bargain if a union thereafter loses an election and the results are certified. Nor has the Board entertained challenges to elections based on conduct occurring before the election petitions were filed. But these rules were developed to prevent parties from bypassing the Board, seeking an election, and then, if unsuccessful in a fair election, seeking relief from the Board. Intervenor concedes that this appears to be the first case in which an election was requested and held only after all Board remedies had been exhausted and solely as a means of \\\"bypassing\\\" the courts \\u2014 that is, of avoiding the delay attendant upon appellate review. We do not believe the Board would lack the power \\u2014 and will not speculate as to whether it would have the will \\u2014 to create an exception to its rules in this case. Accordingly, we reach the merits of the petition for review.\\nII\\nThe Board's decision begins with a statement of the well-established principle applicable to withdrawals of recognition from incumbent unions:\\nAfter the certification year has run, an employer may lawfully withdraw recognition from an incumbent union because of an asserted doubt of the union's continued majority, if its withdrawal occurs in a context free of unfair labor practices and is supported by a showing of objective considerations providing reasonable grounds for a belief that a majority of the employees no longer desire union representation. infringement and thereafter had no test failures after the pile was formed.\\nThis formulation is in general conformity with our requirement that serious doubt of the Union's majority be shown, and essen tially is not contested on this appeal. What is at issue here is whether there was a sufficient objective basis to give rise to such a doubt.\\nThe Board relied on a combination of three factors to find an objective basis for a reasonable doubt. First, it noted that from February, 1970, immediately before a strike, to April, 1973, there was a \\\"severe and dramatic\\\" decline in the number of dues-checkoff authorization cards on file with the Company. In 1970, 76% of all members of the unit, and 90% of all non-probationary members\\u2014persons who had been employed for over 90 days and under company policy were eligible for checkoff\\u2014 had submitted authorizations; in 1973 the comparable figures were 39% and 51%.\\nSecond, the Board discussed what it termed \\\"a sudden and unexplained change in bargaining posture under circumstances strongly suggestive of a lack of confidence by the Union itself as to the degree of support it had maintained.\\\" Specifically the Board noted that the Union, after having insisted throughout the 1973 negotiations that it would strike if no agreement had been reached when the old contract expired, announced on February 2, four days before the expiration date, that the bargaining committee would submit the employer's final but incomplete offer to the membership, but would recommend rejection; that on February 5th the bargaining committee reversed itself and recommended acceptance of the offer; and that after a series of communications, concerning what agreement, if any, had been reached, the Union, on April 11, 1973 and again several times after the Company withdrew recognition, announced its willingness to sign whatever agreement the Company drafted, subject to the Union's right to proceed through the Board to vindicate its claim that agreement already had been reached on certain issues.\\nThird, the Board noted substantial changes in the composition of the unit since 1970. During the strike, 40% of the work force had been permanently replaced. In September, 1972, the size of the unit increased 17% by the addition of previously non-unionized employees acquired in a merger with a competitor; none of those employees had submitted checkoff authorization cards as of April, 1973 despite an organizational effort beginning in January, 1973. And from September, 1972 to April, 1973, the unit experienced a 36% turnover.\\nRelying on \\\"the totality of these circumstances,\\\" the Board found that the employer had an objective basis for doubting the Union's continuing majority.\\nIll\\nPetitioner contends that the employer could not reasonably have doubted the Union's majority when a majority of the eligible employees had submitted checkoff authorizations. Insofar as petitioner argues for a per se prohibition on employers ever withdrawing recognition from an incumbent union under these circumstances, we cannot agree. Just as an employee's decision not to submit an authorization card does not necessarily mean he opposes the union, so, too, a decision to submit a card\\u2014or not to withdraw an already submitted card\\u2014does not necessarily mean the employee supports the union. Decisions to submit or not withdraw authorizations may be attributable to confusion, ignorance, peer pressure, and, in cases of failure to withdraw, to procrastination or inertia. For these reasons, the Board has more than once upheld an employer's refusal to bargain with an incumbent union even though a majority of the employees had submitted checkoff authorizations. In an appropriate case, we would agree.\\nBut insofar as petitioner is contending that the employer bears a heavy burden in this case, petitioner is clearly correct. The Union can claim the benefit of two well-established presumptions (in addition to the general presumption that an incumbent union has a continuing majority): (1) that all the employees on checkoff \\u2014 51% of the nonprobationary employees \\u2014 supported the Union as their bargaining representative; and (2) that the same proportion of new or probationary employees \\u2014 51%\\u2014also supported the Union. In light of these presumptions, the employer could reasonably doubt the Union's continuing majority if, but only if, there were an objective basis for believing either that (a) the checkoff cards overstated the Union's support among the nonprobationary employees, or (b) a lesser percentage of the probationary employees supported the Union such that the Union lacked a majority of the total unit. In finding an objectively based reasonable doubt, however, the Board's opinion fails to focus on these narrow issues; indeed, the opinion does not appear to attach any significance to the fact that a majority of the eligible employees were on checkoff. Consequently, we are left at large to speculate as to the relevance of the factors on which the Board did rely.\\nOur difficulty becomes clear when those factors are separately analyzed. The Board first considered the decline in the employees on checkoff. The courts and the Board have recognized the relevance of this consideration when less than a majority of the employees were on checkoff. In those cases the trend of checkoffs strengthened the inference that the low number of checkoff cards reflected a lack of union support. Here, however, the significance of the trend is unclear. Does the decline indicate that persons still on checkoff actually may not support the Union? Does it indicate that persons not yet eligible for checkoff do not support the Union? We do not mean to suggest that the Board could not answer either or both of these questions in the affirmative. The point is that the Board has not provided us with a reasoned basis for doing so.\\nMuch the same is true when the Board's second factor, changes in composition of the unit, is considered. Again, this factor has been considered relevant in other cases, generally when used to impeach the contin uing vitality of an earlier showing of support such as an election. But here the issue is not the significance of some past showing of support, but of a present showing. Thus, the relevance of turnover prior to the present showing of support is attenuated.\\nThe changes in composition on which the Board relied can be divided into two types. First is the 40% turnover occurring after the 1970 strike, and the 17% accretion resulting from the 1972 merger \\u2014 changes \\\"under circumstances suggesting a lesser degree\\\" of Union support. But all the persons added as a result of these two events already were, if they were still employed by the Company, nonprobationary employees at the time recognition was withdrawn. Thus, they already were counted as part of the 51% on checkoff or the 49% off. Perhaps the Board intended to conclude that the circumstances under which these employees were added suggests that even those who submitted authorization cards might not have been Union supporters, so that the 51% figure is misleading. Or perhaps the Board thought these circumstances were relevant to the issue of Union support among new employees. But again the Board failed to articulate its reasons for so concluding.\\nThe second aspect of the change in composition was the 36% turnover from September, 1972 to April, 1973 \\u2014 turnover under \\\"neutral\\\" circumstances. The relevance of this turnover is even less clear. Precisely because the circumstances surrounding the turnover were neutral, the high rate\\u2014 projected to 61% annually \\u2014 does not appear relevant to establishing doubt as to whether the probationary employees desired to be represented by the Union.\\nThe final factor considered by the Board \\u2014 the Union's \\\"strange\\\" behavior during negotiations \\u2014 is directly relevant to impeaching the significance of the number of employees on checkoff. But the Board's opinion does not indicate whether it regarded the bargaining events as alone sufficient to support its decisions, yet, as already noted, the Board failed to explain the relevance of the other factors. Accordingly, we return the case to the Board for reconsideration and rearticulation of its decision.\\nIV\\nWe briefly consider several additional claims of error raised by petitioner, in the hope of shortcircuiting any future litigation after the proceedings on remand. In so doing, we do not decide whether these grounds, either separately or together, would provide an independent basis for reversing the Board.\\n1. Much of the evidence concerning changes in composition of the unit and the decline in checkoff authorizations was not based on the first-hand knowledge of the witness who supplied it, the counsel to the Company, but on what he was told by personnel in the Company's payroll department. Although petitioner did not object to every hearsay statement, and stipulated to much of the evidence concerning the trend in checkoffs, the hearsay objection was repeatedly advanced. The Administrative Law Judge's ruling is not entirely clear, but it appears that he admitted the testimony solely to establish the Company's motivation for withdrawing recognition, and not to prove an objective basis for action The ALJ's opinion clearly assigns little weight to the hearsay testimony The Board, however, treated the testimony as fully probative evidence. Petitioner argues that the Board erred in so doing.\\nThat the Board has some discretion to admit evidence that would be inadmissible in a court of law cannot be denied. Nor can its power to overrule an ALJ's ruling on evidentiary issues be questioned. But the Board at least should address the evidentiary questions, and articulate its reasons for reversing the ALJ. \\u2022 In this case the Board failed to do so.\\n2. Petitioner points to a number of areas in which it alleges the Board decision is inconsistent with prior or subsequent Board decisions. The Board cannot be expected, on pain of reversal, to anticipate and distinguish every marginally relevant case that a litigant might uncover in preparing a petition for review. But the Rule of Law requires that agencies apply the same basic standard of conduct to all parties appearing before them. Thus, \\\"if an agency glosses over or swerves from prior precedents without discussion it may cross the line from the tolerably terse to the intolerably mute.\\\"\\nSome of the cases to which petitioner points are so palpably distinguishable that there was no need for the Board to address them. But in at least two re spects, petitioner's argument has some merit. First, in drawing an inference from the decision of the employees added by merger not to submit checkoff cards, the Board appears to have ignored its decisions holding that such a decision does not mean the employees oppose representation by the Union. Second, the Board recited events that occurred after the employer withdrew recognition from the Union, suggesting that it was relying on such events in contravention of several Board decisions. We do not mean to imply that the Board necessarily was precluded from relying on these facts. It was, however, required to justify its decision to do so.\\nReversed.\\n. NLRB v. Typographical Local 101, 152 U.S.App.D.C. 365, 470 F.2d 1274 (1972).\\n. See NLRB v. Raytheon Co., 398 U.S. 25, 27, 90 S.Ct. 1547, 1548, 26 L.Ed.2d 21, 24 (1970).\\n. See, e. g., Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d 233, 241 (1964); 29 U.S.C. \\u00a7 160(c) (1970).\\n. Irving Air Chute, 149 NLRB 627 (1964), enforced, 350 F.2d 176 (2d Cir.1965); see Retail Clerks Local 1401 v. NLRB, 149 U.S.App.D.C. 370, 463 F.2d 316 (1972). See also Bernel Foam Products, 146 NLRB 1277 (1964).\\n. Goodyear Tire & Rubber Co., 138 NLRB 453 (1962); Ideal Electric & Manufacturing Co., 134 NLRB 1275 (1961).\\n. Peoples Gas System, Inc., 214 NLRB No. 141 at 2 (1974).\\n. See, e. g., Industrial Wrkrs. Local 289 v. NLRB, 155 U.S.App.D.C. 112, 476 F.2d 868, 881 (1973) and Machinists Lodges 1746 and 743 v. NLRB, 135 U.S.App.D.C. 53, 416 F.2d 809, 812 (1969), cert. denied, 396 U.S. 1058, 90 S.Ct. 751, 24 L.Ed.2d 752 (1970), quoting Stoner Rubber Co., 123 NLRB 1440, 1445 (1959).\\n.See Bartenders, Hotel, Motel & Restaurant Employers Bargaining Ass'n, 213 NLRB No. 74 at 9 (1974) (equating \\\"reasonable doubt\\\" and \\\"serious doubt\\\"). Compare cases cited note 7 supra with Dallas Drivers Local 745 v. NLRB, 163 U.S.App.D.C. 100, 500 F.2d 768, 770 (1974), and Retail Union v. NLRB, 151 U.S.App.D.C. 209, 466 F.2d 380, 393 (1972) (both employing a \\\"reasonable doubt\\\" test).\\nThis court, along with other circuits, see, e. g., NLRB v. Washington Manor Inc., 519 F.2d 750, 751 (6th Cir.1975); Retired Persons Pharmacy v. NLRB, 519 F.2d 486, 489 (2d Cir.1975); Orion Corp. v. NLRB, 515 F.2d 81 (7th Cir. 1975), and the Board, see, e. g., Guerdon Industries, 218 NLRB No. 69 (1975); Celanese Corp., 95 NLRB 664 (1951), has repeatedly held that to be a defense, a \\\"reasonable\\\" or \\\"serious\\\" doubt requires both objective facts to support it and good faith in asserting it. Here, however, the Board did not discuss the employer's motivation in withdrawing recognition from the Union. Petitioner does not contend, however, that the Board deviated from its prior decisions in this regard.\\n. During all times relevant to this case, Florida was a right to work state.\\n. Intervenor contends that the ALJ and the Board erred in including two employees as being on checkoff, and that without these employees the relevant percentage would be under 50%. We cannot say, however, that the Board's factual finding is without substantial support in the record.\\n. The Board also stated that from 1970 to 1973 the turnover rate was 36%. That statement does not appear to be supported by anything in the record.\\n. See, e. g., Terrell Machine Co. v. NLRB, 427 F.2d 1088 (4th Cir.), cert. denied, 398 U.S. 929, 90 S.Ct. 1821, 26 L.Ed.2d 91 (1970); NLRB v. Gulfmont Hotel Co., 362 F.2d 588 (5th Cir. 1966); Harpeth Steel Inc., 208 NLRB 545 (1974); Barrington Plaza & Tragniew, Inc., 188 NLRB 962 (1970), enforcement denied in part, 470 F.2d 669 (9th Cir.1972).\\n. This is especially true where, as here, the authorization cards, by their terms, are revocable for only a ten day period each year.\\n. Mitchell Standard Corp., 140 NLRB 496 (1963); Randall Co., 133 NLRB 289 (1961).\\n. See, e.g., Machinists Lodges 1746 & 743, supra note 7, at 812 n.8; NLRB v. Howe Scale Co., 311 F.2d 502, 505 (7th Cir.1963); NLRB v. Auto Ventshade, Inc., 276 F.2d 303, 307 (5th Cir.1960); United Supermarkets, Inc., 214 NLRB No. 142 at 3 (1974); Mitchell Standard Corp., supra note 14, at 500.\\n. See, e.g., Strange & Lindsey Beverages, Inc., 219 NLRB No. 190 (1975); Laystrom Manufacturing Co., 151 NLRB 1482 (1965), enforcement denied, 359 F.2d 799 (7th Cir.1966). See also, e.g., NLRB v. King Radio Corp., 510 F.2d 1154, 1156 (10th Cir.), cert. denied, 423 U.S. 839, 96 S.Ct. 68, 46 L.Ed.2d 58 (1975); Dallas Drivers Local 745 v. NLRB, supra note 8, at 771.\\n. National Cash Register Co. v. NLRB, 494 F.2d 189, 194-95 (8th Cir.1974); Ingress-Plastene, Inc. v. NLRB, 430 F.2d 542, 546-47 (7th Cir.1970); NLRB v. H. P. Wasson & Co., 422 F.2d 558, 561 (7th Cir.1970); Convair Division, 169 NLRB 131 (1965). See also Machinists Lodges 1746 & 743 v. NLRB, supra note 7, at 812 (relying on decline in checkoff cards but not specifying percentage on checkoff).\\n. Although unstated, the justification appears to be that since the reasons why union supporters would not submit authorization cards remain constant over time, a sharp decrease in the number of cards suggests a decrease in union support (and not an increase in the number of supporters not on checkoff).\\n. See e.g., Taft Broadcasting, 201 NLRB 801 (1973); Lloyd McKee Motors Inc., 170 NLRB 1278 (1968); Stoner Rubber Co., 123 NLRB 1440 (1959). But see, e.g., cases cited note 16 supra.\\n. Petitioner has not questioned whether the Board's assumption that replacements for strikers are less likely to support a union than strikers can be reconciled with decisions such as Industrial Wrkrs. Local 289 v. NLRB, supra note 7, at 881, James Whitfield Inc., 220 NLRB No. 64 (1975), or King Radio Corp., 208 NLRB 578 (1974), enforced, 510 F.2d 1154 (10th Cir. 1975), all holding that strikebreakers are not presumptively anti-union.\\n. In its brief, the Board fails to recognize this fact, and thus uses turnover in 1970 and in September of 1972 to support an inference that the new employees \\u2014 those hired after January, 1973 \\u2014 did not support the Union in the same ratio as the nonprobationary employees. Brief at 15 & n. 12.\\n. It would seem that, if anything, the new employees should more strongly support the Union than the old employees, since the new employees were not hired under circumstances suggesting a lesser degree of Union support.\\n. See, e.g., SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Sheet Metal Local 223 v. NLRB, 162 U.S.App.D.C. 145, 498 F.2d 687 (1974); UAW v. NLRB, 136 U.S.App.D.C. 104, 419 F.2d 686 (1969).\\n. It is unclear whether counsel's testimony regarding turnover after the 1970 strike was based on first hand knowledge. See Tr. at 170. The remainder of his statistical testimony admittedly was hearsay.\\n. See Tr. at 167 (stipulated that 90% of non-probationary employees on checkoff in 1970); Jt. Exhibit 1 (listing of all nonprobationary employees as of April 23, 1973 with indication of which were on checkoff).\\n. See Tr. at 170, 195-96, 197-98.\\n. Compare Tr. at 195, 196 (testimony admissible only to prove good faith) with id. at 198 (if documents were given to General Counsel, \\\"you can't contradict it unless it's not a fact, and if you think it's significant, present the testimony\\\").\\n. Tr. at 195, 196; cf. Schwarzenbach-Huber Co. v. NLRB, 408 F.2d 236 (2d Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 436, 24 L.Ed.2d 425 (1969).\\n. Peoples Gas System, Inc., supra note 6, at 17 (\\\"asserted replacement of 40 percent of the strikers\\\"), 21 (\\\"no probative evidence . to substantiate these figures\\\" concerning checkoff cards), 24 (\\\"unsubstantiated\\\" evidence regarding turnover \\\"a weak reed . to sustain a reasonable doubt\\\").\\n. 29 U.S.C. \\u00a7 160(b) (1970) states that \\\"so far as practicable,\\\" Board hearings \\\"[shall] be conducted in accordance with the rules of evidence . .\\\" The courts have read this section liberally. See, e.g., NLRB v. Addison Shoe Corp., 450 F.2d 115 (8th Cir.1971); NLRB v. Capitol Fish Co., 294 F.2d 868 (5th Cir.1961); NLRB v. W. B. Jones Lumber Co., 245 F.2d 388 (9th Cir. 1957); NLRB v. Hod Carriers Local 210, 228 F.2d 589 (2d Cir.1955).\\n. Cf. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Local 4-243, Oil Wrkrs. v. NLRB, 124 U.S.App. D.C. 113, 362 F.2d 943 (1966).\\n. See, e.g., Local 4-243, supra note 31, at 946; F. W. Means & Co. v. NLRB, 377 F.2d 683 (7th Cir. 1967). See also cases cited note 23 supra.\\n. Greater Boston TV Corp. v. FCC, 143 U.S. App.D.C. 383, 444 F.2d 841, 852 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 2233, 29 L.Ed.2d 701 (1971); see, e.g., Teamsters Local 814 v. NLRB, 167 U.S.App.D.C. 387, 512 F.2d 564, 567 (1975); id., at 571-72 & cases cited n.15 (Bazelon, C. J., dissenting in part).\\n. For example, petitioner complains that in considering its \\\"strange\\\" bargaining behavior, the Board ignored Kentucky News, 165 NLRB 777 (1967), holding that the failure to implement a strike threat was \\\"no basis for the conclusion . . . [of] lack of employee support.\\\" But there the Union's decision not to strike was an isolated event whereas here the Board considered the decision in the context of a series of events culminating in what the Board regarded as \\\"capitulation\\\" by the Union. Similarly, petitioner contends that Barrington Plaza & Tragniew, supra note 12, precluded the Board from considering the turnover after the 1970 strike because it was too remote in time. But Tragniew, by its terms, is limited to cases in which an employer defends against an 8(a)(5) charge by contending that at the time of a prior contract the union lacked majority support.\\n. See cases cited note 12 supra.\\n. See, e.g., Bartenders, Hotel, Motel & Restaurant Employers Bargaining Ass'n, supra note 8; Orion Corp., 210 NLRB 633 (1974), enforced, 515 F.2d 81 (7th Cir.1975).\\n.We do not consider intervenor-employer's contentions that the ALJ improperly excluded some of its evidence establishing an objective basis for the employer's doubt. .On remand the Board can reopen the hearings to consider this evidence if it finds the evidence already in the record insufficient to support the employer's claim, and further finds that the ALJ erred in excluding the additional evidence.\"}"
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+"{\"id\": \"11327518\", \"name\": \"Grogan v. United States\", \"name_abbreviation\": \"Grogan v. United States\", \"decision_date\": \"1968-10-14\", \"docket_number\": \"No. 142\", \"first_page\": \"830\", \"last_page\": \"830\", \"citations\": \"393 U.S. 830\", \"volume\": \"393\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:30:27.733487+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Grogan v. United States.\", \"head_matter\": \"No. 142.\\nGrogan v. United States.\\nHubert Humphrey for petitioner.\\nSolicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Sidney M. Glazer for the United States.\", \"word_count\": \"33\", \"char_count\": \"227\", \"text\": \"C. A. 5th Cir. Certiorari denied.\"}"
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+"{\"id\": \"11383035\", \"name\": \"Araceli G. MARTINEZ, Plaintiff, v. COLE SEWELL CORPORATION, a/k/a New Cole Sewell Corporation, Tim Nichols, and Brad Worrall, Defendants\", \"name_abbreviation\": \"Martinez v. Cole Sewell Corp.\", \"decision_date\": \"2002-12-06\", \"docket_number\": \"No. C 01-3052-MWB\", \"first_page\": \"1097\", \"last_page\": \"1142\", \"citations\": \"233 F. Supp. 2d 1097\", \"volume\": \"233\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States District Court for the Northern District of Iowa\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T23:13:12.749523+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Araceli G. MARTINEZ, Plaintiff, v. COLE SEWELL CORPORATION, a/k/a New Cole Sewell Corporation, Tim Nichols, and Brad Worrall, Defendants.\", \"head_matter\": \"Araceli G. MARTINEZ, Plaintiff, v. COLE SEWELL CORPORATION, a/k/a New Cole Sewell Corporation, Tim Nichols, and Brad Worrall, Defendants.\\nNo. C 01-3052-MWB.\\nUnited States District Court, N.D. Iowa, Central Division.\\nDec. 6, 2002.\\nJames T. Fitzsimmons, Fitzsimmons & Vervaeeke law, Mason City, IA, Mark D. Sherinian, Sherinian & Walker Law Firm, West Des Moines, IA, for Araceli G. Martinez.\\nDeborah M. Tharnish, Jo Ellen Whitney, Davis Brown Koehn Shors & Roberts, Des Moines, IA, for Cole Sewell Corp.\\nJo Ellen Whitney, Davis Brown Koehn Shors & Roberts, Des Moines, IA, for Tim Nichols, Lori Thomas, Brad Worrall.\\n. This defendant identifies himself in his deposition as Timothy E. Nickel. Therefore, he will be referred to throughout as \\\"Nickel,\\u201d rather than \\\"Nichols.\\u201d\", \"word_count\": \"22051\", \"char_count\": \"141497\", \"text\": \"MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT\\nBENNETT, Chief Judge.\\nTABLE OF CONTENTS\\nI. INTRODUCTION.1104\\nA. Factual Background.1104\\nB. Procedural Background.1107\\nII. LEGAL ANALYSIS.1108\\nA. Standards For Summarg Judgment.1108\\n1. Requirements of Rule 56 .1109\\n2. The parties' burdens.1109\\n3. Summarg judgment in emplogment discrimination cases.1110\\nB. Scope Of Martinez's Withdrawal Of Claims.1111\\n1. Scope of the express withdrawal .1111\\n2. Was there an implicit withdrawal of some claims?.1113\\nC. Title VII Claims .1114\\n1. Retaliation .1114\\na. Arguments of the parties.1114\\nb. Applicable law .1116\\nc. The record in light of applicable law .1118\\ni. Martinez's prima facie case of retaliation.1118\\nii. The shifting of burdens.1121\\n2. Constructive discharge.1122\\na. Arguments of the parties.1122\\nb. Applicable law .1122\\nc. The record in light of applicable law .1124\\nD. Disability Claims.1124\\n1. Arguments of the parties.1124\\n2. Analysis in light of applicable law .1126\\na. \\\"Disability\\\" within the meaning of the ADA.1127\\ni.What type of disability is at issue?.1127\\nii. Actual disability.1127\\niii. Record of disability.1131\\nb. Failure to accommodate.1132\\ni.The legal duty to accommodate.1132\\nii. Evidence of assignments beyond plaintiff's restrictions.1133\\niii. Obligations in the \\\"interactiveprocess.\\\".1134\\nc. Hostile environment.1135\\nd. Constructive discharge.1137\\nE. Intentional In\\u00f1iction Of Emotional Distress.1137\\n1. Arguments of the parties.1137\\n2. Applicable law .1137\\n3. Application of the law.1139\\nIII. CONCLUSION.1140\\nAlthough, as Circuit Judge McMillian once observed, \\\"[s]ummary judgment is not designed to weed out dubious claims, but to eliminate those claims with no basis in material fact,\\\" in the process of litigating the defendants' all-encompassing summary judgment motion in this employment discrimination case, the parties have themselves weeded out certain claims and issues. Although the court is still left with a daunting list of issues on which it must decide whether a jury question is presented, the parties' reevaluation of their claims and contentions is laudatory, as it is likely to focus attention on matters genuinely in dispute and to save the court and parties time and energy.\\nSomewhat more specifically, the plaintiff has expressly withdrawn her sex discrimination claims, instead narrowing the focus of this litigation to her national origin and disability discrimination claims. Similarly, the defendants have expressly withdrawn their motion for summary judgment with respect to the plaintiffs claim of a hostile work environment based on national origin. However, the defendants also argue that the plaintiff has implicitly narrowed her national origin claims by failing to respond to the defendants' contentions that she cannot generate a genuine issue of material fact on her claims of disparate treatment and constructive discharge based on national origin. The court must not only decide what is still at issue in the case and on the defendants' motion for summary judgment, but decide whether a jury question is presented on challenged issues.\\nI. INTRODUCTION\\nA. Factual Background\\nWhether or not a party is entitled to summary judgment ordinarily turns on whether or not there are genuine issues for trial, Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990), and the court must view all the facts in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538; Quick, 90 F.3d at 1377 (same). Nevertheless, the court will not attempt here a comprehensive review of the undisputed and disputed facts in the record, although some factual -background is necessary to put in context the parties' arguments for and against summary judgment on the claims that remain at issue. Therefore, what is presented here is only a sketch of the essential factual background and factual disputes on the present record.\\nPlaintiff Araceli Martinez, who describes herself as Hispanic and of Mexican origin, began working for defendant Cole Sewell on August 18, 1999, as an assembler, parts processor, and core line operator on the \\\"second shift\\\" from 3:45 p.m. to 12:15 a.m. at Cole Sewell's plant in Clear Lake, Iowa, where the company manufactures doors. Unfortunately, shortly after she began working for Cole Sewell, she was injured on the job. She contends that, thereafter, she was repeatedly harassed by co-workers and supervisors because of her disability and national origin, that Cole Sewell failed to accommodate her disabilities, and that Cole Sewell retaliated against her for complaining about harassment and discrimination. Her last day of work at Cole Sewell was June 17, 2000, although her employment apparently did not officially terminate until sometime in August 2000.\\nThe first of Martinez's two on-the-job injuries occurred on August 26, 1999, when she hyper-extended her right thumb when she attempted to catch an 8.5 pound piece of falling glass. Although initial treatment apparently consisted only of first aid, Martinez went to the doctor in September, and again in November, for treatment of thumb pain. On November 3, 1999, Dr. DeBartolo instructed her to use a thumb splint while working and to avoid forceful pinching. On November 30, 1999, Dr. De-Bartolo released Martinez to work \\\"light duty\\\" with no use of her right hand. Unfortunately, on December 7, 1999, Ms. Martinez suffered a second injury at work, this time a strain to her left shoulder. However, she did not receive immediate medical treatment for that injury, either, but was eventually treated on January 7, 2000, at which time she was referred for two sessions of physical therapy and placed on a restriction of five pounds of force and no overhead activity with her left arm. Her previous restrictions on use of her right hand remained in place. Indeed, Ms. Martinez was placed on a \\\"no work\\\" restriction from December 14, until December 16, 1999, because of her prior thumb injury, and on December 16, 1999, Dr. DeBartolo extended that status through January 6, 2000. Martinez apparently remained on light duty work restrictions,' with occasional periods on \\\"no work\\\" restrictions, for the remainder of her employment with Cole Sewell. Despite her continuing physical limitations, Martinez contends that her supervisors repeatedly assigned her work that was beyond her doctor-imposed restrictions and \\\"coerced\\\" doctors to change her restrictions beyond her actual capabilities. Cole Sewell admits that some of its supervisors believed that Martinez was exaggerating her discomfort while doing various jobs, because they believed that she was only assigned jobs within her restrictions.\\nDuring the course of her employment, Martinez contends that she was also subjected to harassment in the form of foul language, such as \\\"fuck you,\\\" and \\\"shit,\\\" and taunting, including comments that she was \\\"lazy\\\" and epithets like \\\"spider,\\\" \\\"mummy,\\\" \\\"shitty Mexican\\\" or \\\"Mexican shit,\\\" and \\\"wetback,\\\" and teased about an overbite. Although Martinez acknowledges that some of the foul language was used among co-workers to \\\"get a laugh,\\\" and not to offend each other, she contends that she was offended by it and was offended by the name-calling and teasing directed specifically at her. Martinez also complains that supervisors ridiculed and laughed at her about the way that she spoke English. Cole Sewell disputes the extent to which Martinez made her supervisors or managers aware of offensive language or alleged harassment or the extent to which those persons notified ignored her complaints when Cole Sewell acknowledges that Martinez did make complaints.\\nIt is undisputed that Martinez filed an administrative charge dated February 15, 2000, with the Iowa Civil Rights Commission in which she alleged discrimination on the basis of national origin and sex. She later amended that administrative charge to allege disability discrimination as well. Cole Sewell also admits that Martinez made a formal in-house complaint of harassment on March 3, 2000, although Cole Sewell contends that Martinez declined to provide specifics about the harassment or to identify the harassers. Martinez contends that she did, in fact, identify the harassers, including supervisors present at the meeting, during what she describes as an \\\"interrogation\\\" on March 3, 2000. Cole Sewell initiated an investigation based on Martinez's March 3, 2000, complaint, but eventually notified Martinez that its investigation had not revealed any evidence of harassment. Martinez contends that Cole Sewell representatives also informed other line workers that the company had found no conduct constituting \\\"harassment,\\\" which Martinez contends amounted to the company \\\"condoning\\\" the harassment. In its notice concerning the results of its investigation, Cole Sewell asked Martinez to provide any additional information that she had about the incident on which her complaint was based, and to notify Cole Sewell representatives if she had any more information or complaints about harassment. On April 28,. 2000, Martinez filed a second complaint with the Iowa Civil Rights Commission in which she alleged that she had been retaliated' against by Mr. Nickel, her direct supervisor, Ms. Thomas, the Director of Human Resources for Cole Sewell, and Mr. Fausnaugh.\\nOn February 28, 2000, Martinez received a written warning for absenteeism based on what Cole Sewell viewed as excessive absenteeism and tardiness from work. Before Martinez left work again on March 2, 2000, she was warned that the absence would be treated as \\\"unplanned.\\\" Martinez, however, contends that she left work on that day, because her supervisors had assigned her work beyond her medical restrictions. Martinez received a second warning about absenteeism on March 3, 2000. Cole Sewell contends that these notices and subsequent action by Cole Se-well were pursuant to Cole Sewell's Absenteeism/Tardiness Policy. On May 2, 2000, Martinez sent in a note from one of her doctors, who was in fact a psychiatrist, stating that she would not be working for \\\"medical reasons\\\" until May 9, 2000. Although Cole Sewell asserts that Mr. Wor-rall, a human resources specialist for the company, attempted to follow up with a request to Martinez's counsel for more information about her medical condition, Cole Sewell contends that it was not informed of the reason for the absence. Martinez, however, contends that the absences were pursuant to a note from her psychiatrist, who was treating her for emotional distress arising, at least in part, from harassment at work. On May 16, 2000, Martinez received a Notice of Suspension for three days for excessive absenteeism based on the two prior written warnings and eleven incidents of absences or tardies from May 2, 2000, to May 15, 2000. Martinez was also advised in the Notice that a further infraction would likely lead to her termination. Martinez's last day at work at Cole Sewell was June 17, 2000, when a chiropractor provided a note that Martinez would be off work for the foreseeable future owing to her thumb injury. Martinez was not formally terminated until some time later.\\nB. Procedural Background\\nAfter receiving right-to-sue letters from administrative agencies, Araceli Martinez filed her Complaint in this matter on June 8, 2001, and an Amended Complaint on June 21, 2001, naming as defendants Tim Nickel, her immediate supervisor, Lori Thomas, the Director of Human Resources for Cole Sewell, and Brad Worrall, a human resources specialist for Cole Sewell. The first three of the five counts of Martinez's Complaint are against Cole Sewell only. In Count I, Martinez alleges that she was subjected to a hostile work environment and disparate treatment because of her sex and national origin in violation of Title VII, 42 U.S.C. \\u00a7 2000e, resulting in her actual or constructive discharge. In Count II, Martinez alleges that she was subjected to adverse employment action in retaliation for her opposition to discrimination in the workplace in violation of Title VII. In Count III, Martinez alleges that she is disabled within the meaning of the Americans with Disabilities Act (ADA), that she was subjected to a hostile work environment because of her disability, that Cole Sewell failed to accommodate her disability, and that Cole Sewell \\\"actually constructively\\\" discharged her. Counts TV and V of Martinez's Complaint are directed at all of the defendants, corporate and individual. In Count IV, Martinez alleges that she was subjected to a hostile environment because of her disability, sex, and national origin in violation of Iowa Code CH. 216, which is the Iowa Civil Rights Act (ICRA), and that the three individual defendants are personally liable for that illegal conduct, as well as Cole Sewell. In Count V, a common-law claim, Martinez alleges that the conduct previously alleged in- the Amended Complaint constitutes intentional infliction of severe emotional distress for which the defendants can be held liable.\\nCole Sewell and the individual defendants initially filed, then withdrew, a motion to dismiss. Martinez's Amended Complaint. On August 31, 2000, the defendants filed a joint Answer to the Amended Complaint denying Martinez's claims. The case then proceeded without significant incident until the defendants filed the motion for summary judgment presently before the court.\\nIn that motion, filed on October 2, 2002, and amended on October 4, 2002, the defendants contend that they are entitled to summary judgment on Martinez's Title VII and ICRA claims of retaliation, hostile environment harassment, disparate treatment, and constructive discharge based on sex and national origin; Martinez's disability discrimination claims, pursuant to the ADA and the ICRA, although the defendants originally only challenged the disability claims involving failure to accommodate and constructive discharge; and Martinez's common-law claim of intentional infliction of emotional distress, on the ground that the claim is preempted by Martinez's statutory discrimination and retaliation claims. In the defendants' view, therefore, at the time of filing, the motion for summary judgment would have entirely resolved this litigation if granted.\\nIn her resistance, filed November 1, 2002, Martinez requests that the defendants' motion for summary judgment be denied in its entirety. However, in her \\\"Brief in Resistance to Defendant's [sic] Motion for Summary Judgment\\\" (\\\"Plaintiffs Brief'), Martinez expressly withdraws her \\\"claim of sexual discrimination,\\\" apparently including claims of hostile environment harassment, disparate treatment, and constructive discharge based on sex. Although the defendants construe Martinez's withdrawal of her \\\"sexual discrimination\\\" claims to include withdrawal of her claim of retaliation based on complaints of sexual harassment, the court will leave for consideration below the precise scope of Martinez's express withdrawal. Martinez expressly resists the defendants' motion for summary judgment as to her Title VII retaliation claim; her claim of a hostile environment based on national origin in violation of state and federal law; her disability discrimination claims in violation of state and federal law, including a claim of hostile work environment based on disability, which is not mentioned in the defendants' motion for summary judgment; and her claim of intentional infliction of emotional distress.\\nIn their reply, filed November 14, 2002, the defendants, in turn, expressly withdraw that portion of their summary judgment motion challenging Martinez's claim of a hostile work environment based on national origin. However, the defendants also contend in their reply that Martinez has apparently withdrawn her claims for disparate treatment and constructive discharge based on national origin by failing to address those sections of the defendants' brief challenging those claims. The court will also leave for consideration below whether Martinez implicitly withdrew any claims. In reply to Martinez's resistance, the defendants reassert their contention that they are entitled to summary judgment on Martinez's retaliation claim, her disability discrimination claim \\u2014 including claims for failure to accommodate, hostile environment discrimination, and constructive discharge based on disability\\u2014 and her claim of intentional infliction of emotional distress.\\nThe court heard oral arguments on the defendants' motion for summary judgment on November 27, 2002. At the oral arguments, plaintiff Araceli Martinez was represented by Mark D. Sherinian of Mark D. Sherinian, P.C., in West Des Moines, Iowa, who argued the motion, and James T. Fitz-simmons of Fitzsimmons & Vervaecke Law Firm, P.L.C., in Mason City, Iowa. Defendants Cole Sewell, Tim Nickel, Lori Thomas, and Brad Worrall were represented by Deborah M. Tharnish of Davis, Brown, Koehn, Shors & Roberts, P.C., in Des Moines, Iowa. The court was impressed with the quality and thoroughness of the parties' written and oral arguments and, as mentioned above, with the parties' conscientious reevaluation of their claims and contentions, which narrowed the scope of both the litigation and the summary judgment motion.\\nAt the oral arguments, plaintiffs counsel requested leave to supplement the record with the transcripts of the depositions of one or more witnesses just lately deposed, and the court agreed, provided that the plaintiff e-mailed the transcript or transcripts to the court and the defendant by December 4, 2002, and the defendant was given an opportunity to respond to the supplementary material. The court received a transcript of one deposition by email on December 4, 2002, along with the plaintiffs indications of the most pertinent aspects of the witness's testimony, and the court received the defendant's response, also by e-mail, on December 5, 2002. The court has considered both the supplementary material and the defendant's response to it. Therefore, the defendant's motion for summary judgment is now fully submitted for the court's consideration.\\nII. LEGAL ANALYSIS\\nA. Standards For Summary Judgment\\nThis court has considered in some detail the standards applicable to motions for summary judgnent pursuant to Rule 56 of the Federal Rules of Civil Procedure in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilloill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Miluaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). The essentials of these standards for present purposes are as follows.\\n1. Requirements of Rule 56\\nRule 56 itself provides, in pertinent part, as follows:\\nRule 56. Summary Judgment\\n:\\u00a1\\u00ed \\u2021\\n(b) For Defending Party. A party against whom a claim . is asserted . may, at any time, move for summary judgment in the party's favor as to all or any part thereof.\\n(c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.\\nFed. R. Civ. P. 56(a)-(c) (emphasis added). Applying these standards, the trial judge's function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). As to whether a factual dispute is \\\"material,\\\" the Supreme Court has explained, \\\"Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.\\\" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rouse v. Benson, 193 F.3d 936, 939 (8th Cir.1999); Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir.1995); Hartnagel, 953 F.2d at 394.\\n2. The parties' burdens\\nProeedurally, the moving party bears \\\"the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show lack of a genuine issue.\\\" Hartnagel, 953 F.2d at 395 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Rose-Maston, 133 F.3d at 1107; Reed v. Woodruff County, Ark., 7 F.3d 808, 810 (8th Cir.1993). \\\"When a moving party has carried its burden under Rule 56(c), its opponent must do more than simply show there is some metaphysical doubt as to the material facts.\\\" Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Rather, the party opposing summary judgment is required under Rule 56(e) to go beyond the pleadings, and by affidavits, or by the \\\"depositions, answers to interrogatories, and admissions on file,\\\" designate \\\"specific facts showing that there is a genuine issue for trial.\\\" \\u2022 FED. R. CIV. P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Rabushka ex. rel. United States v. Crane Co., 122 F.3d 559, 562 (8th Cir.1997), cert. denied, 523 U.S. 1040, 118 S.Ct. 1336, 140 L.Ed.2d 498 (1998); McLaughlin v. Essette Pendaflex Corp., 50 F.3d 507, 511 (8th Cir.1995); Beyerbach, 49 F.3d at 1325. If a party-fails to make a sufficient showing of an essential element of a claim with respect to which that party has the burden of proof, then the opposing party is \\\"entitled to judgment as a matter of law.\\\" Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548; In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 113 F.3d 1484, 1492 (8th Cir.1997). In reviewing the record, the court must view all the facts in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts. See Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348; Quick, 90 F.3d at 1377 (same).\\n3. Summary judgment in employment discrimination cases\\nBecause this is an employment discrimination case, it is well to remember that the Eighth Circuit Court of Appeals has cautioned that \\\"summary judgment should seldom be used in employment-discrimination cases.\\\" Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994) (citing Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir.1991); Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir.1987), cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989)); see also Snow v. Ridgeview Medical Ctr., 128 F.3d 1201, 1205 (8th Cir.1997) (citing Crawford), Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 615 (8th Cir.1997) (quoting Crawford), Chock v. Northwest Airlines, Inc., 113 F.3d 861, 862 (8th Cir.1997) (\\\"We must also keep in mind, as our court has previously cautioned, that summary judgment should be used sparingly in employment discrimination cases,\\\" citing Crawford); Smith v. St. Louis Univ., 109 F.3d 1261, 1264 (8th Cir. 1997) (quoting Crawford); Hardin v. Hussmann Corp., 45 F.3d 262 (8th Cir.1995) (\\\"summary judgments should only be used sparingly in employment discrimination cases,\\\" citing Haglof v. Northwest Rehabilitation, Inc., 910 F.2d 492, 495 (8th Cir.1990); Hillebrand, 827 F.2d at 364). Summary judgment is appropriate in employment discrimination cases only in \\\"those rare instances where there is no dispute of fact and where there exists only one conclusion.\\\" Johnson, 931 F.2d at 1244; see also Webb v. St. Louis Post-Dispatch, 51 F.3d 147, 148 (8th Cir.1995) (quoting Johnson, 931 F.2d at 1244); Crawford, 37 F.3d at 1341 (quoting Johnson, 931 F.2d at 1244). To put it another way, \\\"[bjecause discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant.\\\" Crawford, 37 F.3d at 1341 (holding that there was a genuine issue of material fact precluding summary judgment); accord Snow, 128 F.3d at 1205 (\\\"Because discrimination cases often turn on inferences rather than on direct evidence, we are particularly deferential to the nonmovant,\\\" citing Crawford); Webb v. Garelick Mfg. Co., 94 F.3d 484, 486 (8th Cir.1996) (citing Crawford, 37 F.3d at 1341); Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir.1995) (quoting Crawford, 37 F.3d at 1341); Johnson, 931 F.2d at 1244.\\nHowever, the Eighth Circuit Court of Appeals also observed that, \\\"[ajlthough summary judgnent should be used sparingly in the context of employment discrimination cases, Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994), the plaintiffs evidence must go beyond the establishment of a prima facie case to support a reasonable inference regarding the alleged illicit reason for the defendant's action.\\\" Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir.1995) (citing Reich v. Hoy Shoe Co., 32 F.3d 361, 365 (8th Cir.1994)); accord Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134 (8th Cir.) (observing that the burden-shifting framework of McDonnell Douglas must be used to determine whether summary judgment is appropriate), cert. denied, 528 U.S. 818, 120 S.Ct. 59, 145 L.Ed.2d 51 (1999). In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), the Supreme Court reiterated that \\\" '[t]he ultimate-burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'\\\" Reeves, 530 U.S. at 142, 120 S.Ct. 2097 (quoting Texas Dept. of Community Affairs v. Bufdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). Thus, what the plaintiffs evidence must show, to avoid summary judgment or judgment as a matter of law, is \\\" '1, that the stated reasons were not the real reasons for [the plaintiffs] discharge; and 2, that age [or race, or sex, or other prohibited] discrimination was the real reason for [the plaintiffs] discharge.' \\\" Id. at 153, 120 S.Ct. 2097 (quoting the district court's jury instructions as properly stating the law). The Supreme Court clarified in Reeves that, to meet this burden, \\\"a plaintiffs prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.\\\" Id. at 148, 120 S.Ct. 2097 (emphasis added).\\nThe court will apply these standards to the defendants' motion for summary judgment in this case.\\nB. Scope Of Martinez's Withdrawal Of Claims\\nThe first question that the court must answer is precisely what claims Martinez has withdrawn, as the answer to that question will determine not only what claims are still at issue in this litigation generally, but what portions of the defendants' motion for summary judgment must be resolved. The question arises here both as to the scope of Martinez's express withdrawal of her \\\"claim of sexual discrimination,\\\" and as to whether or not Martinez implicitly withdrew her claims of disparate treatment and constructive discharge based on national origin, as the defendants contend.\\n1. Scope of the express withdrawal\\nIn her resistance to the defendants' summary judgment motion, Martinez expressly withdrew certain claims, as follows:\\nMs. Martinez has authorized her attorneys to withdraw her claim of sexual discrimination in this case. Nonetheless, the Plaintiff believes that the conduct exhibited by Mr. Worrall in regard to bathroom breaks and other employees in regard to profanity should still be considered as part of the hostile work environment based upon Ms. Martinez's national origin.\\nPlaintiffs Brief at 4. The court concludes, readily enough, that Martinez's express withdrawal of her \\\"umbrella\\\" claim of \\\"sexual discrimination\\\" includes her \\\"constituent\\\" claims of hostile environment harassment, disparate treatment, and constructive discharge based on sex. More specifically, it follows from a reading of Count I of Martinez's Amended Complaint that withdrawal of the \\\"claim of sexual discrimination\\\" was not intended to mean withdrawal only of a \\\"disparate treatment\\\" claim, for example, because Count I of the Amended Complaint pleads in a single count \\\"a hostile work environment,\\\" \\\"disparate treatment,\\\" and \\\"actua[l] or con-structivo] discharg[e] . because of [Martinez's] sex .all in violation of Title VII. See Amended Complaint, Count I, \\u00b6 14-16. Moreover, as the Supreme Court explained some time ago in the seminal case recognizing sexually hostile environment harassment as actionable under Title VII, such a claim is a form of \\\"sexual discrimination.\\\" See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (\\\"Since the Guidelines were issued [in 1980 by the EEOC], courts have uniformly held, and we agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.\\\"). Finally, this court has found nothing in the remainder of Martinez's brief that could be construed as argument that any of the \\\"constituent\\\" claims of \\\"hostile environment harassment,\\\" \\\"disparate treatment,\\\" and \\\"constructive discharge\\\" was intended to remain viable notwithstanding withdrawal of the \\\"umbrella\\\" claim of \\\"sexual discrimination.\\\"\\nHowever, the defendants have construed Martinez's withdrawal of her \\\"claim of sexual discrimination\\\" as also including withdrawal of her claim of retaliation based on complaints of sexual harassment. This reading does not necessarily follow, either from Martinez's Amended Complaint or Title VIPs statutory language. First, Martinez asserted retaliation in violation of Title VII in a separate count, Count II, from her claim of discrimination in violation of Title VII in Count I. Compare Amended Complaint, Count I (alleging \\\"discrimination\\\" specifically in the form of \\\"hostile work environment,\\\" \\\"disparate treatment,\\\" and \\\"constructive discharge,\\\" based on sex or national origin), with Count II (alleging \\\"retaliation\\\" for \\\"opposition to discrimination\\\"). Moreover, \\\"retaliation\\\" is prohibited by a separate section of Title VII from the section defining other unlawful employment practices, 42 U.S.C. \\u00a7 2000e-3(a) rather than 42 U.S.C. \\u00a7 2000e-2(a). Thus, the court must consider further whether Martinez intended to withdraw her claim of retaliation for opposing sexual discrimination.\\nIt appears that Martinez reserved factual allegations originally intended to support her \\\"sexual discrimination\\\" claims only to support her claim of a hostile work environment based upon her national origin. See Plaintiffs Brief at 4 (as quoted above). However, the court can find no clear suggestion in the portion of Martinez's brief resisting summary judgment on her retaliation claim that Martinez was only relying on alleged incidents of retaliation for opposing national origin discrimination as generating the necessary genuine issues of material fact to allow the claim to go to the jury. See id. at 10-13. Rather, Martinez identifies her complaints about \\\"discrimination,\\\" both her formal one to the Iowa Civil Rights Commission on February 15, 2000, and informal ones to company representatives in November 1999, January 2000, and March 2000, as the \\\"protected activity\\\" prompting retaliation. See id. Also, the discrimination referred to in the formal administrative charge is both \\\"national origin\\\" and \\\"sex,\\\" although the narrative explanation of the nature of the discrimination appears to point to discrimination based on physical impairment and national origin, rather than sex. See Amended Complaint, Exhibit A; see also Defendant's Appendix at 1-3. Finally, when the court asked Martinez's counsel directly at the oral arguments whether Martinez intended her withdrawal of her \\\"claim of sexual discrimination\\\" to include her claim of retaliation for complaining about sexual harassment, Martinez's counsel stated that the retaliation claim was based on retaliation for filing the charge of discrimination with the Iowa Civil Rights Commission, not for complaining about specific kinds of discrimination.\\nThe court concludes that, in an abundance of caution, it should consider whether Martinez's retaliation claim should go to the jury on the basis that the protected activity allegedly involved complaints about \\\"discrimination,\\\" including sexual discrimination as well as national origin and disability discrimination.\\n2. Was there an implicit withdrawal of some claims?\\nThe defendants also contend that Martinez implicitly withdrew her claims of disparate treatment and constructive discharge based on national origin by failing to address those sections of the defendants' brief in support of their summary judgment motion challenging those claims. When asked at oral arguments whether Martinez intended to withdraw disparate treatment and constructive discharge claims based on national origin, Martinez's counsel asserted that Martinez had addressed those claims \\\"from-a factual standpoint\\\" in her resistance, even, if she had not expressly briefed them under appropriate headings. The court then confirmed that this meant that Martinez did not intend to withdraw those claims. Nevertheless, the court finds that the defendants' contention that these claims were implicitly withdrawn can be addressed by application of the standards for summary judgment outlined above.\\nIn Sections IV and V of their brief, the defendants met their \\\"initial responsibility\\\" under Rule 56 \\\"of informing the district court of the basis for [their] motion and identifying those portions of the record which show lack of a genuine issue\\\" as to Martinez's national origin claims of disparate treatment and constructive discharge, respectively. See Hartnagel, 953 F.2d at 395 (citing Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548); see also Rose-Maston, 133 F.3d at 1107; Reed, 7 F.3d at 810. Determination of whether Martinez then met her burden under Rule 56(e) \\u2014 that is, her burden to go beyond the pleadings, and by affidavits, or by the \\\"depositions, answers to interrogatories, and admissions on file,\\\" designate \\\"specific facts showing that there is a genuine issue for trial,\\\" see Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Rabushka, 122 F.3d at 562; McLaughlin, 50 F.3d at 511; Beyerbach, 49 F.3d at 1325 \\u2014 is complicated, in part, by the fact that Martinez does not address issues in her brief in the same order or under the same rubric in which they were raised by the defendants. However, the proper question, as her counsel's contentions at oral arguments suggests, is whether Martinez points to record evidence in support of her claims sufficient to generate a genuine issue of material fact on those claims, not how and where in her brief she does that.\\nEven so, the court finds that Martinez has not met her burden with regard to her claim of disparate treatment because of national origin. Indeed, nowhere in her brief does the court find that Martinez has asserted that there is record evidence that generates a genuine issue of material fact that she was treated differently than similarly situated non-Mexicans, although she has marshaled evidence that she asserts supports her claims of harassment based on national origin and retaliation for complaining about national origin harassment. See Plaintiffs Brief at 4-7 (discussing hostile environment harassment based on national origin)' & 10-13 (discussing retaliation). Moreover, even her counsel's oral argument in support of her claim of disparate treatment based on national origin did not distinguish that claim from her claim of a hostile environment based on national origin, because the only evidence of adverse employment action that she identified in support of the disparate treatment claim was evidence of instances of alleged harassment and ridicule. Certainly, Martinez has not identified any evidence to support. a \\\"classic\\\" disparate treatment claim, such as failure to hire, transfer, promote, or denial of specific benefits, job assignments, or conditions of employment available to similarly situated persons who were not Mexican. Because Martinez has not made the necessary designation of evidence of disparate treatment because of national origin, the defendants are \\\"entitled to judgment as a matter of law\\\" on that claim. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548; In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 113 F.3d at 1492.\\nOn the other hand, the court finds that Martinez has argued, and marshaled evidence in support of her argument, that there are genuine issues of material fact as to whether or not she was constructively discharged because of. her national origin. The record evidence to which she specifically points in support of her contention that she was constructively discharged includes citations to record evidence that harassment because of her national origin \\u2014 including, for example, incidents in which she was called \\\"lazy,\\\" which she elsewhere contends is a stereo-type for Mexiean-Amerieans \\u2014 made her workplace intolerable. See, e.g., Plaintiffs Brief at 20. Moreover, implicit in her arguments that she was subjected to a hostile work environment based on national origin is a contention that the hostile work environment was sufficiently intolerable to cause her constructive discharge.\\nThus, while the court agrees that Martinez has implicitly withdrawn her claim of disparate treatment based on national origin, or has failed to carry her burden in resistance to a motion for summary judgment on that claim, by failing to identify evidence in support of that claim, in an abundance of caution, the court concludes that Martinez has at least attempted to resist the defendants' motion for summary judgment on her claim that harassment because of her national origin ultimately caused her constructive discharge.\\nThe court turns, next, to the claims still at issue in this litigation upon which the defendants are still seeking summary judgment.\\nC. Title VII Claims\\nBecause Martinez has expressly withdrawn her \\\"sexual discrimination\\\" claims, the court has found that Martinez implicitly withdrew or failed to carry her burden at summary judgment on her claim of disparate treatment based on national origin, and the defendants have withdrawn their motion for summary judgment on Martinez's claim of a hostile work environment based on her national origin, only two issues related to Title VII claims are now presented for consideration on summary judgment: (1) whether there are genuine issues of material fact on Martinez's Title VII retaliation claim; and (2) whether there are genuine issues of material fact that harassment based on national origin in violation of Title VII caused Martinez's constructive discharge. The court will consider these issues in turn.\\n1. Retaliation\\na. Arguments of the parties\\nThe defendants contend that they are entitled to summary judgment on Mar tinez's Title VII retaliation claims, because Martinez has failed to generate a prima facie case of retaliation and, even if she has, she has failed to present evidence generating a genuine issue of material fact that the defendants' stated reasons for their actions are a pretext for retaliation. Somewhat more specifically, the defendants argue that Martinez has not established that she engaged in any protected activity, because they contend that it is undisputed that Martinez never brought any alleged discrimination to the attention of any supervisor at Cole Sewell. Instead, on the only occasion that she approached Ms. Thomas with a complaint, it was to report that co-workers were using profanity, but Martinez herself admits that profanity was used toward and among both men and women. Therefore, defendants argue, Martinez could not have had a reasonable belief that use of profanity was conduct that violated Title VII. Although the defendants concede, albeit only for the purposes of summary judgment, that Martinez's filing of an administrative complaint with the Iowa Civil Rights Commission constituted protected activity, they contend that Martinez nevertheless has not generated a genuine issue of material fact that she sustained any adverse employment action as a result of that filing. Rather, they contend that her allegations are that nothing changed after she filed her administrative charge and there is no evidence of additional, different, or more odious duties imposed upon her after the filing of the charge. They argue, further, that warnings for absenteeism did not cause a material disadvantage to Martinez, even supposing that they were related to her filing of a charge of discrimination, and that ostracism by co-workers or supervisors is insufficient, standing alone, to support her claim. Nor is there any causal connection, defendants contend, between any protected activity and any adverse action, because of the time lag between the filing of Martinez's administrative charge, or any other complaints about harassment, and the purportedly retaliatory warnings for absenteeism. Cole Sewell also contends that it cannot be held liable for any adverse conduct by co-workers in retaliation for Martinez's complaints about discrimination. Finally, the defendants contend that Martinez cannot show that any warnings or disciplinary actions for absenteeism were a pretext for retaliation, because those actions were appropriate in light of the company's absenteeism policy and Martinez's record of absences.\\nMartinez, however, argues that there is more than enough evidence to permit her retaliation claim to go to the jury. She contends that protected activity includes both formal and informal complaints about discrimination, and that she made both kinds of complaints. She also contends that there are numerous incidents of adverse employment action following on the heels of her protected activity, including delivery of her paycheck later than delivery of paychecks to other employees; misinforming her of the time to start working; delays in giving her work; and constant harassment from co-workers, for which Martinez contends a number of courts have recently held employers liable. Contrary to the defendants' contentions, she contends that adverse actions and harassment followed closely in time after her complaints and administrative charge of harassment and that the harassment by co-workers was condoned by supervisors, when they informed line employees that their conduct did not constitute \\\"harassment,\\\" or by failing to take action when harassing epithets or comments were made to Martinez within earshot of supervisors. As to pretext, not only does Martinez disagree with the defendants' contentions that all of their actions were justified by their absenteeism policy, but she argues that there is record evidence that other employees acknowledged that Martinez was unfairly criticized for being late or absent when other employees were not.\\nIn reply, the defendants contend that supposed incidents\\\" of co-worker harassment in retaliation for complaints about harassment were not reported to or observed by supervisors, and that the allegedly harassing comments have nothing inherently to do with national origin. They also contend that Martinez has still failed to demonstrate that there is evidence of a causal connection between any complaints about harassment and any alleged retaliatory acts, because Martinez has cited no record evidence that supervisors ever condoned any retaliatory harassment by coworkers. Finally, the defendants argue that the only evidence of any possible adverse employment action that Martinez experienced was discipline for absenteeism, but that the company's absenteeism policy and Martinez's record of absenteeism demonstrate that disciplinary action was not just a pretext for retaliation.\\nb. Applicable law\\nAs noted above, retaliation is prohibited under Title VII by 42 U.S.C. \\u00a7 2000e-3(a), which prohibits an employer from \\\"discri-minat[ing] against any of his employees . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.\\\" 42 U.S.C. \\u00a7 2000e-3(a); see also Clark County School Dist. v. Breeden, 532 U.S. 268, 269, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam). In this case, Martinez specifically pleaded \\\"opposition\\\" to harassment as the basis for her retaliation claim, although, in her resistance to the defendants' summary judgment motion, she also identified \\\"protected activity\\\" in which she engaged as including \\\"making a charge\\\" of discrimination.\\nOn-a motion for summary judgment, in the absence of direct evidence of retaliation, courts in this circuit \\\"apply the familiar McDonnell Douglas three-part burden shifting analysis\\\" to a retaliation claim. See Thorn v. Amalgamated Transit Union, 305 F.3d 826, 830 (8th Cir.2002) (citing Buettner v. Arch Coal Sales Co., 216 F.3d 707, 713-14 (8th Cir.2000), cert. denied, 531 U.S. 1077, 121 S.Ct. 773, 148 L.Ed.2d 672 (2001)). Thus,\\n[ajbsent direct evidence of discrimination, we ask first whether plaintiff presented a prima facie case of reprisal discrimination, next whether defendant rebutted the resulting presumption of discrimination by advancing a legitimate reason for its challenged behavior, and finally whether plaintiff refuted defendant's legitimate reason with sufficient evidence of pretext.\\nThorn, 305 F.3d at 830. The steps in this analysis warrant some further elucidation.\\nThe plaintiffs prima facie case \\\"requires a showing [1] that the employee engaged in some form of protected activity, [2] that the employee was subject to adverse employment action and [3] that the adverse action was causally connected to the protected activity.\\\" Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 844 (8th Cir.2002). As to the first element, although either \\\"opposition to\\\" or \\\"making a charge\\\" of discrimination constitutes \\\"protected activity\\\" under \\u00a7 2000e-3(a), the Supreme Court has explained that the \\\"protected activity\\\" element of a prima facie case (or claim) of retaliation also requires that \\\"a reasonable person could have believed [that the discriminatory conduct relied upon] violated Title VII's standard.\\\" Breeden, 532 U.S. at 271, 121 S.Ct. 1508. Thus, where the plaintiffs complaints about discrimination involved complaints about harassment, the court must consider what constitutes actionable harassment under Title VII, and whether a reasonable person could have believed that the conduct about which the plaintiff complained violated Title VII's standards. See id.\\nAs to the \\\"adverse employment action\\\" element, \\\" '[c]hanges in duties or working conditions that cause no materially significant disadvantage . are insufficient to establish the adverse conduct required to make a prima facie case.'\\\" Woodland, 302 F.3d at 845 (quoting Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.1997)). Moreover, \\\" '[n]ot everything that makes an employee unhappy is an actionable adverse action.' \\\" Id. (quoting Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359-360 (8th Cir.1997)). Indeed, because \\\"Title VII is not 'a general civility code for the American workplace,' . in employer retaliation cases, 'ostracism and rudeness by supervisors and coworkers do not rise to the level of an adverse employment action.' \\\" Thorn, 305 F.3d at 831 (quoting, first, Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), and, second, Gagnon v. Sprint Corp., 284 F.3d 839, 850 (8th Cir.2002)). On the other hand, harassment that is sufficiently \\\"severe or pervasive\\\" itself alters the conditions of the employee's employment sufficiently to constitute \\\"adverse employment action.\\\" See, e.g., Breeden, 532 U.S. at 270, 121 S.Ct. 1508; Meritor, 477 U.S. at 66, 106 S.Ct. 2399.\\nAs to the \\\"causal connection\\\" element of the plaintiffs prima facie case, \\\" '[generally, more than a temporal connection between the protected conduct and the adverse employment action is required to present a genuine factual issue on retaliation.' \\\" Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir.2002) (quoting Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.1999) (en banc)). However, \\\"[a] pattern of adverse actions that occur[s] just after protected activity can supply the extra quantum of evidence to satisfy the causation element.\\\" Id. In Smith, the Eighth Circuit Court of Appeals attempted to rationalize its cases holding that, \\\"even without a pattern, . the timing of one incident of adverse employment action following protected activity sufficed to establish causal connection,\\\" with cases suggesting that a mere coincidence of timing is not enough. See id. (citing cases). The court's analysis was as follows:\\nAlthough it is difficult to find a principle neatly explaining why each of our cases held temporal connection was or was not sufficient to satisfy the causation requirement, it appears that the length of time between protected activity and adverse action is important. The Supreme Court has said: \\\"The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close.\\\" Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam) (internal quotation marks omitted). For instance in Kipp [v. Missouri Highway & Transp. Comm'n], 280 F.3d [893,] 897 [ (8th Cir.2002) ], we said that \\\"the interval of two months between the complaint and Ms. Kipp's termination so dilutes any inference of causation that we are constrained to hold as a matter of law that the temporal connection could not justify a finding in Ms. Kipp's favor on the matter of causal link.\\\" By contrast, we said in Sprenger [v. Federal Home Loan Bank, 253 F.3d 1106 (8th Cir.2001),] that proximity of a \\\"matter of weeks\\\" between disclosure of a potentially disabling condition and adverse employment action was sufficient to complete a prima facie case of discrimination. 253 F.3d at 1113-14. In this case, Smith's family-leave began on January 1 and Allen discharged her on January 14. These two events are extremely close in time and we conclude that under our precedent this is sufficient, but barely so, to establish causation, completing Smith's prima facie case. This holding is consistent with the overarching philosophy of the McDonnell Douglas system of proof, which requires only a minimal showing before requiring the employer to explain its actions. See generally Sprenger, 253 F.3d at 1111.\\nSmith, 302 F.3d at 833 (emphasis added).\\nAs the Eighth Circuit Court of Appeals also explained in Smith, \\\"the McDonnell Douglas battle is only begun with the prima facie case.\\\" Smith, 302 F.3d at 833. In addition, \\\"[i]f the employer comes forward with evidence of a legitimate, nondiscriminatory reason for its treatment of the employee, the employee must then point to some evidence that the employer's proffered reason is pretextual.\\\" Id. To make the necessary showing, the plaintiff is \\\"obliged to present evidence that (1) creates a question of fact as to whether [the employer's] proffered reason was pretextual and (2) creates a reasonable inference that [the employer] acted in retaliation.\\\" Id.; see also Reeves, 530 U.S. at 153, 120 S.Ct. 2097 (what the plaintiffs evidence must show, to avoid summary judgment or judgment as a matter of law, is \\\" T, that the stated reasons were not the real reasons for [the plaintiffs] discharge; and 2, that age [or race, or sex, or other prohibited] discrimination was the real reason for [the plaintiffs] discharge.\\\") (quoting the district court's jury instructions as properly stating the law). To carry the burden of showing pretext at summary judgment, Martinez will be required to show, or at least generate a genuine issue of material fact, that the defendants' justification for their conduct is \\\"unworthy of credence.\\\" Id. at 833-34 (citing Reeves, 530 U.S. at 143, 120 S.Ct. 2097). While a prima facie case may be strong enough, standing alone, to make this showing, that is not always the case, and unlike the plaintiffs prima facie case, the evidence purportedly demonstrating pretext is \\\" 'viewed in light of the employer's justification.'\\\" Id. at 835 (quoting Sprenger, 253 F.3d at 1111). Moreover, \\\"[e]videnee that the employer had been concerned about a problem before the employee engaged in the protected activity undercuts the significance of the temporal proximity,\\\" and indeed, may explain a causal connection showing that any temporal proximity is not the result of retaliatory motive. Id. On the other hand, \\\"[a]n employee can prove pretext by showing the employer meted out more lenient treatment to similarly situated employees who were not in the protected class, or . did not engage in protected activity,\\\" although the plaintiff must \\\"prove that the compared employees were similarly situated in all relevant aspects.\\\" Id. at 835. Similarly, \\\" '[substantial changes over time in the employer's proffered reason for its employment decision support a finding of pretext,\\\"' id. (quoting Kobrin v. University of Minnesota, 34 F.3d 698, 703 (8th Cir.1994)), as may deviation from a policy upon which the employer relies as justifying its treatment of the employee. Id.\\nc. The record in light of applicable law\\ni. Martinez's prima facie case of retaliation. Determination of whether or not Martinez has generated the necessary genuine issues of material fact to allow her retaliation claim to go to the jury begins with consideration of her prima facie case. As to the first element of that prima facie case \\u2014 \\\"that the employee engaged in some form of protected activity,\\\" see Woodland, 302 F.3d at 844\\u2014 the court rejects the defendants' contention that Martinez has not generated any genuine issues of material fact that she engaged in \\\"protected activity.\\\" The defendants themselves concede that Martinez made complaints to company officials on March 3, 2000, although they apparently contend that Martinez did not provide sufficient information about the nature of the harassment or the identity of the harassers for that complaint to constitute protected activity. On the other hand, Martinez contends that she described foul language and repeated taunting by coworkers and supervisors in her complaint to Lori Thomas on March 3, 2000. Although the court agrees that no reasonable person could believe that just \\\"foul language\\\" constituted harassment under Title VII, and thus, such a complaint would not constitute \\\"protected activity,\\\" see Breeden, 532 U.S. at 271, 121 S.Ct. 1508, a report that Martinez was being \\\"taunted\\\" may be an entirely different matter.\\nAs the Supreme Court explained in Breeden, whether a reasonable person could believe that she was reporting harassment depends upon whether or not a reasonable person could believe that the conduct could satisfy Title VU's definition of actionable harassment. In Breeden, the Supreme Court explained Title VII's standards for sexual harassment as follows:\\nTitle VII forbids actions taken on the basis of sex that \\\"discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.\\\" 42 U.S.C. \\u00a7 2000e-2(a)(l). Just three Terms ago, we reiterated, what was plain from our previous decisions, that sexual harassment is actionable under Title VII only if it is \\\"so 'severe or pervasive' as to 'alter the conditions of [the victim's] employment and create an abusive working environment.' \\\" Faragher v. Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (some internal quotation marks omitted)). See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (Only harassing conduct that is \\\"severe or pervasive\\\" can produce a \\\"constructive alteratio[n] in the terms or conditions of employment\\\"); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (Title VII \\\"forbids only behavior so objectively offensive as to alter the 'conditions' of the victim's employment\\\"). Workplace conduct is not measured in isolation; instead, \\\"whether an environment is sufficiently hostile or abusive\\\" must be judged \\\"by 'looking at all the circumstances,' including the 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' \\\" Faragher v. Boca Raton, supra, at 787-788, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Hence, \\\"[a] recurring point in [our] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.' \\\" Faragher v. Boca Raton, supra, at 788, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (citation and internal quotation marks omitted).\\nBreeden, 532 U.S. at 270-71, 121 S.Ct. 1508. Our Circuit Court of Appeals has applied essentially identical \\\"severe or per vasive\\\" standards to determine whether an environment was sufficiently racially hostile. See, e.g., Dowd v. United Steelworkers of America, Local No. 286, 253 F.3d 1093, 1101 (8th Cir.2001); Robinson v. Valmont Indus., 238 F.3d 1045, 1047 (8th Cir.2001); Ross v. Douglas County, Nebraska, 234 F.3d 391, 396 (8th Cir.2000); Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir.1999). This court can find no reasoned basis for applying a different standard to a claim of a hostile environment based on national origin where the statutory basis for all of the harassment claims refers to discrimination on the basis of race, sex, and national origin without distinction. See 42 U.S.C. \\u00a7 2000e-2(a). Thus, if harassment or \\\"taunting\\\" is sufficiently \\\"severe or pervasive,\\\", reporting such harassment may constitute the necessary \\\"protected activity\\\" to satisfy the first element of Martinez's prima facie case of retaliation.\\nElsewhere in her resistance, Martinez identifies the \\\"taunting\\\" to which she was subjected as including comments that she was \\\"lazy\\\" and epithets like \\\"spider,\\\" \\\"mummy,\\\" \\\"shitty Mexican\\\" or \\\"Mexican shit,\\\" and \\\"wetback,\\\" and that such \\\"taunting\\\" was very frequent, almost every time she was on or near the production line. The frequency and patently derogatory content of some of these taunts \\u2014 specifically, \\\"shitty Mexican\\\" or \\\"Mexican shit\\\" and \\\"wetback,\\\" and perhaps to a lesser extent, \\\"lazy\\\" as a stereotype for Mexican-Americans \\u2014 to a person of Mexican origin cannot be ignored. See id. (including frequency and offensiveness as part of the calculus of whether conduct is sufficiently \\\"severe or pervasive\\\"). Thus, it appears that Martinez has generated at least a genuine issue of material fact that the informal complaint of March 3, 2000, constituted \\\"protected activity.\\\" In addition, the defendants concede, as they must, that 'Martinez's formal administrative charge of discrimination to the Iowa Civil Rights Commission was \\\"protected activity.\\\" See 42 U.S.C. \\u00a7 2000e-3(a) (prohibiting retaliatory discrimination for \\\"making a charge\\\" of discrimination). Therefore, Martinez has satisfied or generated genuine issues of material fact as to the \\\"protected activity\\\" element of her prima facie case of Title VII retaliation.\\nThe court also concludes that Martinez has generated genuine issues of material fact that she suffered \\\"adverse employment action,\\\" as required by the second element of her prima facie case. See Woodland, 302 F.3d at 844 (the second element is \\\"that the employee was subject to adverse employment action\\\"). This is so, despite the court's agreement with the defendants that mere \\\"ostracism or rudeness,\\\" by either co-workers or supervisors, standing alone, would not constitute the necessary adverse employment action, see Thom, 305 F.3d at 831, and that Martinez does not appear to have cited any evidence of any \\\"changes in duties or working conditions that eause[d] . materially significant disadvantage.\\\" See Woodland, 302 F.3d at 845. What Martinez has pointed to is, first, a legally cognizable level of \\\"severe or pervasive\\\" national origin harassment, including the frequent use of the epithets identified above, that itself sufficiently altered the conditions of her employment to constitute \\\"adverse employment action\\\" to satisfy this element of her retaliation claim. See, e.g., Breeden, 532 U.S. at 270, 121 S.Ct. 1508; Meritor, 477 U.S. at 66, 106 S.Ct. 2399. Furthermore, Martinez has not alleged that rudeness and ostracism standing alone constituted adverse employment action, but that such conduct was in conjunction with other harassment. Whether harassment is legally cognizable, it should be remembered, depends in part on the cumulative effect of the conduct, not on the offensiveness of each individual comment. See Breeden, 532 U.S. at 270, 121 S.Ct. 1508 (\\\"Workplace conduct is not measured in isolation; instead, \\\"whether an environment is sufficiently hostile or abusive' must be judged by \\\"looking at all the circumstances.\\\" ' \\\").\\nThe court next concludes that Martinez has generated genuine issues of material fact that there is sufficient \\\"causal connection\\\" between her protected activity and adverse employment action to suggest retaliation, as required by the third element of her prima facie case. See Woodland, 302 F.3d at 844. The evidence to which Martinez points suggests that there was \\\"[a] pattern of adverse actions that occur[ed] just after protected activity.\\\" See Smith, 302 F.3d at 832. Martinez's administrative charge was filed February 15, 2000, and her informal complaint to Ms. Thomas occurred on March 3, 2000. Martinez has both alleged and pointed to evidence suggesting that harassment toward her intensified after March 3, 2000. Moreover, there does not appear to be any record evidence of official warnings or disciplinary action for absenteeism or tardiness toward Martinez until February or March of 2000, starting approximately the same time that Martinez filed her administrative charge of discrimir nation, even though the defendants now contend that Martinez's absenteeism was a problem throughout her employment. Although \\\"[e]videnee that the employer had been concerned about a problem before the employee engaged in the protected activity undercuts the significance of the temporal proximity,\\\" and indeed, may explain a causal connection showing that any temporal proximity is not the result of retaliatory motive, see Smith, 302 F.3d at 835, here, the evidence reasonably suggests that, whatever \\\"concerns\\\" the employer may have had about absenteeism before February or March of 2000, it wasn't until after Martinez began complaining about harassment that the employer decided to act upon its concerns about Martinez's absenteeism, which does generate an inference of retaliatory intent. Id. All of this evidence, taken together, is sufficient, at least at the summary judgment stage of the proceedings, to find that Martinez's prima facie case survives the defendants' summary judgment motion.\\nii. The shifting of burdens. Turning from Martinez's prima facie case to the remaining parts of \\\"the McDonnell Douglas battle,\\\" see Smith, 302 F.3d at 830, the court has little trouble concluding that the defendants have identified a legitimate reason for giving Martinez warnings about absenteeism, although they have not necessarily explained away the timing of those warnings to dispel all inferences of retaliatory intent. The court also agrees with the defendants that the slim record evidence upon which Martinez relies as demonstrating that she was treated differently than other employees as to absenteeism, offered to support an inference of pretext, see, e.g., Smith, 302 F.3d at 835 (considering the way in which punishment is meted out and whether the employer follows its own policy as supporting an inference of pretext), supports that contention here barely or not at all. See Plaintiffs Appendix at 13 (deposition testimony of Jessica Dokum to the effect that on one occasion, she corrected a manager's mistaken belief that Martinez had not attended a meeting); id. at 131 (e-mails concerning whether Martinez could be docked pay for ten minutes she was tardy after returning from a doctor's appointment, indi- ' eating that, in that instance, she would not be so docked).\\nHowever, discipline for absenteeism is not the \\\"adverse employment action\\\" upon which Martinez solely \\u2014 or even substantially' \\u2014 -relies. The defendants have not attempted to offer any legitimate reason for allegedly retaliatory taunting of Martinez by co-workers with offensive epi thets related to her national origin, and the court doubts that there could be any legitimate reason for such conduct. What the defendants have attempted to do with this kind of evidence of adverse, retaliatory action is to explain that Cole Sewell and its supervisors were unaware of it and never condoned it, such that the company cannot be held liable for it as retaliatory action by the company. See, e.g., Richardson v. New York State Dep't of Correctional Serv., 180 F.3d at 426, 446 (2d Cir.1999) (holding that \\\"[a]n employer [can] be held accountable for allowing retaliatory coworker harassment to occur [if the employer] fails to act or stop it\\\"). Martinez, however, has presented evidence that at least some of the retaliatory harassment was either witnessed by, or meted out by, supervisors.\\nA claim of retaliation under Title VII that is subject to the McDonnell Douglas burden-shifting analysis depends just as completely on the inferences to be drawn from the evidence as a disparate treatment or hostile environment claim. See Thorn, 305 F.3d at 830 (\\\"applying] the familiar McDonnell Douglas three-part burden shifting analysis\\\" to a retaliation claim, citing Buettner, 216 F.3d at 713-14). Therefore, the court concludes that summary judgment on such a claim should be granted just as seldom and sparingly as it is on any other employment discrimination claim. See, e.g., Crawford, 37 F.3d at 1341. Moreover, the court concludes that this is not one of \\\"those rare instances where there is no dispute of fact and where there exists only one conclusion,\\\" such that summary judgment is appropriate on Martinez's Title VII retaliation claim. Johnson, 931 F.2d at 1244. Consequently, the court concludes that the defendants are not entitled to summary judgment on Martinez's claim of retaliation in violation of Title VII.\\n2. Constructive discharge\\na. Arguments of the parties\\nThe other Title VII \\\"claim\\\" still at issue on summary judgment is Martinez's contention that she was constructively discharged. Although the defendants have withdrawn their motion for summary judgment as to Martinez's claim of a hostile work environment based on national origin, they nevertheless contend that Martinez cannot generate a genuine issue of material fact that her working conditions were so intolerable as to cause her constructive discharge. They point out that, to establish a constructive discharge, a plaintiff must do more than simply show a violation of Title VTI. They also contend that there is no evidence of an intent to force Martinez to quit. The court concluded, above, that Martinez had resisted these contentions by pointing to evidence that she believes supports her constructive discharge claim by showing that her workplace was made \\\"intolerable,\\\" including evidence of harassment, such as incidents in which she was called \\\"lazy,\\\" which she elsewhere contends is a stereo-type for Mexican-Americans. See, e.g., Plaintiffs Brief at 20.\\nb. Applicable law\\nThis court recently summarized the requirements for proof of constructive discharge, as follows:\\nTo constitute a constructive discharge, a plaintiff must show more than just a Title VII violation by her employer. Phillips v. Taco Bell Corp., 156 F.3d 884, 890 (8th Cir.1998). A constructive discharge occurs when an employer deliberately renders the employee's working conditions intolerable and thus forces him to quit his job. Klein v. McGowan, 198 F.3d 705, 709 (8th Cir.1999) (citing Kimzey, 107 F.3d at 574); see also Johnson v. Runyon, 137 F.3d 1081, 1083 (8th Cir.) (internal quotations omitted), cert. denied, 525 U.S. 916, 119 S.Ct. 264, 142 L.Ed.2d 217 (1998) (\\\"A constructive discharge occurs when an employer renders the employee's working conditions intolerable, forcing the employee to quit.\\\"); Summit v. S-B Power Tool, 121 F.3d 416, 421 (8th Cir.1997) (internal quotations omitted), cert. denied, 523 U.S. 1004, 118 S.Ct. 1185, 140 L.Ed.2d 316 (1998) (citing same). The intent element is satisfied by a demonstration that quitting was \\\"a reasonably foreseeable consequence of the employer's discriminatory actions.\\\" Id. The employee has an obligation to act reasonably by not assuming the worst and not jumping to conclusions too quickly. See Howard v. Burns Bros., Inc., 149 F.3d 835, 841-42 (8th Cir.1998).\\n\\\" '[I]ntolerability of working conditions is judged by an objective standard, not the [employee's] subjective feelings.' \\\" Gartman v. Gencorp, Inc., 120 F.3d 127, 130 (8th Cir.1997) (quoting Allen v. Bridgestone/Firestone, Inc., 81 F.3d 793, 796 (8th Cir.1996)). First, the conditions created by the employer must be such that a reasonable person would find them intolerable. See Gartman, 120 F.3d at 130; Tidwell v. Meyer's Bakeries, Inc., 93 F.3d 490, 494 (8th Cir.1996); Parrish v. Immanuel Medical Ctr., 92 F.3d 727, 732 (8th Cir.1996); Allen, 81 F.3d at 796; Bradford v. Norfolk S. Corp., 54 F.3d 1412, 1420 (8th Cir.1995); Smith, 38 F.3d at 1460; Hukkanen v. International Union of Operating Eng'rs, Hoisting & Portable Local No. 101, 3 F.3d 281, 284 (8th Cir.1993). Second, the employer's actions \\\"must have been deliberate, that is, they 'must have been taken with the intention of forcing the employee to quit.' \\\" Delph, 130 F.3d at 354 (quoting Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981)); Gartman, 120 F.3d at 130; Tidwell, 93 F.3d at 494; Parrish, 92 F.3d at 732; Allen, 81 F.3d at 796; Smith, 38 F.3d at 1461; Hukkanen, 3 F.3d at 284. The Eighth Circuit Court of Appeals has explained that, \\\"in the absence of conscious intent ., the intention element may nevertheless be proved with a showing that the employee's 'resignation was a reasonably foreseeable consequence' of the [discriminatory or retaliatory conduct].\\\" Delph, 130 F.3d at 354 (quoting Hukkanen, 3 F.3d at 285); Gartman, 120 F.3d at 130 (also citing Hukkanen). Finally, \\\"to act reasonably, an employee has an obligation not to assume the worst and not to jump to conclusions too quickly\\\"; therefore, \\\"[a]n employee who quits without giving his employer a reasonable chance to work out a problem has not been constructively discharged.\\\" West v. Marion Merrell Dow, Inc., 54 F.3d 493, 498 (8th Cir.1995).\\nThe Eighth Circuit Court of Appeals has affirmed constructive discharge verdicts, emphasizing the employee's lack of recourse within the employer's organization. For example, in Delph v. Dr. Pepper Bottling Co., 130 F.3d 349, 356-57 (8th Cir.1997), the Eighth Circuit Court of Appeals upheld a constructive discharge verdict based on a hostile environment. The Delph court held that the hostile environment was bad enough to .constitute constructive discharge, because the harassment \\u2014 racial, slurs\\u2014 came from the plaintiffs supervisor and the offending language was not only used in the plaintiffs presence, but was directed at him. Id. at 356. In Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th Cir.1997), the Eighth Circuit Court of Appeals emphasized management's indifference to the employee's complaints of hostile environment in affirming the plaintiffs verdict on constructive discharge: \\\"If an employee quits because she reasonably believes there is no chance for fair treatment, there has been a constructive discharge.\\\" Id. at 574.\\nBaker v. John Morrell & Co., 220 F.Supp.2d 1000, 1021-23 (N.D.Iowa 2002).\\nc. The record in light of applicable law\\nFor many of the same reasons that the court found above that Martinez has generated genuine issues of material fact on her retaliation claim, the court concludes that she has also generated genuine issues of material fact on her contention that the hostile work environment to which she was subjected based on national origin was so intolerable as to force her to quit. Even judging \\\"intolerability\\\" by an objective standard, as required by applicable law, see id. at 1022, and even acknowledging that something more than a Title VII violation is required to prove a constructive discharge, id. at 1021-22, the court finds that Martinez has generated genuine issues of material fact that her working environment was made so \\\"intolerable\\\" by epithets aimed at her Mexican origin, the gross offensiveness of those particular epithets, and the frequency with which Martinez was subjected to them that a reasonable person would have found her working conditions to be intolerable. Similarly, for many of the reasons that the court found above that Martinez has generated genuine issues of material fact on retaliatory animus, it also finds genuine issues of material fact as to the \\\"intent\\\" element of constructive discharge. A reasonable jury could find that Martinez's resignation was a reasonably foreseeable consequence of the conduct to which she was subjected, giving rise to the necessary inference of intent to force her to quit, even in the absence of \\\"conscious intent.\\\" Id.\\nD. Disability Claims\\nThe court turns, next, to Martinez's claims of disability discrimination under the ADA and Iowa Civil Rights Act. As noted above, in Count III of her Amended Complaint, Martinez pleaded disability discrimination as involving a hostile work environment based on her disability, failure to accommodate her disability, and \\\"actually constructively\\\" discharging her because of her disability. She did not, however, assert a claim that she was retaliated against for opposing or filing a charge of disability discrimination. In the defendants' summary judgment motion, in addition to their contention that Martinez simply is not \\\"disabled\\\" within the meaning of the ADA, the defendants only specifically challenged Martinez's failure-to-accommodate and constructive discharge claims. However, in response to Martinez's contention, in her resistance to the summary judgment motion, that she has a viable claim of hostile environment harassment because of her disability, the defendants filed a reply also challenging the sufficiency of the record to present a jury question on such a claim. Thus, it is clear that the defendants seek summary judgment on all of Martinez's \\\"constituent\\\" claims of disability discrimination.\\n1. Arguments of the parties\\nIn their motion for summary judgment, the defendants contend that Martinez cannot marshal record evidence to support either a prima facie case of disability discrimination or pretext. Somewhat more\\nspecifically, they contend that Martinez simply cannot prove that she was \\\"disabled\\\" within the meaning of the ADA, because she has failed to generate a genuine issue of material fact that she has any physical or mental impairment that substantially limits any major life activity, has a record of such an impairment, or that the defendants perceived her as having such an impairment. Nor, they contend, can Martinez marshal evidence to show that she suffered any adverse employment action, or that there is a causal connection between any adverse employment action and any purported disability. Next, the defendants contend that Martinez cannot establish that Cole Sewell failed to provide reasonable accommodation for any disability, because Martinez has made no showing that she ever requested any specific accommodation or ever suggested any jobs that she thought that she could do. Thus, the defendants contend, the undisputed evidence reveals that Cole Sewell did attempt to reasonably accommodate Martinez by providing her with light duty work throughout her employment, once light duty work was prescribed by her doctors because of her thumb injury, and continued to try to determine what jobs she could do. As to constructive discharge, the defendant argue that, even supposing calling Martinez \\\"lazy,\\\" \\\"mummy,\\\" or \\\"spider\\\" somehow indicates harassment because of disability, nothing about such purported harassment rises to the level of creating an \\\"intolerable\\\" workplace. Nor, they contend, does sending Martinez home when no work could be found within her restrictions, or comments like, \\\"Oh, shit! She can't do that job,\\\" rise to the level of a cognizably hostile or intolerable workplace based on disability. The defendants also reiterate their contention that there is no evidence that any warnings or disciplinary actions taken because of Martinez's absenteeism were pretextual, this time in the sense of pretexts for disability discrimination.\\nNot surprisingly, Martinez takes a different view of the record supporting her disability discrimination claims. First, she contends that she was a qualified person with a disability, because she had impairments to her right hand, wrist, and shoulder, and/or depression that affected a major life activity. Although the defendants contend that Martinez did not identify any substantial limitation in any major life activity, based on her own deposition testimony, Martinez contends that her testimony, in context, referred to her condition at the time of the deposition, not at the time of discriminatory conduct. Instead, she contends that her medical records and doctors' testimony clearly establish that she was substantially limited in the major life activities of lifting, learning, concentrating, and working. As to working, Martinez argues that there is sufficient evidentiary support, because of the numerous periods of time that she was off work, because of her inability to engage in repetitive actions with her right hand, her later lifting limitation of five pounds for her left arm, and a doctor's ultimate determination that she had a 10% upper extremity impairment which was equivalent to a 6% whole person impairment. She also contends that she was diagnosed with depression in May of 2000, which substantially limited her ability to concentrate, and that she was ultimately diagnosed with schizophrenia. She also contends that her diary evidence, deposition testimony, and medical records show that Cole Sewell repeatedly refused to provide her with reasonable accommodations, because she was frequently given job assignments that were beyond her restrictions. She believes that failure to accommodate her disability is also apparent from admissions of Brad Worrall and Tim Fausnaugh that they believed that she was exaggerating her condition. Next, she as serts that she has presented more than enough evidence of a hostile work environment because of her disability, that various Circuit Courts of Appeals have recognized such a claim, and that the Eighth Circuit Court of Appeals has assumed that such a claim exists, at least in order to dispose of such a claim on the merits. She contends that she has presented \\\"a solid case\\\" of harassment because of her disability, because. employees repeatedly referred to her as \\\"lazy\\\" when she was given modified or light duty work assignments. She also argues that supervisors participated in this harassment by refusing to give her work at all or refusing to give her work within her doctors' restrictions, and repeatedly attempting to convince her doctors to change the restrictions they had imposed, for example, in the course of unannounced attendance at one of her doctors' appointments. She contends that this same evidence establishes both the \\\"intolerability\\\" and \\\"intent\\\" elements of a constructive discharge claim based on her* disability.\\nIn reply, the defendants contend that Martinez has utterly failed to establish that she is substantially limited in the major life activity of working, because of the absence of any evidence that she was disqualified by her impairments from a wide range of jobs, not just a particular job. Instead, they contend that her overall impairments were rated as only 10% of the upper extremity and 6% of the whole person. The defendants also contend that, although Martinez may now be suffering from depression and schizophrenia, which were purportedly caused by her employment, there is no evidence that she had or had a record of such mental impairments during the time that she was employed at Cole Sewell, or that if she did, Cole Sew\\u00e9ll knew about them, no evidence that Martinez ever raised her mental health condition as an issue during her employment, and no evidence that she ever sought accommodation of any mental impairment. The defendants also contend that Martinez has abandoned assertions that Cole Sewell regarded her as disabled, that she has presented sufficient evidence of any adverse employment action because of disability, or that she has established a causal connection between any adverse employment action and her disability by failing to respond to these issues in her brief. As to reasonable accommodation, although Martinez argues that her diary and medical records support her contention that Cole Sewell failed to provide reasonable accommodation, for example, by repeatedly assigning her tasks beyond her restrictions, the defendants argue that she has cited no portion of the record supporting such a contention. Cole'Sewell also argues that, contrary to Martinez's contentions, she was only assigned work that the company's representatives believed was within her restrictions and that they believed, further, that her complaints that the work was not within her restrictions were based on exaggeration by Martinez of her condition. They reiterate that Martinez has never identified any specific accommodation that would have addressed her physical or mental conditions. As to Martinez's hostile environment claim based on disability, the defendants contend that it is unnecessary for the court to decide whether or not the Eighth Circuit Court of Appeals would recognize such a claim, because the record provides no evidence' that any alleged harassment occurred because of her disability or that any action by the defendants was sufficient to cause Martinez's constructive discharge.\\n2. Analysis in light of applicable law\\nBecause of the myriad issues raised in the motion for and resistance to summary judgment on Martinez's disability claims, the court finds that analysis of each issue in turn is appropriate, rather than attempting, at the outset, to paint a picture of the broader legal landscape for such claims. Therefore, the court begins with the question of whether Martinez has generated a genuine issue of material fact that she is disabled within the meaning of the ADA. If not, then the court need proceed no further and the defendants are entitled to summary judgment on all of Martinez's \\\"constituent\\\" claims of disability discrimination.\\na. \\\"Disability\\\" within the meaning of the ADA\\ni. What type of disability is at issue? The parties recognize that \\\"disability\\\" within the meaning of the ADA is defined in three discrete ways as \\\"(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.\\\" 42 U.S.C. \\u00a7 12102(2). Thus, the first question is, which type or types of disability are at issue in this case? Martinez's Amended Complaint provides no illumination on this question, because she pleads only that she \\\"is disabled within the meaning of 42 U.S.C. \\u00a7 12102(2).\\\" Amended Complaint, Count III, \\u00b6 26. However, in her brief, she argues as follows:\\nThe doctors' records and testimony in this case clearly show that Ms. Martinez was substantially limited in the major life activities of lifting, learning, concentrating and working. Furthermore, as of at least March, 2000, Ms. Martinez had a history of being substantially limited in the major life activity of working because of the numerous periods of time she was off work.\\nPlaintiffs Brief at 16 (citations to Plaintiffs Appendix omitted). Thus, Martinez specifically argues that she is both \\\"actually disabled,\\\" and that she \\\"had a record of disability,\\\" the first and second statutory definitions under \\u00a7 12102(2)(A) and (B). However, the court agrees with the defendants that it does not appear that Martinez is asserting that she is disabled within the meaning of the third statutory definition, that she was \\\"regarded as\\\" or \\\"perceived to be\\\" disabled, as defined by \\u00a7 12102(2)(C).\\nii. Actual disability. As this court very recently explained,\\nThe Equal Employment Opportunity Commission (\\\"EEOC\\\") has issued regulations defining the three elements of disability contained in subsection (A). See 29 C.F.R. \\u00a7 1630.2 (2002). Those elements are: (1) a physical or mental impairment; (2) that affects a major life activity; (3) and whose effects substantially limit that activity. See id.; accord Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) (directing district courts to perform three step inquiry to assess whether a particular condition constitutes a disability for purposes of subsection (A) of 42 U.S.C. \\u00a7 12102(2)). \\\"Physical or mental impairment\\\" is defined as \\\"[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.\\\" Id. \\u00a7 1630.2(h)(1). \\\"Major Life Activities\\\" are defined as \\\"functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.\\\" Id. \\u00a7 1630.2(i). In addition, the Eighth Circuit has expanded upon the non-exhaustive list found in the regulations and has held that sitting, standing, lifting, and reaching may also qualify as major life activities. Cooper [v. Olin Corp.], 246 F.3d [1083,] 1088 [(8th Cir.2001)] (citing Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 948 (8th Cir.1999)); cf. Bragdon, 524 U.S. at 639, 118 S.Ct. 2196 (emphasizing that the regulations provide an illustrative, rather than exhaustive, list of major life activities). Further, in Toyota Motor Manufacturing v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), the Court explained that \\\" '[m]a-jor life activities' . refers to those activities that are of central importance to daily life.\\\" Id. at 691. The ADA's \\\"substantially limits\\\" requirement indicates that an impairment must interfere with a major life activity \\\" 'considerably]' or 'to a large degree.' \\\" Id.\\nBarnes v. Northwest Iowa Health Center, 238 F.Supp.2d 1053, -, 2002 WL 31558024, *9 (N.D.Iowa Nov.18, 2002) (footnote omitted).\\nThus, the first element of proof for an actual disability claim is that the employee must have a \\\"mental or physical impairment.\\\" Id. Martinez asserts that her impairments consisted of injuries to her right hand, wrist, and shoulder, and depression. It is undisputed that the defendants knew about Martinez's injuries to her right hand, wrist, and shoulder. However, Martinez has not come forward with any evidence generating a genuine issue of material fact that the defendants knew that she suffered from depression or had any other mental impairment. See Fed. R. Crv. P. 56(e) (in resisting summary judgment, the non-mov-ant bears the burden to go beyond the pleadings, and by affidavits, or by the \\\"depositions, answers to interrogatories, and admissions on file,\\\" designate \\\"specific facts showing that there is a genuine issue for trial\\\"); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Rabushka, 122 F.3d at 562; McLaughlin, 50 F.3d at 511; Beyerbach, 49 F.3d at 1325. Indeed, at oral arguments, she all but conceded that her employer did not necessarily know of her mental impairments, although representatives may have known of her frequent episodes of crying. The court concludes that knowledge of episodes of crying is certainly not the same as knowledge of any mental impairment. The Eighth Circuit Court of Appeals has held that an employer cannot be held hable on a perceived disability claim if the employer did not know about the plaintiffs impairment. See Webb v. Mercy Hosp., 102 F.3d 958, 960 (8th Cir.1996) (affirming summary judgment in favor of an employer on an employee's \\\"regarded as\\\" claim because the employer didn't know about the employee's mental impairment). Similarly, this court concludes that, even for an actual disability claim, the employer's knowledge of the impairment is an essential element, because, as a matter of common sense, in the absence of knowledge of an impairment, there can be no discriminatory animus, nor any triggering of an obligation to accommodate a disability. Thus, this court concludes that, for \\\"actual\\\" as well as \\\"perceived\\\" disability claims, \\\"whether a defendant knows that a physical [or mental] impairment is considered a disability is of no consequence,\\\" but the defendant must \\\"know that the impairment exists.\\\" Cf. United States v. City and County of Denver, 49 F.Supp.2d 1233, 1241 (D.Colo.1999); see also Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997) (\\\"The Americans with Disabilities Act of 1990, as amended in the Civil Rights Amendments Act of 1991, 42 U.S.C. \\u00a7 12101 et seq., prohibits covered employers from discriminating based upon the known physical or mental impairments of a qualified individual with a disability. 42 U.S.C. \\u00a7 12112. 'Indeed the ADA imposes upon employers the duty to provide reasonable accommodations for known disabilities unless doing so would result in undue hardship upon the employer.' Morisky v. Broward County, 80 F.3d 445, 447 (11th Cir.1996) (citation omitted).\\\") (emphasis added). Martinez also does not rely in her brief on her injuries to her left arm and shoulder as impairments upon which her disability claim is based, possibly because she acknowledges the merely \\\"temporary\\\" nature of any impairments to her left arm and shoulder. See, e.g., Barnes, 238 F.Supp.2d at -, 2002 WL 31558024 at 12 (citing cases standing for the proposition that, \\\"[a]s a matter of law, an impairment's impact must be permanent or long term to qualify as a substantially limiting impairment within the meaning of the. ADA,\\\" not merely temporary) (internal quotation marks and citations omitted). Thus, Martinez may proceed, if at all, only on the basis of her physical impairments to her right hand, wrist, and shoulder.\\nNext, Martinez must show \\u2014 or generate a genuine issue of material fact that \\u2014 the identified impairments \\\"substantially limited\\\" a \\\"major life activity.\\\" See Barnes, 238 F.Supp.2d at -, 2002 WL 31558024 at *9. The \\\"major life activities\\\" that Martinez has identified, at least those that relate to her physical impairments to her right'hand, wrist, and shoulder, are the major life activities of \\\"lifting\\\" and \\\"working.\\\" The defendants do not appear to dispute that both \\\"lifting\\\" and \\\"working\\\" are major life activities, and indeed, both are identified as \\\"major life activities\\\" in the EEOC's Guidelines or Eighth Circuit decisions. See id. (citing major life activities identified in both sources). What the defendants do challenge is that Martinez's physical impairments \\\"substantially limit\\\" these \\\"major life activities.\\\"\\nAs the Supreme Court recently explained,\\nIt is insufficient for individuals attempting to prove disability status under this test [of actual disability] to merely submit evidence of a medical diagnosis of an impairment. Instead, the ADA requires those \\\"claiming the Act's protection . to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience . is substantial.\\\"\\nToyota Motor Mfg., 534 U.S. at -, 122 S.Ct. at 691-92 (quoting Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 567, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999), with alterations provided by the Toyota Motor Mfg. Court). As this court pointed out in Barnes,\\nIn Toyota Motor, the Court emphasized the need to perform an individualized assessment of a person's physical impairment to determine whether that impairment substantially limits the major life activities of that particular person. See id. at 692. The Court reasoned that medical diagnoses alone are insufficient to qualify a person as disabled within the meaning of subsection (A) of the ADA because symptoms vary in degree and extent from person to person. Id. In Toyota Motor, thp respondent suf fered from carpal tunnel. Id. The Court noted the following:\\nAn individualized assessment of the effect of an impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person. Carpal tunnel syndrome, one of respondent's impairments, is just such a condition. While cases of severe carpal tunnel syndrome are characterized by muscle atrophy and extreme sensory deficits, mild cases generally do not have either of these effects and create only intermittent symptoms of numbness and tingling. Studies have further shown that, even without surgical treatment, one quarter of carpal tunnel cases resolve in one month, but that in 22 percent of cases, symptoms last for eight years or longer. When pregnancy is the cause of carpal tunnel syndrome, in contrast, the symptoms normally resolve within two weeks of delivery. Given these large potential differences in the severity and duration of the effects of carpal tunnel syndrome, an individual's carpal tunnel syndrome diagnosis, on its own, does not indicate whether the individual has a disability within the meaning of the ADA.\\nId.\\nBarnes, 238 F.Supp.2d at -, 2002 WL 31558024 at *10. These observations are of some interest here, because the diagnoses of the medical causes of Martinez's impairments to her right thumb include carpal tunnel syndrome, albeit a \\\"mild\\\" manifestation of the syndrome, as well as other causes.\\nAlthough her carpal tunnel syndrome may be \\\"mild,\\\" the court nevertheless concludes that Martinez has generated genuine issues of material fact that the limitations on at least one major life activity imposed upon Martinez by her impairments to her right hand, wrist, and shoulder \\\" 'in terms of [her] own experience . is substantial.' \\\" Toyota Motor Mfg., 534 U.S. at -, 122 S.Ct. at 692 (quoting Albertson's, Inc., 527 U.S. at 567, 119 S.Ct. 2162, with alterations provided by the Toyota Motor Mfg. Court). First, the defendants ignore rather than confront the copious evidence in the record that Martinez's impairments substantially limited her in the major life activity of \\\"lifting\\\" Indeed, the restrictions imposed by Martinez's doctors consistently required no use of her right hand, and her doctors concluded that even these restrictions had failed to improve her condition.\\nHaving concluded that Martinez has at least generated genuine issues of material fact that she was substantially limited in the major life activity of \\\"lifting,\\\" it might not be necessary for the court to consider, as well, whether she has generated genuine issues of material fact that she was substantially limited in the major life activity of \\\"working.\\\" This is so, because the EEOC, for example, has stated that the major life activity of \\\"working\\\" is to be considered as a last resort only \\\"[i]f an individual is not substantially limited with respect to any other major life activity.\\\" 29 C.F.R. pt 1630, App. \\u00a7 1630.2(j) (1998). However, the court deems it prudent, for purposes of summary judgment, to consider Martinez's contention that she is substantially limited in the major life activity of \\\"working,\\\" at least as an alternative to her contention that she is substantially limited in the major life activity of \\\"lifting.\\\"\\nAs to that alternative contention, as this court has explained,\\n\\\"A person is substantially limited in working if she is 'significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the av erage person having comparable training, skills, and abilities.' \\\" Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 949 (8th Cir.1999) (quoting Doane v. City of Omaha, 115 F.3d 624, 627 (8th Cir.1997)). The regulations direct district courts to consider factors, such as the number and type of jobs from which the impaired individual is disqualified; the geographical area to which the individual has reasonable access; and the individual's job training, experience, and expectations, in order to determine whether a person is substantially limited in the major life activity of working. 29 C.F.R. \\u00a7 1630.2(j)(3)(ii); accord Fjellestad, 188 F.3d at 949 (listing above factors); Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 617 (8th Cir.1997) (same).\\nBarnes, \\u2014 F.Supp.2d at -, 2002 WL 31558024 at *20. The court agrees with the defendants that Martinez has pointed only to evidence that establishes that she could not perform any of the jobs available at Cole Sewell's Clear Lake, Iowa, plant, but she has not met her burden under Rule 56(e) to designate specific facts that she is unable to perform \\\"either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities,\\\" such as evidence of the number and type of jobs from which she is disqualified; the geographical area to which she has reasonable access; and her job training, experience, and expectations. Id. (internal quotation marks and citations omitted). In the absence of any identification of evidence generating a genuine issue of material fact on these matters, the defendants are entitled to summary judgment on Martinez's contention that she was substantially limited in the major life activity of working. See Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 (if a party fails to make a sufficient showing of an essential element of a claim with respect to which that party has the burden of proof, then the opposing party is \\\"entitled to judgment as a matter of law\\\"); In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 113 F.3d at 1492.\\niii. Record of disability. As this court also explained in Barnes,\\nTo establish the existence of a record of a disability, an individual must show that she \\\"has a history of, or has been mis-elassified as having, a mental or physical impairment that substantially limits one or more major life activities.\\\" Costello v. Mitchell Pub. Sch. Dist. 79, 266 F.3d 916, 924 (8th Cir.2001) (citing 29 C.F.R. \\u00a7 1630.2(k)). \\\"In order to have a record of a disability, an employee's 'documentation must show' that she has a history of or has been subject to misclassification as disabled.\\\" Taylor v. Nimock's Oil Co., 214 F.3d 957, 961 (8th Cir.2000) (citing Strippit, 186 F.3d at 915).\\nBarnes, \\u2014 F.Supp.2d at \\u2014, 2002 WL 31558024 at *31. The defendants contend that a \\\"record of disability\\\" claim cannot be based simply on a record of being excused from work,' even on several occasions, because of a workplace injury. The court agrees that such evidence does not constitute evidence that Martinez was substantially limited in one or more major life activities \\u2014 not even the major life activity of \\\"working,\\\" which, as explained above, requires proof of preclusion from a class or broad range of jobs, not just one specific job. On the other hand, as explained above, the medical records and other evidence, taken as a whole, does generate a genuine issue of material fact that Martinez had a record of an impairment to her right thumb, wrist, and shoulder that substantially impaired her in the major life activity of \\\"lifting.\\\" Therefore, the defendants are not entitled to summary judgment on Martinez's \\\"record of disability\\\" claim at this first stage in the analysis.\\nNevertheless, Martinez cannot, as a matter of law, assert a failure-to-accommodate claim based on a record of disability. As this court explained in Barnes, \\\"a plaintiff can establish the first prong of her prima facie case of a failure-to-accommodate claim only by showing she was 'disabled' within the meaning of [\\u00a7 12102(2)(A) ],\\\" that is, on the basis of an \\\"actual disability.\\\" See Barnes, 238 F.Supp.2d at -, 2002 WL 31558024 at *30. More specifically, as this court explained in Barnes,\\nThe ADA does not impose upon an employer the duty to accommodate a qualified \\\"disabled\\\" employee when the employee is statutorily disabled within the meaning of 42 U.S.C. \\u00a7 12102(B) (record of impairment) or 42 U.S.C. \\u00a7 12102(C) (regarded as disabled). See Weber v. Strippit, Inc., 186 F.3d 907, 917 (8th Cir.1999) (holding that \\\" 'regarded as' disabled plaintiffs are not entitled to reasonable accommodations\\\"); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 n. 2 (3d Cir.1999) (commenting that extending a duty to accommodate to \\\"record of' claims is plagued by the same concerns as allowing a duty to accommodate claim to a \\\"regarded as\\\" plaintiff, but expressly not deciding the issue); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 509 n. 6 (7th Cir.1998) (strongly suggesting that employer does not incur a duty to accommodate an employee based on a history of a substantially limiting impairment when current limitations are not substantial); Gilday v. Mecosta County, 124 F.3d 760, 764 n. 4 (6th Cir.1997) (illustrating a reasonable request for accommodation and stating \\\"[t]hat such a person could request accommodation means that he is actually physically disabled under the Act, and not merely considered to be disabled or have a record of disability. Compare 42 U.S.C. \\u00a7 12102(2)(A), with id. \\u00a7 12102(2)(B), (C). A person without an actual disability would not need any accommodation.\\\"). Thus, no cause of action lies for an employer's failure to accommodate a disabled employee unless that employee is actually disabled within the meaning of 42 U.S.C. \\u00a7 12102(A).\\nBarnes, 238 F.Supp.2d at -, 2002 WL 31558024 at *31 (footnotes omitted). Therefore, as in Barnes, the court grants the defendants' motion for summary judgment as to Martinez's claim of failure to accommodate her disability to the extent that such a claim is based on a purported failure to accommodate her \\\"record of disability.\\\" Id.\\nNothing in the applicable law, however, necessarily precludes Martinez from pursuing a claim of a hostile work environment based upon a \\\"record of disability\\\" rather than an \\\"actual disability.\\\" This is so for at least two reasons. First, the need for accommodation is not pertinent to a hostile environment claim, and, second, the same discriminatory animus is afoot whether the plaintiff is \\\"actually\\\" disabled or only has a \\\"record of disability,\\\" and is harassed on that basis.\\nb. Failure to accommodate\\ni. The legal duty to accommodate. Turning to whether Martinez can generate genuine issues of material fact on her claim of failure to accommodate her actual disability, as this court also explained in Bames,\\n\\\"[Discrimination under the ADA encompasses not only adverse actions motivated by prejudice and fear of disabilities, but also includes failing to make reasonable accommodations for a plaintiffs disabilities.\\\" Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.1999); accord 42 U.S.C. \\u00a7 12112(b)(5)(A). \\\"Where an employee suffers from an actual disability (i.e., an impairment that substantially limits a major life activity), the employer cannot terminate the employee [or take other adverse action against the employee] on account of the disability without first making reasonable accommodations that would enable the employee to continue performing the essential functions of his job.\\\" Strippit, 186 F.3d at 916.\\nBarnes, 238 F.Supp.2d at -, 2002 WL 31558024 at *24.\\nii. Evidence of assignments beyond plaintiff's restrictions. The defendants contend that there is plenty of evidence of their attempts to discover what jobs Martinez could do, despite her impairments, but no evidence that Martinez ever identified any specific job that would serve as a reasonable accommodation for her disability. The court agrees. First, even the plaintiffs own evidence is that the defendants provided her with a variety of different jobs in an attempt to find one that she could do, despite her impairments. Although Martinez contends that the defendants frequently assigned her work beyond her medical restrictions, the court has not been directed to any evidence raising an inference that the defendants did so knowingly, intentionally, or with reckless disregard to Martinez's ability to perform the jobs. Moreover, the record evidence that Martinez cites in support of her contentions that representatives of Cole Se-well \\\"attempted or actually convinced the doctor to change the restrictions upon Ms. Martinez,\\\" or made an \\\"unannounced\\\" appearance at one of her medical appointments at which they \\\"convinced the doctor to change his restrictions,\\\" see Plaintiffs Brief at 20, simply do not support those contentions. Instead, the record shows that the employer's representatives requested that \\\"no work\\\" restrictions be changed with assurances that any restrictions imposed would be accommodated, because the employer desired to get the plaintiff back to work and the doctor agreed that it was important to get the plaintiff back to work. The record also shows that the presence of the employer's representatives at medical appointments was expressly requested by the treating physician to help clarify any restrictions and to avoid communication problems resulting from language barriers or exchanges of messages. The defendants point out that any failure to assign Martinez work within her capabilities was merely the result of misunderstandings about the extent of Martinez's restrictions, and that comments by supervisors or managers, of the \\\"Oh, shit!- She can't do that either\\\" variety, indicate only a realization of her limitations, not any discriminatory or retaliatory animus. Similarly, repeated requests that Martinez repeat things and evidence that supervisors could not understand her English is not necessarily an indication of discriminatory or retaliatory animus, because it might simply indicate conscientious attempts to communicate about physical limitations or other matters and frustration at the difficulties (indeed, it is possible that even laughter during conversations with Martinez had less to do with an intent to deride her ability to speak English than a nervous reaction to actual difficulties of understanding what she was trying to say, but that is an- issue pertinent to her claim of a hostile environment based on national origin, a claim on which the court has already concluded that there are genuine issues of material fact). A closer question may be presented by Martinez's assertion that statements by certain of Cole Sewell's representatives\\u2014 that they believed that Martinez was exaggerating her condition, because they believed that she had only been given work within her restrictions, as those representatives understood the restrictions \\u2014 shows a refusal to accommodate her disability, but the court still does not find in this evidence sufficient support for Martinez's failure-to-accommodate claim to let it go to the jury.\\nHowever, even if the court were to agree that there are genuine issues of material fact present on these issues, because so much depends upon the inferences to be drawn from comments and actions in context in an employment discrimination case, see, e.g., Snow, 128 F.3d at 1205 (\\\"Because discrimination cases often turn on inferences rather than on direct evidence, we are particularly deferential to the nonmovant,\\\" citing Crawford); Crawford, 37 F.3d at 1341 (\\\"Because discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant.\\\"), the court would nevertheless find that the defendants are entitled to summary judgment on Martinez's fadlure-to-aceommo-date claim. This conclusion is based on the parties' respective duties to engage in an \\\"interactive process\\\" to determine what accommodations are reasonable.\\niii. Obligations in the \\\"interactive process.\\\" In Barnes, this court considered in detail the respective duties of the employee and employer in the \\\"interactive process\\\" to determine what accommodations would be required, and the court will not repeat that discussion here. See Barnes, 238 F.Supp.2d at -, 2002 WL 31558024 at *24-*30. However, in light of the principles discussed in Barnes, the court concludes that Martinez has failed to generate a genuine issue of material fact that she held up her end of the \\\"interactive process\\\" to determine what accommodations would be required.\\nThe defendants argue that Eighth Circuit precedent establishing that the employee must notify the employer that an accommodation is needed translates into a requirement that the employee must notify the employer of specific jobs that she thinks that she can do. See Defendants' Brief at 49-50 (citing Cannice v. Norwest Bank Iowa, N.A., 189 F.3d 723, 727 (8th Cir.1999); Mole v. Buckhorn Rubber Prods., Inc., 165 F.3d 1212, 1217 (8th Cir.1999); Wallin v. Minnesota Dep't of Corrections, 153 F.3d 681, 689 (8th Cir.1998)). The court is unwilling to make such a leap. Rather, as this court explained in Barnes, the plaintiffs notice that accommodation is required, or the employer's actual knowledge of the plaintiffs impairments, triggers the employer's obligation to engage in a good faith, interactive process to determine what specific accommodations are possible and can be undertaken without undue hardship. See Barnes, 238 F.Supp.2d at -, 2002 WL 31558024 at *26-*27. It is undisputed that Cole Sewell knew about Martinez's impairments to her right thumb, wrist, and shoulder, so that Cole Sewell's obligation to engage in the interactive process was triggered. Id.\\nOn the other hand, in Barnes, this court relied on the reasoning of the Seventh Circuit Court of Appeals on assignment of responsibility for the breakdown of the interactive process:\\nThe Seventh Circuit's reasoning in Bultemeyer [v. Fort Wayne Community Schools, 100 F.3d 1281 (7th Cir.1996),] is instructive on this point:\\nAn employee's request for reasonable accommodation requires a great deal of communication between the employee and employer.... [B]oth parties bear responsibility for determining what accommodation is necessary. . \\\"[N]either party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to help the other party determine what spe cific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility.\\\"\\nBultemeyer, 100 F.3d at 1285 (quoting Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.1996)).\\nBarnes, 238 F.Supp.2d at -, 2002 WL 31558024 at *28-*29. An employee cannot simply complain about the need for accommodation or complain about the accommodations offered by the employer, leaving entirely to the employer the responsibility to exert its efforts and imagination to come up with an accommodation that will work, just as an employer cannot place the responsibility entirely on the employee to identify specific jobs that she can do, where the employer plainly has superior knowledge about, what jobs are available at its plant or premises.\\nWhere, as here, the record contains copious evidence of the employer's repeated attempts to determine what jobs would reasonably accommodate the employee's impairments \\u2014 including not only trying a variety of job assignments, but direct contact with the employee's treating physicians to try to understand what abilities the employee retained despite her impairments, and repeated requests to the plaintiff and her doctors for help to determine what would get the plaintiff back to work \\u2014 but is devoid of evidence \\u00f3f any attempt by the employee to identify any specific jobs, kinds of jobs, or even tasks that she could do, notwithstanding her impairments, the \\\"cause of the breakdown\\\" unmistakably was the employee. See id. Even in her brief in resistance to summary judgment, Martinez asserts only that she \\\"has established through her own testimony, her diary and the medical records that Cole Sewell repeatedly refused to provide her with reasonable accommodations,\\\" apparently because \\\"[s]he was frequently given job assignments that were beyond her restrictions even though she complained about them on a regular basis.\\\" See Plaintiffs Brief at 17. However, nowhere has Martinez identified evidence that, beyond \\\"complaining\\\" about job assignments, she ever affirmatively identified any jobs or kinds of tasks that she could do, or otherwise acted \\\"to help the other party determine what specific accommodations [we]re necessary.\\\" Barnes, 238 F.Supp.2d at -, 2002 WL 31558024 at *28.\\nTo put it another way, Martinez has failed to meet her burden to demonstrate that there is a genuine issue of material fact that she met her obligations under the interactive process, see Fed. R. Civ. P. 56(e) (in resisting summary judgment, the non-movant bears the burden to go beyond the pleadings, and by affidavits, or by the \\\"depositions, answers to interrogatories, and admissions on file,\\\" designate \\\"specific facts showing that there is a genuine issue for trial\\\"); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Rabushka, 122 F.3d at 562; McLaughlin, 50 F.3d at 511; Beyerbach, 49 F.3d at 1325, and in this case, this issue presents one of \\\"those rare instances where there is no dispute of fact and where there exists only, one conclusion.\\\" Johnson, 931 F.2d at 1244; see also Webb v. St. Louis Post-Dispatch, 51 F.3d 147, 148 (8th Cir.1995) (quoting Johnson, 931 F.2d at 1244); Crawford, 37 F.3d at 1341 (quoting Johnson, 931 F.2d at 1244). The defendants are, therefore, entitled to summary judgment on Martinez's failure-to-accommodate claim-.\\nc. Hostile environment\\nMartinez is correct that she also pleaded, as part of her disability discrimination claim, creation of a hostile work environment based on disability. The defendants responded to this contention by arguing, in their reply brief, that they are entitled to summary judgment on such a claim, as well, because Martinez cannot identify any conduct rising (or sinking) to the level of a legally cognizable hostile environment based on disability.\\nAs the Eighth Circuit Court of Appeals recently explained,\\n[T]his court has \\\"never recognized an ADA [or Rehabilitation Act] claim based on a hostile work environment.\\\" Wallin v. Minnesota Dep't of Corrs., 153 F.3d 681, 687 (8th Cir.1998). For purposes of analysis, we will assume one exists and \\\"would be modeled after the similar claim under Title VII.\\\" Id. at 688 (internal quotation omitted). Thus, [the plaintiff] ha[s] to offer evidence of harassment that was \\\" 'so severe or pervasive as to alter the conditions of [her] employment and create an abusive working environment.' \\\" Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).\\nJeseritz v. Potter, 282 F.3d 542, 547 (8th Cir.2002). Here, the court concludes that, as a matter of law, Martinez cannot establish such a claim, even if the claim were recognized in this circuit, because she cannot generate a genuine issue of material fact on the requisite severity or pervasiveness of the hostile or abusive environment.\\nThis is so, first, because the evidence upon which Martinez relies to show that she can generate a genuine issue of material fact that she was subjected to a hostile environment based on disability is the same evidence that she relied on, unsuccessfully, to show a failure to accommodate: evidence that she was repeatedly assigned work that was beyond her restrictions. Where the court concluded that, under the circumstances of this case, this evidence would not reasonably generate a genuine issue of material fact that the employer failed to engage in the \\\"interactive process\\\" to determine what accommodation was required, but instead demonstrated that the employer had met its obligation in the \\\"interactive process,\\\" the same evidence cannot reasonably support a claim of \\\"harassment\\\" because of disability that was so \\\"severe or pervasive\\\" as to create a hostile work environment. See Jeseritz, 282 F.3d at 547 (if a claim of hostile environment harassment is viable under the ADA, the harassment must be \\\"severe or pervasive\\\" to be actionable).\\nSecond, unlike the alleged harassment by co-workers and supervisors based upon Martinez's national origin \\u2014 which allegedly involved frequent use of such derogatory, humiliating, and inflammatory epithets as \\\"shitty Mexican\\\" and \\\"wetback\\\" \\u2014 the alleged harassment by co-workers and supervisors .because of disability simply does not satisfy, as a matter of law, the \\\"severe or pervasive\\\" requirement. The only additional evidence of disability harassment that Martinez has identified is that coworkers, and perhaps supervisors, called her \\\"lazy\\\" or \\\"mummy,\\\" the latter comment in reference to her bandages or splints. Even if such comments were \\\"repeated,\\\" as Martinez contends, \\\"by 'looking at all the circumstances,' \\\" in addition to the \\\" 'frequency of the discriminatory conduct,' \\\" these comments lack the necessary \\\" 'severity,' \\\" they were not \\\" 'physically threatening,' \\\" nor even particularly \\\" 'humiliating,' \\\" but instead constituted \\\" 'mere offensive utterance[s]' \\\" that did not \\\" 'unreasonably interfere] with [Martinez's] work performance.' \\\" Breeden, 532 U.S. at 270-71, 121 S.Ct. 1508 (quoting Faragher v. Boca Raton, 524 U.S. at 787-788, 118 S.Ct. 2275, in turn quoting Harris, 510 U.S. at 23, 114 S.Ct. 367).\\nBecause Martinez has failed to generate a genuine issue of material fact that she was subjected to disability harassment that was sufficiently \\\"severe and pervasive\\\" to sustain such a claim, even if it is recognized in this circuit, the defendants are entitled to summary judgment on that claim. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548; In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 113 F.3d at 1492.\\nd. Constructive discharge\\nIn light of the foregoing, the court also need give no more than brief consideration to Martinez's claim that any disability discrimination caused her constructive discharge. Even if her claims of failure to accommodate her disability and creation of a hostile work environment because of her disability could be sustained on the present record, which the court concluded above they could not, the court has no trouble concluding that nothing about the alleged disability discrimination made Martinez's workplace so \\\"intolerable\\\" as to make a reasonable person believe that she had no alternative but to quit, or that her employer intended to force her to quit. See Baker, 220 F.Supp.2d at 1021-23. Therefore, even if the defendants were not otherwise entitled to summary judgment on Martinez's disability discrimination claims, they would be and are entitled to summary judgment on her contention that disability discrimination caused her constructive discharge.\\nE. Intentional InMction Of Emotional Distress\\n1. Arguments of the parties\\nFinally, the court turns to the defendants' contention that they are entitled to summary judgment on Martinez's claim of intentional infliction of emotional distress on the ground that the claim is preempted by her statutory discrimination claims. Somewhat more specifically, the defendants contend that Martinez has alleged that she suffered severe emotional distress when the defendants subjected her to a hostile work environment and discrimination because of her disability and national origin, which demonstrates that the claim does not have a \\\"separate and independent basis,\\\" apart from discrimination, but instead is entirely based on the same conduct that Martinez alleges is discriminatory, and as such, is preempted by the exclusivity provisions of the state civil rights statute.\\nIn response, Martinez argues that her claim of intentional infliction of emotional distress does not hinge upon or require proof of discrimination, because the claims is complete without any reference to discrimination on the basis of national origin or disability. The conduct upon which the claim is based, she contends, includes coercing doctors to change her restrictions, harassing her because she was \\\"lazy,\\\" and refusing to give her work. Therefore, to the extent that she might not meet the definition of an employee with a disability, she contends that her claims should survive as claims of intentional infliction of emotional distress.\\nIn reply, the defendants contend that Martinez is trying to manufacture a new claim of negligent supervision and retention that was not pleaded in her Amended Complaint. Instead, they point out, paragraph by paragraph, how Martinez's claim of intentional infliction of emotional distress relies on precisely the same allegations as her discrimination claims. Thus, they contend, her claim of intentional infliction of emotional distress is contingent upon proof of precisely the same things as her discrimination claims, and is, therefore, preempted.\\n2. Applicable law\\nAs the Iowa Supreme Court has explained,\\nTo establish a prima facie claim for intentional infliction of emotional distress the plaintiff must satisfy the following four elements: (1) outrageous conduct by the defendant; (2) the defendant intentionally caused, or recklessly disregarded the probability of causing, the emotional distress; (3) plaintiff suffered severe or extreme emotional distress; and (4) the defendant's outrageous conduct was the actual and proximate cause of the emotional distress. Steckelberg v. Randolph, 448 N.W.2d 458, 461 (Iowa 1989).\\nBefore defendants' conduct can be considered outrageous, it must be \\\"so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.\\\" Harsha v. State Savs. Bank, 346 N.W.2d 791, 801 (Iowa 1984). Outrageous conduct must be established by substantial evidence. Vinson v. Linn-Mar Community Sch. Dist., 360 N.W.2d 108, 118 (Iowa 1984).\\nFuller v. Local Union No. 106 of United Broth. of Carpenters, 567 N.W.2d 419, 423 (Iowa 1997).\\nHowever, this court considered whether a state common-law claim of intentional infliction of emotional distress is preempted by the Iowa Civil Rights Act a few years ago in Westin v. Mercy Medical Servs., Inc., 994 F.Supp. 1050 (N.D.Iowa 1998). In Westin, this court explained the applicable principles, in pertinent part, as follows:\\nThe ICRA, Iowa Code Chapter 216, established the Iowa Civil Rights Commission and provides statutory remedies for enforcement of basic civil rights. Greeenland v. Fairtron Corp., 500 N.W.2d 36, 37 (Iowa 1993). The Iowa Supreme Court has held that section 216.16(1) renders the chapter's remedies exclusive and preemptive. Greenland,\\n500 N.W.2d at 37; Grahek v. Voluntary Hosp. Co-op. Ass'n of Iowa, Inc., 473 N.W.2d 31, 33 (Iowa 1991); Northrup v. Farmland Indus., Inc., 372 N.W.2d 193, 197 (Iowa 1985). Preemption occurs unless the claims are separate and independent, and therefore incidental, causes of action. Greenland, 500 N.W.2d at 38; Grahek, 473 N.W.2d at 34; Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 639 (Iowa 1990). The claims are not separate and independent when, under the facts of the case, success on the claim not brought under chapter 216 requires proof of discrimination. Greenland, 500 N.W.2d at 38.\\n% :}: # i|s \\u2021 ^5\\nIn its most recent pronouncement on the subject, the Iowa Supreme Court held that a claim of intentional infliction of emotional distress was preempted by the ICRA because the plaintiff had to prove sexual discrimination to be successful on the emotional distress claim. Greenland, 500 N.W.2d at 38. The court held that the test is whether, in light of the pleadings, discrimination is made an element of the alternative claims. Id. The court concluded that:\\nWe think the answer with regard to the emotional distress claim is yes, resulting in preemption. Discrimination through sexual harassment is the \\\"outrageous conduct\\\" [plaintiff] specifically alleges in her claim for intentional infliction of emotional distress. So under the facts she alleges, if she were to fail in her claim of discrimination, [plaintiff] would necessarily fail in her claim of intentional infliction of emotional distress. Stated otherwise, it is impossible for [plaintiff] to establish the emotional distress she alleges without first proving discrimination.\\nId. The court also addressed the apparent inconsistency between this holding and the Northrup decision in which the court had entertained an emotional distress claim based on termination for alcoholism after concluding that the plaintiff had a viable claim under 601A for discrimination on the basis of alcoholism. Northrup, 372 N.W.2d at 197-99. In Greenland, the Iowa Supreme Court noted that contrary to the plaintiff's contentions, the decisions in Vaughn and Northrup did not implicitly allow separate claims for intentional infliction of emotional distress in conjunction with the ICRA discrimination claims, because preemption of the emotional distress claims was never raised or considered in either appeal. Greenland, 500 N.W.2d at 38.\\nWestin, 994 F.Supp. at 1056-57.\\nNothing in more recent decisions of the Iowa Supreme Court is to the contrary. Just last year, the Iowa Supreme Court considered a contention that Greenland had been wrongly decided, summarizing the holding of that case as follows:\\nIn Greenland v. Fairtron Corp., we held that the ICRA, Iowa Code chapter 216 (formerly chapter 601A), provides the exclusive remedy for particular conduct prohibited under that statute. 500 N.W.2d 36, 38 (Iowa 1993). \\\"Preemption occurs unless the claims are separate and independent, and therefore incidental, causes of action.\\\" Id. If, under the facts of the case, success on the non-ICRA claims requires proof of discrimination, such claims are not separate and independent. Id. \\\"The test is whether, in light of the pleadings, discrimination is made an element of' the non-ICRA claims.\\nChannon v. United Parcel Service, Inc., 629 N.W.2d 835, 857 (Iowa 2001). The Iowa Supreme Court then concluded, \\\"we see no reason to revisit our holding in Greenland. We think the conclusion this court reached in Greenland is a correct interpretation. and application of the ICRA.\\\" Id.\\n3. Application of the law\\nFrom the face of the Amended Complaint, it is apparent, as the defendants contend, that Martinez's claim of intentional infliction of emotional distress relies on precisely the same conduct that she elsewhere contends is discriminatory. Specifically, her claim of intentional infliction of emotional distress in Count V is premised on a repleading of paragraphs 1 through 11, 13 through 19, and 27 through 31 of the Amended Complaint. However, paragraphs 1 through 11 plead no conduct of the defendants, but instead plead a jurisdictional basis for the Amended Complaint, the identity of the parties, and conditions precedent to suit. See Amended Complaint, \\u00b6 1-11. Paragraphs _ 13 through 19, however, allege conduct forming the basis of Martinez's claims of a hostile environment, disparate treatment, and constructive discharge on the basis of sex and national origin in violation of Title VII, see id. at \\u00b6 13-19, and paragraphs 27 through 31 allege conduct forming the basis of Martinez's claims of disability discrimination in violation of the ADA. Id. at \\u00b6 27-31. Although Martinez does not allege that her claim of intentional infliction of emotional distress is premised on the same conduct establishing her claims of sex, national origin, and disability discrimination in violation of the ICRA, she cannot thereby avoid preemption of the common-law claim by the state statutory claim. This is so, because the claim based on the ICRA is nevertheless premised on the same conduct as the common-law claim, because Martinez also alleges that the ICRA claim is based on the reallegation of paragraphs 1 through 10, 12 through 18, and 26 through 30 of the Amended Complaint. Id. at 32. Thus, as pleaded, \\\"discrimination is made an element of the al ternative claim\\\" of intentional infliction of emotional distress, and Martinez must prove discrimination to be successful on her emotional distress claim. See Westin, 994 F.Supp. at 1057. Therefore, under the \\\"Greenland test,\\\" her claim of intentional infliction of emotional distress is preempted by her discrimination claims. Id.\\nTo the extent that Martinez now tries to premise her claim of intentional infliction of emotional distress on conduct that was not alleged to be discriminatory, or that the court has now held does not constitute actionable discrimination, there is, first, nothing in Iowa law that implicitly allows a plaintiff to plead separate claims for intentional infliction of emotional distress in conjunction with ICRA discrimination claims. See id. at 1058 (citing Greenland, 500 N.W.2d at 38). Second, the court agrees with the defendants' contention at oral arguments that any conduct that was not alleged to be discriminatory, or that the court has held is not actionable discrimination, simply is not sufficiently \\\"outrageous\\\" to sustain the state common-law claim. See Fuller, 567 N.W.2d at 428.\\nTherefore, the defendants are entitled to summary judgment on Martinez's claim of intentional infliction of emotional distress.\\nIII. CONCLUSION\\nHaving made its way, at last, to the end of the daunting list of issues presented by the defendants' motion for summary judgment and the plaintiffs resistance, the court will briefly summarize its conclusions. First, Martinez's express withdrawal of her \\\"claim of sexual discrimination\\\" from this lawsuit encompassed withdrawal of her \\\"constituent\\\" claims of hostile environment harassment, disparate treatment, and constructive discharge based on sex, but not her claim of retaliation based on complaints about sexual discrimination, because the latter claim is pleaded in a separate count of Martinez's Amended Complaint and retaliation is prohibited by a separate section of Title VII from the statutory prohibition on other discriminatory conduct. Although the court agrees with the defendants that Martinez has implicitly withdrawn her claim of disparate treatment based on national origin, or has failed to carry her burden in resistance to a motion for summary judgment on that claim, by failing to identify evidence in support of that claim, in an abundance of caution, the court concludes that Martinez has at least attempted to resist the defendants' motion for summary judgment on her claim that harassment because of her national origin ultimately caused her constructive discharge. The court also recognizes that the defendants have withdrawn their motion for summary judgment as to Martinez's claim of a hostile environment based on national origin.\\nAs to more substantive questions, concerning the claims still at issue in the case and on the defendants' motion for summary judgment, the court concludes, first, that Martinez has satisfied or generated genuine issues of material fact as to the elements of her prima facie case of retaliation in violation of Title VII. Moreover, considering the shifting of burdens at the final stages of the McDonnell Douglas analysis of this claim, the court also concludes that this is not one of \\\"those rare instances where there is no dispute of fact and where there exists only one conclusion,\\\" such that summary judgment is appropriate on Martinez's Title VII retaliation claim. Consequently, the defendants are not entitled to summary judgment on Martinez's claim of retaliation in violation of Title VII. Nor are the defendants entitled to summary judgment on Martinez's contention that violations of Title VII, based on her national origin, caused her constructive discharge. Specifically, Martinez has generated genuine issues of material fact that she was subjected to such frequent, gross, and offensive epithets concerning her Mexican origin as to make her workplace intolerable and that a reasonable jury could conclude That Martinez's resignation was a reasonably foreseeable consequence of the conduct to which she was subjected, giving rise to the necessary inference of intent to force her to quit, even in the absence of \\\"conscious intent.\\\"\\nTurning to Martinez's disability discrimination claims, the court concludes that Martinez has premised these claims on \\\"actual disability\\\" and a \\\"record of disability,\\\" but not on \\\"perceived disability,\\\" although a claim of failure to accommodate disability can only be based on \\\"actual disability.\\\" Also, Martinez's disability discrimination claims must be based on physical impairments to her right hand, not any mental impairments, because the latter were not impairments about which the employer had the requisite knowledge. Ultimately, however the court concludes that the defendants are entitled to summary judgment on Martinez's claim of failure to accommodate her disability, because Martinez has failed to generate a genuine issue of material fact that the defendants knowingly or intentionally assigned her work that exceeded her medical restrictions, and/or because the record simply will not support an inference that Martinez upheld her end in the \\\"interactive process\\\" to discover what accommodation was appropriate for her impairments, while .Cole Se-well plainly did. Similarly, the defendants are entitled to summary judgment on Martinez's claim of a hostile environment based on disability, even assuming that such a claim would be recognized in this circuit, because Martinez has not generated a genuine issue of material fact that she was subjected to any \\\"harassment\\\" because of her disability that was sufficiently \\\"severe or pervasive\\\" to sustain the claim, where, in the first instance,-,she relies on conduct that the court has held did not constitute failure to accommodate, and in the second instance, she relies on alleged harassment by co-workers and supervisors involving name-calling that is insufficient. Even if Martinez has stated actionable claims of disability discrimination, however, the court concludes that, as a matter of law, she has not generated a genuine issue of material fact that-any disability discrimination to which- she was subjected was sufficient to cause her constructive discharge.\\nFinally, the court concludes that the defendants are entitled to summary judgment on Martinez's claim' of intentional infliction of emotional distress for two reasons. First, as a matter of law, the claim is preempted by Martinez's state statutory claims of discrimination. Second, to the extent that the claim is not preempted, Martinez has not generated a genuine issue of material fact that the conduct upon which she relies is sufficiently \\\"outrageous\\\" to sustain the claim.\\nTHEREFORE,\\n1. Martinez has withdrawn her claims of sexual discrimination in violation of Title VII and the Iowa Civil Rights Act in Counts I and IV, respectively, of her Amended Complaint, and those claims are dismissed.\\n2. The Defendants' motion for summary judgment is granted in part and denied in part, as follows:\\na. The motion is denied as to Martinez's claims of national .origin discrimination in violation of Title VII and the Iowa Civil Rights Act in Counts I and TV, respectively;\\nb. The motion is denied as to the claim of retaliation in violation of Title VII in Count II;\\nc. The motion is granted as to the claim of disability discrimination in .violation of the ADA and in violation of the Iowa Civil Rights Act, in Counts III and IV, respectively, and as a consequence, Count III, in its entirety, and the pertinent part of Count IV are dismissed; and\\nd. The motion is granted as to the claim of intentional infliction of emotional distress in Count V, and that count is dismissed in its entirety.\\n3.This matter will proceed to trial on the plaintiffs claim of a hostile work environment because of national origin in violation of Title VII and the Iowa Civil Rights Act, in Counts I and IV, respectively, and retaliation for complaining about discrimination in violation of Title VII in Count II.\\nIT IS SO ORDERED.\\n. Wilson v. Myers, 823 F.2d 253, 256 (8th Cir.1987).\\n. Although Martinez originally claimed that she was also harassed because of her sex, she has since withdrawn that claim.\\n. In Reeves, the Supreme Court was considering a motion for judgment as a matter of law after a jury trial, but the Supreme Court also reiterated that \\\"the standard for granting summary judgment 'mirrors' the standard for judgment as a matter of law, such that 'the inquiry under each is the same.' ' Reeves, 530 U.S. at 150, 120 S.Ct. 2097 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Therefore, the standards articulated in Reeves are applicable to the present motion for summary judgment.\\n. This count pleads the same claims as to \\\"national origin.\\\" See id.\\n. In the court's view, \\\"constructive discharge\\\" is not a separate claim under Title VII, but a contention regarding the effects of alleged discrimination and available relief, notwithstanding that proof of \\\"constructive discharge\\\" requires proof of specific elements in much the same way as the principal discrimination claim requires proof of specific elements.\\n. The court is aware that Martinez has asserted disability discrimination claims under both the ADA and state law. However, the parties have not argued, and the court cannot find, that there is some significant difference between the way 'disability\\\" is defined under the ADA and the Iowa Civil Rights Act. See, e.g., Bearshield v. John Morrell & Co., 570 N.W.2d 915, 918 (Iowa 1997) (''Given the common purposes of the ADA and the ICRA's prohibition of disability discrimination, as well as the similarity in the terminology of these statutes, we will look to the ADA and underlying federal regulations in developing standards under the ICRA for disability discrimination claims. [Citations omitted].... Given the identity of the applicable legal principles and analytical framework with respect to the question of whether one has a disability under the ADA and the ICRA, our subsequent discussion of whether [the plaintiff] is disabled applies equally to her claims under both statutes.\\\"). Therefore, the court's discussion of \\\"disability\\\" here applies equally to Martinez's claims under the ADA and the ICRA. Id.\"}"
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+"{\"id\": \"11501661\", \"name\": \"Cinsa, S.A. de C.V., plaintiff v. United States, defendant and General Housewares Corp., defendant-intervenor\", \"name_abbreviation\": \"Cinsa, S.A. de C.V. v. United States\", \"decision_date\": \"1997-04-04\", \"docket_number\": \"Court No. 93-09-00538\", \"first_page\": \"341\", \"last_page\": \"352\", \"citations\": \"21 Ct. Int'l Trade 341\", \"volume\": \"21\", \"reporter\": \"United States Court of International Trade Reports\", \"court\": \"United States Court of International Trade\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:28:51.234881+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Cinsa, S.A. de C.V., plaintiff v. United States, defendant and General Housewares Corp., defendant-intervenor\", \"head_matter\": \"966 F. Supp. 1230\\nCinsa, S.A. de C.V., plaintiff v. United States, defendant and General Housewares Corp., defendant-intervenor\\nCourt No. 93-09-00538\\n(Dated April 4, 1997)\\nManat\\u00ed, Phelps & Phillips (Irwin P. Altschuler, David R. Amerine and Ronald M. Wisla) for plaintiff.\\nFrank W. Hunger, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, (VeltaMelnbrencis) for defendant.\\nKing & Spalding (Joseph W. Dorn and Gregory C. Dorris) for defendant-intervenor.\", \"word_count\": \"5160\", \"char_count\": \"33289\", \"text\": \"Opinion\\nMusgrave, Judge:\\nPlaintiff Cinsa, S.A. de C.V. (\\\"Cinsa\\\") brings this action to contest the final results of the fourth administrative review of the antidumping duty order Porcelain-on-Steel Cooking Ware from Mexico; Final Results of Antidumping Duty Administrative Review, 58 Fed. Reg. 43,327 (1993). In the final results, the U.S. Department of Commerce (\\\"Commerce\\\") determined that Cinsa would be assessed a 8.18% dumping margin. Pursuant to 19 U.S.C. \\u00a7 1516a(a)(2)(A)(ii) (1994) Cin-sa appealed the final results and requested that this Court reverse the final results and remand the action with respect to: (1) calculation of the cost of production (\\\"COP\\\") and constructed value (\\\"CV\\\") using historical rather than revalued depreciation; (2) calculation of COP and CV ex- eluding employee profit sharing expense; (3) calculation of CV using Cinsa's arm's length purchase prices to value enamel frit raw material costs; and (4) calculation of COP and CV using all verified interest income. The Court has jurisdiction over this matter pursuant to 19 U.S.C. \\u00a7 1516a(a)(2)(A) (1994) andremands Commerce's finding of calculation of CV to determine whether the transfer price of enamel frit constituted an arm's length transaction as prescribed by the statute and previous practice. The Court affirms the final results with respect to the calculation of COP and CV using revalued rather than historical depreciation, calculation of COP and CV including employee profit sharing expense and calculation of COP and CV using all verified interest income.\\nBackground\\nOn December 2, 1986, Commerce issued an antidumping duty order on Porcelain-on-Steel Cooking Ware from Mexico, 51 Fed. Reg. 43,415 (1986). On January 30,1991, Commerce initiated its fourth administrative review of the order as to Cinsa and another Mexican manufacturer covering the period from December 1,1989 to November 30,1990. Porcelain-on-Steel Cooking Ware from Mexico; Notice of Initiation, 56 Fed. Reg. 3,445 (1991). On February 13, 1991 Commerce issued an anti-dumping questionnaire to Cinsa and Cinsa filed a timely response on April 26,1991. Commerce issued a supplemental questionnaire to Cinsa on June 5,1991 and Cinsa made timely supplemental response on June 21, 1991. Commerce conducted an on-site verification of Cinsa's questionnaire responses between July 8 and July 12, 1991. Separate sales and cost verification reports were issued on December 17, 1991.\\nOn December 27,1991, Commerce issued its preliminary determination establishing a 6.27% dumping margin for Cinsa. Porcelain-on-Steel Cooking Ware from Mexico; Preliminary Results of Antidumping Duty Administrative Review, 56 Fed. Reg. 67,062 (1991). For the preliminary determination Commerce revised Cinsa's reported COP and/or CV calculations to: (1) increase COP and CV to take into account revalued depreciation; (2) increase COP and CV to take into account employee profit sharing expenses; (3) use best information available (\\\"BIA\\\") to increase the reported raw material costs for enamel frit; and (4) increase COP and CV by offsetting total interest expense with short-term interest expense to zero. Cinsa and defendant-intervenor General Housewares Corp. (\\\"GHC\\\") submitted their comments on January 27, 1992. On February 3, 1992, Cinsa and GHC filed comments in rebuttal. On August 16,1993, Commerce published the final results of the antidump-ing administrative review establishing an 8.18% antidumping duty assessment rate and future duty deposit rate for Cinsa. Porcelain-on-Steel Cooking Ware from Mexico; Final Results of Antidumping Duty Administrative Review, 58 Fed. Reg. 43,327 (1993) (\\\"final results\\\").\\nOn August 24,1993, Cinsa timely filed comments alleging ministerial and clerical errors in Commerce's final results. On September 1,1993, GHC filed a response to Cinsa's claims of clerical errors. Cinsa timely filed this action to contest the alleged errors on September 15,1993. On December 23,1993, Commerce determined that certain errors were, indeed, made in the final results and revised Cinsa's antidumping duty assessment rate and future duty deposit rate to 6.71%. OnMarch31,1994, this Court granted leave for Commerce to publish the corrected final results of its fourth administrative review, which was published on May 6, 1994. Porcelain-on-Steel Cooking Ware from Mexico; Amendment to Final Results of Antidumping Duty Administrative Review, 59 Fed. Reg. 23,694 (1994). Cinsa nevertheless appeals the findings made in the amended final results with respect to Commerce's: (1) calculation of COP and CV using revalued rather than historical depreciation; (2) calculation of COP and CV including employee profit sharing expense; (3) calculation of CV using Cinsa's arm's length purchase prices to value enamel frit raw material costs; and (4) calculation of COP and CV using all verified interest income.\\nStandard of Review\\nThe Court \\\"shall hold unlawful any determination, finding, or conclusion found to be unsupported by substantial evidence on the record, or otherwise not in accordance with law, \\\" 19 U.S.C. \\u00a7 1516a(b)(1)(B) (1994). Substantial evidence \\\"means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\\\" Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (citation omitted). \\\"[Substantial evidence] is 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. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966) (citations omitted). \\\"As long as the agency's methodology and procedures are reasonable means of effectuating the statutory purpose, and there is substantial evidence in the record supporting the agency's conclusions, the court will not impose its own views as to the sufficiency of the agency's investigation or question the agency's methodology.\\\" Ceramica Regiomantana, S.A. v. United States, 10 CIT 399, 404-5, 636 F. Supp. 961, 966 (1986), aff'd 5 Fed. Cir. (T) 77, 810 F.2d 1137 (1987) (citations omitted).\\nDiscussion\\nI. Revalued Depreciation Costs vs. Historical Depreciation Costs:\\nIn a preliminary matter, Commerce asserts that Cinsa is barred from bringing the issue of distortion of depreciation cost methods because Cinsa failed to raise the issue during the administrative proceeding. The Court finds that Cinsa's well documented disagreement with the use of revalued depreciation costs in determining COP/CV in the administrative record necessarily involves the issue of distortion. As Commerce states, \\\" [t]his Court has accepted Commerce's practice of using a 'firm's expenses as recorded in its financial statements as long as those statements are prepared in accordance with the home country's GAAP and do not significantly distort the firm's financial position or actual costs.'\\\" Def.'s Mem. Opp'n Pl.'s Mot. Summ. J. at 11. (emphasis added) (citations omitted). Commerce cannot utilize the language of the Court in one instance and disregard that same language in another. The Court finds that distortion of costs is a necessary component in the review of depreciation cost methodology as the quote above clearly points out.\\nCinsa submitted depreciation costs based on the historical method in its questionnaire response but submitted financial statements that utilized revalued depreciation costs. Cinsa argues that historical depreciation values best reflects the actual costs during the period of review (\\\"POR\\\"). Commerce relied on depreciation costs based on the revalued method that Cinsa had used to calculate its own financial records. The issue turns on where the burden of persuasion lies: is Commerce required to make a finding that the home market GAAP does not distort COP or is the burden on Cinsa to make a showing that the home market GAAP distorts COP? It is the view of Commerce that the revalued numbers reflect the method accepted by Mexican GAAE] ending their inquiry. Cinsa argued that revalued figures distort the actual costs of the merchandise and should not be used in calculating COP\\nPursuant to an affirmative finding of sales at less than fair value (\\\"LTFV\\\") Commerce is directed to impose an antidumping duty \\\"in an amount equal to the amount by which the foreign market value exceeds the United States Price for the merchandise.\\\" 19 U.S.C. \\u00a7 1673(2)(B) (1994). When Commerce makes a determination that foreign market value (\\\"FMV\\\") cannot be based on home market pricing due to inadequate sales at prices not below the COP in that home market, as is the case here, Commerce may use constructed value (\\\"CV\\\") as a basis for FMV. 19 U.S.C. \\u00a7 1677b(a)(4) (1994). CV is determined by calculating the sum of the cost of materials and the \\\"fabrication or processing of any kind employed in producing such or similar merchandise which would ordinarily permit the production of that particular merchandise in the ordinary course of business.\\\" 19 U.S.C. \\u00a7 1677b(e) (1994).\\nIn determining CV under these circumstances, Commerce has utilized the cost values from Cinsa's questionnaire responses and from Cinsa's submitted financial statements. Both revalued and historical cost methods are recognized under Mexican generally accepted accounting principles (\\\"GAAP\\\"). Commerce has employed both historical and revalued depreciation methods in determining CV in previous cases. The relevant legislative history provides that Commerce \\\"will employ accounting principles generally accepted in the home market of the country of exportation if [Commerce] is satisfied that such principles reasonably reflect the variable and fixed costs of production the merchandise.\\\" H. R. Rep. No. 93-571, at 71 (1973).\\nIn determining the proper methodology in determining CV, the Court has previously found that\\nthis Court has consistently upheld Commerce's reliance on a firm's expenses as recorded in the firm's financial statements, as long as those statements were prepared in accordance with the home country's GAAP and does not significantly distort the firm's actual costs.\\nFAG U.K. Ltd. v. United States, 20 CIT 1277, 1290, 945 F. Supp. 260, 271 (1996) (citations omitted). The same situation exists in the instant case. Cinsa submitted its financial statements that reflected revalued depreciation costs which were consistent with Mexican GAAP The Court finds that the burden rests on Cinsa to prove that the use of revalued depreciation in calculating CV and COP distorted costs.\\nThe court finds that respondents have failed to demonstrate that the ITA's decision to use Hyundai's revalued depreciation expenses is distortive. The verified revalued depreciation expenses were consistent with Korean GAAP and were based on information obtained directly from Hyundai's financial statements.\\nLaclede Steel Co. v. United States, 18 CIT 965, 975, (1994). Commerce is directed to make a finding that cost values reflect the home country GAAP and were based on that firm's financial statements, which is what occurred in the instant case.\\nCinsa failed to satisfy the burden in proving that the use of revalued depreciation costs distorted the actual cost of the subject merchandise. Cinsa argued that use of revalued depreciation costs distorted actual costs of production. Cinsa stated that\\nin calculating COP/CV for a specific period of time, the revaluation of assets has a distortive effect on depreciation expenses. Due to constant revaluation, over time the restatement of depreciation of assets results in charges that can be greater than the acquisition cost of the asset, and can continue past the end of the asset's useful life. Thus, while the restatement of depreciation may be appropriate for financial statement purposes, the restatement of depreciation expenses is not appropriate for all purposes.\\nPl.'s Mem Supp Summ. J. at 14 (emphasis added). Although Cinsa's argument is objectively correct in that any accounting method can or may be distortive, Cinsa fails to demonstrate that the revalued method is dis-tortive in the instant case. Cinsa makes no showing that during the POR use of revalued depreciation distorted costs. For example, Cinsa never posits, much less proves, that using the revalued cost method actually resulted in charges that are greater than the acquisition costs of its assets in this case. Cinsa, therefore, has failed to satisfy its burden and the Court holds that Commerce's use of revalued depreciation costs in determining COP/CV is supported by substantial evidence on the record and otherwise in accordance with law.\\nII. Inclusion of Profit Sharing Expense in COP Calculation:\\nCinsa is required to share earned profits with its employees pursuant to Mexican law. Cinsa shares earned profit only if the company actually earns a profit on its operations. Cinsa did not include profit sharing expense paid during the POR in its calculation of COP/CV claiming that profit sharing is contingent on profitability and is not attributable to the cost of production of the subject merchandise and therefore is properly treated as an income tax, which is not included in COP/CV calculations. Commerce, however, included Cinsa's profit sharing expense in its calculation of COP/CV arguing that profit sharing expenses are a part of the production process and therefore a component of labor wages. Relying on its own administrative precedent, Commerce characterized profit sharing expenses as mandatory payments representing \\\"compensations to the employees involved in the production of the merchandise and administration of the company.\\\" Porcelain-on-Steel Cooking Ware from Mexico; Final Results of Antidumping Duty Administrative Review, 58 Fed. Reg. 43,327 at 43,332 (1993). Commerce has found that all \\\"costs related to labor, bonuses and fringe benefits are considered to be part of the labor expense and, thus, a cost of production.\\\" Porcelain-on-Steel-Cooking Ware From Taiwan, 51 Fed. Reg. 36,425 at 36,428 (1986).\\nIncluding profit sharing expense in the calculation of the COP is an issue of first impression for the Court. Constructed value is ascertained by calculating the sum of the\\nthe cost of materials and fabrication or other processing of any kind employed in producing the merchandise, during a period which would ordinarily permit the production of the merchandise in the ordinary course of business;\\n19 U.S.C. \\u00a7 1677b(e)(1) (1994). Whether employee profit sharing expenses should be included in CV and COP calculations turns on how profit sharing expenses are classified. If profit sharing expenses are classified as a necessary component of production, as Commerce argues, they are properly includable in COP/CV calculations. If profit sharing expenses are classified as a type of income tax, profit sharing expenses would not be includable in the cost of production. Mexican law requires firms to pay employees a certain percentage of the profits earned, therefore, profit sharing is properly characterized as a cost of doing business in Mexico and the expense is properly classified as a cost of production as required by the statute. The Court finds that Commerce's inclusion of profit sharing expenses in calculation COP/CP is not inconsistent with 19 U.S.C. \\u00a7 1677b(e)(l), is supported by substantial evidence and is otherwise in accordance with law.\\nIII. Related Party Pricing:\\nPursuant to the antidumping statute, Commerce may utilize best information available (\\\"BIA\\\") if pricing between related parties does not \\\"fairly reflect the amount usually reflected in sales in the market under consideration.\\\" Commerce determined that Cinsa purchased enamel frit, an ingredient used in production of the subject merchandise, from a related supplier at prices that were not at arm's length and consequently used BIA to calculate the price in determining the CV of the subject merchandise. In the first three administrative reviews, Commerce accepted the pricing from the related supplier in its calculation of constructed value of the subject merchandise. In the fourth administrative review now before the Court, Commerce departed from this methodology and used BIA in its CV calculation. Cinsa objects to this departure from Commerce's methodology used in the three previous reviews.\\nIn its questionnaire response, Cinsa stated that it obtained enamel frit from a related supplier at a cost substantially lower than sales to unrelated parties. Cinsa explained that this discount was due to factors not associated with the relationship with the supplier. Specifically, Cinsa described in its questionnaire response that the discount was due to the savings of transportation costs and volume discounts. Cinsa argues its questionnaire response provided Commerce with adequate information substantiating its claim that the prices of enamel frit were above the cost of production. Cinsa claims that proof of prices above the cost of production is all that Commerce required Cinsa in certifying that the transfer prices were at arm's length. Further, Cinsa also asserts that the information that it had provided in its questionnaire response was exactly the same for the previous three administrative reviews where Commerce posed the identical question yet reached a different conclusion.\\nCommerce defended its use of BIA by stating that the burden of proof to demonstrate arm's length transactions, the test for related parties, rests squarely on the respondent of the questionnaire. Commerce concluded that Cinsa did not meet this burden in the fourth review because Cinsa failed to provide pricing information on sales of enamel frit to unrelated third parties. In the final results, Commerce found that\\nCINSA's submission indicated that the transfer prices from its related supplier were less than the prices paid by an unrelated pur chaser of the same material, we determined that the transfer prices were not made at arm's length. Therefore, in accordance with 773(e)(2) of the Act [19 U.S.C. \\u00a7 1677b(f)(2)], we used BIA for constructed value to calculate the cost of the enamel frit used by CINSA.\\n58 Fed. Reg. 43,327 at 43,332 (1993). Commerce may disregard transactions between related parties if one of the elements of value does not reflect the amount usually reflected in sales in the market for the subject merchandise. 19 U.S.C. \\u00a7 1677b(f)(2) (1994). The Court agrees with Commerce that the burden is on the respondent to \\\"establish that the transfer price for the purchase of raw material from the related party reflects an arms-lengthprice.\\\" Def.'s Mem. Opp'n Pl.'s Mot. Summ. J. at 26 citing NEC Home Electronics, Ltd. v. United States, 18 CIT 336 (1994). However, the Court finds that Cinsa has fulfilled its burden by supplying Commerce with an explanation of how Cinsa determined that the transfer price was representative of a fair market price and an explanation of how Cinsa determined that transfer prices were above the cost of production. Cinsa provided the information that Commerce directly requested in the questionnaire. The Court agrees with Cinsa that Commerce cannot disregard the transfer prices based on the fact that Cinsa did not furnish third party sales information. Providing Commerce with third party sales information is not the only means by which to prove arm's length transfer prices.\\nCinsa effectively shifted the burden to Commerce by providing a host of information explaining the reasons for the discount in transfer price. The Court finds that Commerce did not subsequently meet its burden in determining that the transfer price was not negotiated at arm's length. Commerce's determination in the final results is merely a conclusory statement that affords the Court no basis for ascertaining whether Commerce took into consideration Cinsa's information that provided reasons for the discount in transfer prices between the related parties.\\nIn the three previous administrative reviews, Commerce accepted Cinsa's submitted transfer prices of enamel frit based on the acceptance that the transfer price was at arm's length. In the fourth administrative review, Commerce rejected Cinsa's submitted transfer prices determining that the transfer prices were not made at arm's length. Cinsa claims that Commerce was obligated to follow the methodology it had adopted in each previous review and Cinsa claims that it provided Commerce with the same information in each of the reviews. Commerce argues that it is not bound by previous determinations and that each \\\"administrative review is a separate administrative procedure, with a separate administrative record, and a separate administrative determination which is reviewable separately by suit in this Court.\\\" Def.'s Mem. Opp'n Pl.'s Mot. Summ. J. at 31. Ironically, Commerce quickly makes the comparison that in the first administrative review Commerce \\\"verified that the frit seller charged an arm's length price.\\\" Id. citing Porcelain-on-Steel Cooking Ware from Mexico, 55 Fed. Reg. 21, 061 at 21,064 (1990). It is clear that Commerce did not verify or attempt to verify the information provided by Cinsa in the fourth administrative review as Commerce had done in the first administrative review. The Court is satisfied that Cinsa provided Commerce with the same information on related party transfer prices and Commerce failed to employ the same methodology in the fourth administrative review.\\nThe Court agrees with Commerce that each administrative review is a separate exercise of administrative procedure opening the possibility of different conclusions based on different facts accumulated. Commerce, however, cannot arbitrarily abandon a relied upon methodology. In other words, Commerce can reach different determinations in separate administrative reviews but it must employ the same methodology or give reasons for changing its practice. It is a well settled rule that an agency cannot arbitrarily change its methodology without explanation. As this Court has found:\\nWhile the Commission is not obligated to follow prior decisions if new arguments or facts are presented that support a different conclusion, this does not permit the Commission to act arbitrarily. This is because it is also a general rule that an agency must either conform itself to its prior decisions or explain the reasons for its departure. This rule is not designed to restrict an agency's consideration of the facts from one case to the next, but rather it is to insure consistency in an agency's administration of a statute.\\nCitrosuco Paulista, S.A. v. United States, 12 CIT 1196, 1209, 704 F. Supp. 1075, 1088 (1988) (citations omitted). It is apparent that Commerce applied a different methodology in the fourth administrative review without providing reasons for its departure. The Court finds that Commerce did not satisfy its burden of verifying that the transfer prices were not at arm's length and that Commerce did not provide adequate reasons for departing from its prior methodology. Therefore the finding is contrary to law and not supported by substantial evidence in the record.\\nIV Calculation of Financial Expense:\\nCommerce included both short and long-term interest expenses in its calculation of COP and used short-term interest income to offset the interest expenses. The threshold question is whether Cinsa properly presented this issue at the administrative level. Both Commerce and GHC assert that Cinsa failed to raise this issue at the administrative review and should be precluded from arguing the issue before the Court. Cinsa states that there is ample evidence on the record to support its claim that this issue was timely raised. In Cinsa's Supplemental Questionnaire Response, Cinsa stated that\\nthe ITA has requested that Cinsa report financial expenses based on the total financial expenses, including short-term and long-term expenses, whether related to the production of the merchandise under investigation or other corporate activities. The last sentence of this question requests Cinsa to exclude long-term income, which suggests that the ITA intends to treat interest income different [sic] from interest expense. Clearly, such different treatment for interest income and expense violates the fundamental precept of antidump-ing comparisons as announced by the Court of Appeals for the Federal Circuit in Smith Corona v. United States, 713 F.2d 1569, 1578 (1982) dumping calculations must be based on an \\\"apples to apples\\\" comparison.\\nPl.'s Supplemental Questionnaire Resp. at 3 (emphasis added). From this language it appears that Cinsa properly raised the issue at the administrative level. Commerce and GHC further argue that Cinsa only objected to Commerce's inclusion of long and short-term interest expenses and Cinsa did not raise the issue of offset income accounts. The response underlined above indicates that Cinsa made an issue of the different treatment by Commerce of expenses and incomes on the record and prior to Commerce's final determination. The Court finds that Cin-sa properly raised this issue at the administrative level and the issue is properly before the Court.\\nCommerce included both short and long-term interest expenses in its calculation of COP and used short-term interest income to offset the interest expenses. Cinsa earned substantially more short and long-term interest income than interest expenses it incurred during the POR, therefore, Cinsa desired to have COP calculated with both short and long-term interest income included. Cinsa claims that Commerce erred when it did not include long-term interest income in COR Cinsa asserts that Commerce should not include either long-term interest expenses or long-term interest income in an effort to make the correct and fair comparison or, in the alternative, if Commerce includes long-term interest expenses, it should also include long-term interest income as an offset, thereby making a fair comparison.\\nCommerce and GHC contest Cinsa's argument on the basis that exclusion of long-term interest income is a \\\"longstanding methodology\\\" and is a \\\"reasonable exercise of its administrative discretion.\\\" Def.'s Mem. Opp'n Pl.'s Mot. Summ. J. at 38. Further, Commerce and GHC contend that long-term interest income does not directly relate to current production cost, while payments of long and short-term interest expense are current costs that must be included in COP Cinsa claims that Commerce erred when it allowed offset of interest income only to the extent of interest expense. Cinsa bases this argument on the point that this policy ignores \\\"any financial income that exceeds the amount of the company's financial expenses, although there is no difference in the na ture of the income taken into account and that ignored.\\\" Pl.'s Reply Br. at 38.\\nCommerce argues that interest income is properly viewed as an offset to interest expense, not to COI] and can only be used to reduce total interest expense to not less than zero. The Court agrees with Commerce. Under the statute, Commerce is directed to determine COP as \\\"accurately as possible the true cost to the respondent of manufacturing the subject merchandise.\\\" Timken Co. v. United States, 18 CIT 1, 10, 852 F. Supp. 1040, 1049 (1994). Commerce is further directed to calculate the COP by including all costs of producing the subject merchandise excluding profit under 19 U.S.C. \\u00a7 1677b and 19 C.F.R. \\u00a7 353.51(c). The cost of producing the subject merchandise necessarily involves the cost of borrowed capital used in its manufacture in the form of interest expense. Without the borrowed capital, Cinsa would not be able to produce the subject merchandise. Income expense attributable to the production of the subject merchandise is properly identified as an expense and, therefore, includable in calculating COP Commerce has made it a practice to offset interest expense with interest income that was generated and attributable to the production of the subject merchandise. This is a practice that benefits the respondent by lowering the COP value, which in turn lowers the dumping margin. In the instant case, the offset effectively reduced the interest expense to zero in the calculation of COR Cin-sa claims that Commerce excluded long term interest income offsets that exceeded interest expenses that would have further lowered the COR\\nThe Court finds that expenses by their nature cannot produce a negative effect on the COR Expenses, as a component of costs, cannot become a profit by the nature of their designation. Cinsa is effectively requesting that Commerce and the Court recognize a negative cost. Based on sound accounting and economic principles, the Court declines to accept a finding of negative costs when calculating COE Interest expense, as a component of COI] is a discrete expense account and as such, cannot provide an offset to any other expense accounts. Once the interest expense account is reduced to zero through the offset of interest income, interest expense and interest income has no further effect on the calculation of COE The Court finds that once interest expense is reduced to zero, no further inquiry is necessary as Commerce cannot enter a profit into the calculation of COE The Court finds that Commerce's calculation of Cinsa's interest expense for COP is supported by substantial evidence and is otherwise in accordance with law.\\nThe Court recognizes the final decision of the binational panel concerning the fifth administrative review of Porcelain-on-Steel Cooking Ware from Mexico. The Court by statute is not bound by the final decision and is not required to consider the final decision.\\nConclusion\\nThe Court remands Commerce's finding of calculation of CV to determine whether the transfer price of enamel frit constituted an arm's length transaction as prescribed by the statute and previous practice. The Court affirms all of Commerce's other findings in the amended final results of the fourth administrative review.\\nSee Circular Welded Non-Alloy Steel Pipe From the Republic of Korea, 57 Fed. Reg. 42,942 (1992) where Commerce used revalued depreciation costs, contrasted with Stainless Steel Hollow Products from Sweden, 58 Fed. Reg. 69,332 (1993) where Commerce used historical depreciation costs.\\nThe final results state;\\nThe Department followed Mexican GAAP and adjusted CINSA's COP data to reflect the revalued depreciation. This approach coincided with CINSA's financial statements, which actually showed historical depreciation adjustments for inflation, and which wereprepared in accordance with Mexican GAAP We did, however, recalculate the amount of the adjustment to the COP to correct a clerical error in the calculation. 58 Fed. Reg. 43,327 at 43,331 (1993).\\n19 U.S.C. \\u00a7 1677b(f)(2) (1994):\\n\\\"a transaction directly or indirectly between [related parties] may be disregarded if, in the case of any element of value required to be considered, the amount representing that element does not fairly reflect the amount usually reflected in sales of merchandise under consideration in the market under consideration.\\\"\\nCommerce requested the following information from Cinsa in the questionnaire:\\nFor Constructed Value, the transfer price for transactions between the related companies may be used to value materials inputs if the transfer prices are above the cost of production. However, the transfer price must \\\"fairly reflect the amount usually reflected in sales in the market under consideration.\\\" For example, if a market exists for the identical or similar input obtained from your related supplier, the price could be compared to purchases from unrelated suppliers. Please explain how you determined that the transfer price was representative of a fair market price. Include an explanation as to how you determined that transfer prices were above the cost of production.\\nIn its questionnaire response, Cinsa stated\\nThe discount from the list price is based upon the fact that Cinsa purchases almost [ j times as much enamel as fthe related supplier] sells to all unrelated purchasers combined . there is little or no transportation or packaging expense incurred in the sale of the enamel products to Cinsa . The data contained in Exhibit 30 confirms that the transfer prices paid by Cinsa exceed [the related supplier's] cost of production.\\nPl.'s Questionnaire Resp. at 60.\\n19 U.S.C. \\u00a7 1516a(b)(3) (1994) Effect of decisions by NAFTA or United States Canada binational panels:\\nIn making a decision in any action brought under subsection (a) of this section, a court of the United States is not bound by, but may take into consideration, a final decision of a binational panel or extraordinary challenge committee convened pursuant to article 1904 of the NAFTA or of the Agreement.\"}"
\ No newline at end of file
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+"{\"id\": \"11540179\", \"name\": \"John McGLOTHLIN, Plaintiff, v. Edward MURRAY, et al., Defendants\", \"name_abbreviation\": \"McGlothlin v. Murray\", \"decision_date\": \"1999-04-30\", \"docket_number\": \"No. Civ.A. 93-0981-R\", \"first_page\": \"629\", \"last_page\": \"635\", \"citations\": \"54 F. Supp. 2d 629\", \"volume\": \"54\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States District Court for the Western District of Virginia\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:40:44.164818+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John McGLOTHLIN, Plaintiff, v. Edward MURRAY, et al., Defendants.\", \"head_matter\": \"John McGLOTHLIN, Plaintiff, v. Edward MURRAY, et al., Defendants.\\nNo. Civ.A. 93-0981-R.\\nUnited States District Court, W.D. Virginia, Roanoke Division.\\nApril 30, 1999.\\nJohn Patton McGlothlin, Bland, VA, pro se.\\nPamela Anne Sargent, Office of the Attorney General, Richmond, VA, for Edward Murray, Various John Does, Various Jane Does, Ron Angelone, Warden Thompson, Assist. Warden Hollar, Mary D. Campbell, T. Stewart, Assist. Warden Lawhorn, defendants.\\nRosalie V. Pemberton, Timberlake, Smith, Thomas & Moses, P.C., Staunton, VA, for Chaplain Roepke, defendant.\\nChaplain Roepke, Staunton, VA, defendant pro se.\", \"word_count\": \"2780\", \"char_count\": \"17579\", \"text\": \"MEMORANDUM OPINION\\nMICHAEL, Senior District Judge.\\nThis matter is before the court on remand from the Court of Appeals for the Fourth Circuit. The Fourth Circuit affirmed this court's order denying relief on the merits of Plaintiff John McGlothlin's complaint. However, the Fourth Circuit vacated this court's order granting attorneys' fees to the Defendants and remanded for application of the twelve factors identified in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974). Plaintiffs subsequent petition for certiora-ri was denied by the Supreme Court of the United States. After reviewing the twelve Johnson factors, and other concerns relevant to cases such as this one, the court finds it appropriate to reduce the amount of the attorneys' fees award to $900.\\nI.\\nPlaintiff, who was an inmate at Dillwyn Correctional Center at the time he brought this lawsuit, has proceeded pro se throughout this litigation, including all appeals. His complaint pursuant to 42 U.S.C. \\u00a7 1983 claims numerous violations of his constitutional rights, specifically his rights under the First and Fourteenth Amendments. Plaintiff alleged that prison officials and the prison chaplain discriminated against him because of his Islamic faith. After an evidentiary hearing, the United States Magistrate Judge recommended denying relief, and this court adopted that recommendation, overruling plaintiffs objections.\\nThereafter, the defendants filed motions for attorneys' fees, which were granted based on the recommendation of the Magistrate Judge. Defendants sought, and were granted, a total of $28,719.25 in attorneys' fees. The court also adopted the Magistrate Judge's recommendations to deny defendants' motions to grant Rule 11 monetary sanctions and to revoke plaintiffs in forma pauperis (IFP) status. Plaintiff never challenged the reasonableness of the amount of the costs and fees calculated by defendants. Instead, plaintiff claimed that an attorneys' fees award in any amount whatsoever would be inappropriate because his claims were not groundless.\\nII.\\nThe Fourth Circuit has adopted the twelve factors in Johnson as the guidelines to used by lower courts in determining a reasonable attorney's fee. See Trimper v. City of Norfolk, 58 F.3d 68, 73 (4th Cir.1995). The twelve Johnson factors are:\\n(1) the time and labor required to litigate the suit; (2) the novelty and difficulty of the questions presented by the lawsuit; (3) the skill required properly to perform the legal service; (4) the preclusion of other employment opportunities for the attorney due to the attorney's acceptance of the case; (5) the customary fee for such services; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount in controversy involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the \\\"undesirability\\\" of the case; (11) the nature and length of the attorney's professional relationship with the client; and (12) awards in similar cases.\\n58 F.3d at 73.\\nTwo additions should be made to this list when considering an attorney's fees award against a pro se plaintiff in a case such as this one: (1) the importance of ensuring access to the courts for plaintiffs with civil rights claims, and (2) the financial means of the plaintiff. The Trimper court noted, recalling the decision in Daly v. Hill, 790 F.2d 1071 (4th Cir.1986), that in determining a reasonable attorney's fee under 42 U.S.C. \\u00a7 1988, the court must also be guided by the underlying purpose of that section, which is \\\"to ensure effective access to the judicial process for persons with civil rights grievances without simultaneously producing windfalls to the attorneys.\\\" Trimper, 58 F.3d at 73. In addition, courts within the Fourth Circuit have also considered the plaintiffs financial position to be a relevant factor in determining a reasonable attorney's fees award against a plaintiff. See, e.g., Introcaso v. Cunningham, 857 F.2d 965, 968 (4th Cir.1988), Zaczek v. Fauquier County, 764 F.Supp. 1071 (E.D.Va.1991), aff'd by 16 F.3d 414 (4th Cir.1993).\\nAfter adding these two factors to the twelve in Johnson, the court will undertake to address each of these factors in turn.\\nFirst, the plaintiff significantly increased the time and labor required to litigate this case by his endless flood of pleadings and repeated changes in specifying the allega tions underlying his claims. The litigation began in December 1993 and has lasted to the present, with the Supreme Court handing down its decision denying certio-rari in March 1999. The defendants and their counsel labored throughout that period, including through a two-day evidentia-ry hearing in November 1996. Although the attorney for the state defendants was familiar with the plaintiff and therefore able to decipher his numerous pro se filings fairly readily, the sheer number of those filings multiplied the amount of time she had to spend reviewing and responding to documents. The Bill of Costs and Fees submitted by the attorney for the state defendants appears to this court to reasonably calculate the time and labor required to perform the essential tasks in this litigation, typically allotting five minutes to review orders, letters from plaintiff, and the like. Similarly, the attorney for the chaplain has reasonably calculated the time required to litigate this case in filing her motion for attorney's fees.\\nPlaintiffs claims did not present novel or difficult questions of law. However, plaintiffs methods of litigating, as a pro se plaintiff, and the difficulties in investigating the factual allegations he made to support his claims, forced defendants to interview witnesses and present testimony only to discover that most of those factual allegations were without any basis in reality. However, the questions presented were recognized early on as meritless by the attorney for the state defendants and were therefore fairly simple to attack. Similarly, the chaplain's clear-cut defense that he was not a state actor and therefore not liable under \\u00a7 1983 surfaced fairly early in the litigation.\\nDefendants' counsel were able to perform the legal service to their clients without a high degree of skill because plaintiffs claims eventually collapsed on their own weight. After the evidentiary hearing finally brought to light the reality behind plaintiffs claims, the Magistrate Judge noted that there was an utter lack of evidence to support plaintiffs case. Ferreting out the substance behind the smokescreen of plaintiffs flood of pleadings required relatively little skill, but an inordinate amount of time.\\nPreclusion of other employment opportunities is not a particularly relevant factor in this case. The Assistant Attorney General who represented the state defendants does not choose to handle particular cases, but is engaged on a regular basis by the state to handle whatever matters arise. This litigation diverted her time and attention from other matters she might have handled, but her employment opportunities remain constant due to her position. The chaplain proceeded pro se for most of the time-frame of this litigation. His counsel devoted a total of 38.5 hours to this case, only minimally precluding her from taking on other employment opportunities.\\nBoth counsel have calculated fees using a reasonable hourly rate that comports with the customary fee for such services. Counsel for the state defendants has been awarded fees in the past by federal and state courts at the same rate at which she calculated her fees in this case, $150.00 per hour. Counsel for the chaplain calculated her fees at a slightly lower rate of $125.00 per hour, which is also a reasonable and customary rate for work on this type of case.\\nNeither counsel calculated her fees on a contingency basis, so the sixth factor is not particularly relevant here. The seventh factor, whether there were any time limitations imposed by the client or circumstances, also does not apply in this case. The eighth factor, the amount in controversy and the result obtained, suggests comparing those two variables to arrive at a measure of the degree of success, but this comparison is meaningless unless the plaintiff is the prevailing party.\\nEach of the attorneys for defendants in this case possessed adequate experience, reputation and ability to litigate this case in a professional manner. Counsel for the state defendants is a former law clerk to the Chief Judge for the U.S. District Court for the Northern District of West Virginia, has practiced for 19 years, and specializes in civil rights cases such as this one. Counsel for the chaplain is duly licensed to practice law in the Commonwealth of Virginia, and practices with a reputable law f\\u00edirn in Staunton, Virginia.\\nUndesirability of the case, the tenth factor, also has more significance when plaintiff prevails than when defendants prevail, as in this case. Rarely, if ever, is it desirable to be the defendant in a civil rights suit. As far as state defendants are concerned, the Assistant Attorney General never considered whether or not representing her clients would be desirable; her role in this case is part and parcel of her job. Counsel for the chaplain, who made an appearance mid-way through the litigation, had the benefit of collaborating with counsel for her client's co-defendants, which probably lessened the undesirability of the representation.\\nThe eleventh factor also seems to have an awkward fit for the Assistant Attorney General who represented state defendants: the nature and length of the attorney's professional relationship with the client. The state defendants' counsel has represented these defendants and others similarly situated throughout her employment in the Attorney General's Office and has an ongoing, regular relationship with state actors as defendants. The attorney for the chaplain, on the other hand, had a very short professional relationship with her client, entering an appearance after significant work had already been accomplished in ferreting out the truth behind plaintiffs allegations.\\nThe twelfth factor poses the greatest difficulty for this court. This court has perused the case law in the Fourth Circuit, and cases out of the district courts in Virginia, and finds very few cases in which sizable attorney's fees awards were granted to defendants in \\u00a7 1983 actions brought by pro se, indigent, prison inmates such as this plaintiff. One reason for this is the Supreme Court's caution that \\\"attorney's fees should rarely be awarded\\\" against pro se inmates due to their understandable ignorance of subtle legal and factual issues. See Hughes v. Rowe, 449 U.S. 5, 15, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980). The degree to which a pro se inmate's \\u00a7 1983 action must be frivolous, unreasonable, or without foundation in order for attorney's fees to be assessed against the inmate appears to be greater than that required to award fees against other plaintiffs. See, e.g., Autry v. Woods, 86 F.3d 1148, 1996 WL 276315 (4th Cir.1996) (per curiam) (attorney's fees award upheld where inmate had previously litigated exactly the same claims against the same defendants in state court), Vester v. Murray, 878 F.2d 380, 1989 WL 68870 (4th Cir.1989) (award of attorney's fees against pro se inmate proceeding pursuant to \\u00a7 1983 was vacated because although plaintiffs case was dismissed prior to trial, that is not a sufficient basis for awarding fees when plaintiff is proceeding pro se).\\nEven in cases where the necessary degree of frivolousness or meritlessness was found, thereby warranting an attorney's fees award against a pro se prisoner plaintiff, the amount of that fee rarely reaches the magnitude sought by defendants here. See, e.g., Hughes (although ultimately vacated by the Supreme Court, the amount of attorney's fees awarded by the district court originally was only $400), Zaczek (although it would have been appropriate to award attorney's fees, district court effectively reduced amount of award to zero due to plaintiffs financial condition).\\nThe court's purpose in imposing the fee award in this case was to send a message to plaintiff that he would not be allowed to continue to bring lawsuits such as this with impunity. The backdrop of plaintiffs previous litigation experience signified a key consideration in the Magistrate Judge's determination that a fee award against plaintiff was warranted. In this case, and apparently in past actions brought by plaintiff, the legal claims brought by plaintiff appeared meritorious, alleging violations of rights which prisoners are entitled to enjoy. However, when plaintiff may have, or should have, known that the true factual circumstances underlying those claims would eventually reveal the lawsuits to have very little merit, characterizing the suits as frivolous seems fairly accurate. Frivolousness should be weighed by measuring not only the viability of the legal claims, but the ability of the facts to support those claims. The Magistrate Judge, as well as the defendants, particularly the state defendants, were understandably frustrated because of the flood of pleadings by plaintiff, not only in this case, but in several other lawsuits brought by this plaintiff. However, the court notes in retrospect that it may have placed undue emphasis on the plaintiffs litigation history in assessing fees against him in this particular case. \\\"The mere fact that a prisoner has filed a multiplicity of suits in the past is not an adequate basis for assessing fees against him.\\\" Vester, 878 F.2d 380, 1989 WL 68870 at *2.\\nAfter considering the twelve factors, to the extent they pertain to this case, the ultimate determination of a reasonable amount for attorneys' fees in this case devolves upon the court's discretion. The additional factors which this court feels it must consider after analyzing the twelve Johnson criteria suggest that the court should reduce the amount of the award in this case. First, the court is concerned that awarding attorney's fees against a pro se inmate such as this plaintiff might discourage other inmates who have viable civil rights claims from attempting to access the judicial process to remedy actual violations of their rights. See Trimper, 58 F.3d at 73. Second, the court is concerned that the prospect of this plaintiff ever actually paying the amount calculated by defendants is so remote that to assess that amount against this plaintiff would simply be folly. See Introcaso v. Cunningham, 857 F.2d 965, 968 (4th Cir.1988) (court's decision to award only ten percent of the possible assessment for attorney's fees was upheld due to plaintiffs financial position), Zaczek, 764 F.Supp. at 1080 (after finding that plaintiffs misconduct had prejudiced defendants and caused unnecessary expenses, court nonetheless found that \\\"a monetary sanction would do little to curb his conduct and is not feasible\\\" because pro se inmate plaintiff was unemployed and had few assets). Therefore, the amount of the award must reflect the reality of plaintiffs limited assets and ability to pay, while still making him realize that frivolous litigation has its costs. The court finds that awarding attorney's fees in the amount of $750 to the state defendants and $150 to the chaplain's counsel appropriately balances these concerns.\\nIII.\\nHaving reviewed the twelve Johnson factors and considering the additional concerns arising in \\u00a7 1983 eases brought pro se by inmates such as plaintiff, the court finds that a reasonable attorneys' fee in this case is $900, with $750 to be paid by plaintiff toward the attorney's fees of Pamela Anne Sargent of the Office of the Attorney General and $150 to be paid toward the attorney's fees of Rosalie Pem-berton, counsel for Chaplain Roepke. Although the calculations by counsel of their attorney's fees appear to be accurate and reasonable in amount, the liability of this plaintiff for attorney's fees has been significantly reduced out of concern that such a large fee would not have a real impact on plaintiff because its payment is so unlikely and out of concern that such a large award against a pro se prisoner would discourage inmates with viable claims from seeking access to the courts.\\nAn appropriate Order shall this day issue.\\n. For example, one of the outward manifestations plaintiff cited in his complaint to show that Christian inmates were treated more favorably than Muslim inmates was the relative size and state of the bulletin boards for the Christian and Muslim groups. What plaintiff did not reveal, but probably knew from the beginning, was that prison funds were not utilized to obtain or maintain those bulletin boards. Rather, inmates engaged in fund raising and relied on donations from persons outside the prison facility to pay for the cost of bulletin boards as well as many other services of a religious nature which were provided to inmates.\"}"
\ No newline at end of file
diff --git a/us/11687302.json b/us/11687302.json
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--- /dev/null
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+"{\"id\": \"11687302\", \"name\": \"Anthony VULPIS, Petitioner, v. UNITED STATES of America, Defendant\", \"name_abbreviation\": \"Vulpis v. United States\", \"decision_date\": \"1998-08-06\", \"docket_number\": \"No. 97 Civ. 2191(CBM); No. SSS 89 Cr. 446 (CBM)\", \"first_page\": \"751\", \"last_page\": \"752\", \"citations\": \"14 F. Supp. 2d 751\", \"volume\": \"14\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States District Court for the Southern District of New York\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T23:59:21.363931+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Anthony VULPIS, Petitioner, v. UNITED STATES of America, Defendant.\", \"head_matter\": \"Anthony VULPIS, Petitioner, v. UNITED STATES of America, Defendant.\\nNo. 97 Civ. 2191(CBM).\\nNo. SSS 89 Cr. 446 (CBM).\\nUnited States District Court, S.D. New York.\\nAug. 6, 1998.\\nJohn J. Meglio, Flushing, NY, for Petitioner.\", \"word_count\": \"553\", \"char_count\": \"3359\", \"text\": \"Memorandum Opinion Denying Certificate of Appealability\\nMOTLEY, District Judge.\\nPetitioner Anthony Vulpis (\\\"Vulpis\\\") brings the instant motion pursuant to 28 U.S.C. \\u00a7 2253. For the reasons set forth below, the application for a certificate of appealability is denied.\\nOn March 29, 1997, Vulpis moved under 28 U.S.C. \\u00a7 2255 to vacate, set aside, or correct his sentence. Title 28 U.S.C. \\u00a7 2255 provides, in relevant part, that \\\"[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . or is otherwise subject to collateral attack . may move the court which imposed the sentence to vacate, set aside or correct the sentence.\\\"\\nVulpis is currently serving a 12 year, seven month sentence which was imposed on October 3, 1990 for acts relating to his operation of an illegal garbage dumping ground. See United States v. Paccione, 751 F.Supp. 368 (S.D.N.Y.1990). This judge imposed the sentence following a 12-week trial at which a jury found Vulpis guilty of racketeering, racketeering conspiracy, and mail fraud. The Second Circuit affirmed Vulpis' conviction and sentence on appeal. See United States v. Paccione, 949 F.2d 1183 (2d Cir.1991). Vulpis also moved for a new hearing in 1991 based on alleged newly-discovered evidence that the environmental contamination at the waste site predated Vulpis' illegal use of the site. This motion was denied and the denial was summarily affirmed by the Second Circuit. See United States v. Paccione, 962 F.2d 4, Nos. 91-1669, 91-1693, 91-1694 (2d Cir. March 27, 1992); Tr. at 7. Vulpis then collaterally challenged his sentence, pursuant to 28 U.S.C. \\u00a7 2255, on three grounds:\\n1. The court allegedly used an improper offense level in the sentencing based on uncharged and unconvicted environmental offenses.\\n2. Allegedly there had been an intervening change in the law.\\n3. Allegedly Vulpis received ineffective assistance of counsel.\\nOn June 2, 1998, this court held a hearing on Vulpis' \\u00a7 2255 motion. This court denied the motion, on the record, due to Vulpis' failure to make an adequate investigation of his contention that the landfill environment was not harmed and due to want of legal support for the other two contentions. See Tr. at 11, 12, 17, 20, 21. Because of this denial, Vulpis must obtain a certificate of appealability from this court before he may appeal the denial of the \\u00a7 2255 motion to the Second Circuit. See Lozada v. U.S., 107 F.3d 1011, 1014-17 (2d Cir.1997), overruled on other grounds by U.S. v. Perez, 129 F.3d 255 (2d Cir.1997).\\nThis court now determines that the petitioner has failed to make the requisite \\\"substantial showing of the denial of a constitutional right\\\" and, therefore, declines to issue a certificate of appealability. 28 U.S.C. \\u00a7 2253(c)(2) (\\\"A certificate of appealability may issue . only if the applicant has made a substantial showing of the denial of a constitutional right.\\\").\\n. \\\"Tr.\\\" refers to the transcript of the oral argument of the \\u00a7 2255 motion on June 2, 1998.\"}"
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diff --git a/us/11709216.json b/us/11709216.json
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index 0000000000000000000000000000000000000000..6a2650034d60cdc62c3f355b44e27a6738b288b6
--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"11709216\", \"name\": \"Cisneros v. Reno, Attorney General\", \"name_abbreviation\": \"Cisneros v. Reno\", \"decision_date\": \"1996-12-02\", \"docket_number\": \"No. 96-596\", \"first_page\": \"1011\", \"last_page\": \"1011\", \"citations\": \"519 U.S. 1011\", \"volume\": \"519\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T21:18:09.710801+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Cisneros v. Reno, Attorney General.\", \"head_matter\": \"No. 96-596.\\nCisneros v. Reno, Attorney General.\", \"word_count\": \"13\", \"char_count\": \"81\", \"text\": \"C. A. 2d Cir. Certiorari denied.\"}"
\ No newline at end of file
diff --git a/us/11754047.json b/us/11754047.json
new file mode 100644
index 0000000000000000000000000000000000000000..3177a4269b9f827cc5f5eb63a45d302bc134a2fd
--- /dev/null
+++ b/us/11754047.json
@@ -0,0 +1 @@
+"{\"id\": \"11754047\", \"name\": \"Mouton v. United States\", \"name_abbreviation\": \"Mouton v. United States\", \"decision_date\": \"1980-10-06\", \"docket_number\": \"No. 79-6763\", \"first_page\": \"860\", \"last_page\": \"860\", \"citations\": \"449 U.S. 860\", \"volume\": \"449\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T21:59:00.276185+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mouton v. United States.\", \"head_matter\": \"No. 79-6763.\\nMouton v. United States.\", \"word_count\": \"12\", \"char_count\": \"72\", \"text\": \"C. A. 9th Cir. Certiorari denied.\"}"
\ No newline at end of file
diff --git a/us/11806938.json b/us/11806938.json
new file mode 100644
index 0000000000000000000000000000000000000000..858683c1e68cecd4be968490bd508112c657711c
--- /dev/null
+++ b/us/11806938.json
@@ -0,0 +1 @@
+"{\"id\": \"11806938\", \"name\": \"Al-Wahhab v. Virginia et al. (two judgments)\", \"name_abbreviation\": \"Al-Wahhab v. Virginia\", \"decision_date\": \"1996-04-29\", \"docket_number\": \"No. 95-8116\", \"first_page\": \"1172\", \"last_page\": \"1172\", \"citations\": \"517 U.S. 1172\", \"volume\": \"517\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T22:03:15.372879+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Al-Wahhab v. Virginia et al. (two judgments).\", \"head_matter\": \"No. 95-8116.\\nAl-Wahhab v. Virginia et al. (two judgments).\", \"word_count\": \"15\", \"char_count\": \"93\", \"text\": \"C. A. 4th Cir. Certiorari denied.\"}"
\ No newline at end of file
diff --git a/us/12117193.json b/us/12117193.json
new file mode 100644
index 0000000000000000000000000000000000000000..342e2b5d51a361ced76963c48db2e6456f8f962e
--- /dev/null
+++ b/us/12117193.json
@@ -0,0 +1 @@
+"{\"id\": \"12117193\", \"name\": \"UNITED STATES v. SMITH et al.\", \"name_abbreviation\": \"United States v. Smith\", \"decision_date\": \"1819-10\", \"docket_number\": \"\", \"first_page\": \"1247\", \"last_page\": \"1249\", \"citations\": \"27 F. Cas. 1247\", \"volume\": \"27\", \"reporter\": \"Federal Cases\", \"court\": \"United States Circuit Court for the Eastern District of Pennsylvania\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:00:54.318055+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"UNITED STATES v. SMITH et al.\", \"head_matter\": \"Case No. 16,345.\\nUNITED STATES v. SMITH et al.\\n[3 Wash. C. C. 525.]\\nCircuit Court, E. D. Pennsylvania.\\nOct Term, 1819.\\nSeamen\\u2014 Correction bt Master\\u2014Right of Resistance\\u2014Confinement of Master\\u2014Revolt.\\n1. The master of a vessel has an absolute authority on board the vessel under his command, and his lawful orders must b\\u00e9 obeyed. He may inflict moderate correction for disobedience, and impertinent language or behaviour. The seaman may endeavour to escape from it; and if he is pursued, and is otherwise exposed to a repetition of such treatment, he may resist for the mere purpose of protecting himself trom injury.\\n[Cited in Fuller v, Colby, Case No. 5,149.]\\n[Cited in Buddington v. Smith, 13 Conn. 33(5; Thompson v. Hermann, 47 Wis. (507, 3 N. W. 579.]\\n2. If the master use an unlawful weapon, or the seaman is exposed to danger of his life, or limbs, he may resort to any necessary species of defence to avoid this danger.\\n[Cited in Fuller v. Colby, Case No. 5,149.]\\n3. If the master strikes the seaman, and is seized by him, and' is so firmly held, as that he cannot extricate himself, the seaman is guilty of confining the captain.\\n4. Quere, what is making a revolt on board a ship?\\nIndictment [against Smith and Coombs], The first count was for confining the captain. 2. For endeavouring to malte a revolt.\\n[Originally published from the MSS. of Hon. Bushrod Washington, Associate Justice of the Supreme Court of the United States, under the supervision of Richard Peters, Jr., Esq.]\", \"word_count\": \"1249\", \"char_count\": \"7069\", \"text\": \"WASHINGTON, Circuit Justice\\n(charging Jury). As something has been said, by the counsel on each side, respecting the authority of the master of a vessel to correct his seamen, and the duty of submission by the latter, it may not, perhaps, be time misemployed, to make some observations upon these subjects, although not necessarily involved in the questions which arise under the present prosecution. The master has an absolute authority on board of his ship; and his orders, .if not unlawful, are, and must be, imperative. Submission is amongst the first duties of the seamen; and their deportment to the master ought to be respectful. He is justified in inflicting moderate correction on the mariners, for disobedience of orders, and for impertinent language and behaviour. Although it would be, in general, more dignified and more prudent, to avoid inflicting personal chastisement on a seaman for offensive language, yet the law does not condemn him for doing so; it is an indulgence to human infirmity, rather than a justification. The seaman, in such a predicament, may endeavour to escape from it; and if pursued, or if he is otherwise exposed to a repetition of such treatment, he may lawfully resist, in such manner as to protect himself against injury. If the master make use of an unlawful weapon, or the seaman is otherwise exposed to apparent danger of life or limb, he may lawfully resort to any species of defence necessary to avert the danger. In the case of U. S. v. Sharp [Case No. 16,264], this doctrine was fully explained.\\nHaving made these general observations, we proceed to the consideration of the first count in the indictment; which is, for confining the master. The evidence on the part of the prosecution is, that after the master had struck at Smith, with a rope of dangerous size, which Smith laid hold of in order to escape the blow, the master struck him with his fist, which Smith returned; and having seized each other, they fell on the deck; and the master, having the ascendency, placed his knee on the breast of Smith; and, in that situation, mutual blows were exchanged, (Smith having hold of the master's collar,) until Boyd, another of the seamen, desired the master not to strike Smith again; upon which he quitted Smith, and ordered all the seamen, who, to the number of eight or ten, had come aft on the quarter deck, to go forward. The witnesses further prove, that, whilst Smith was down, he called to his comrades more than once, and asked if they would see him so treated; that they were ordered by the master to go forward, which they refused to do, until the master had called for his cutlass, and was in a situation to enforce his order. The defendants' witnesses deny that Smith struck the master, or laid hold of him, so as to confine him; some of them deny, also, that Smith called for the aid of his comrades, or that they were ordered by the master to go forward, until he had risen from the deck and called for his cutlass; when they obeyed.\\nUpon .this evidence, it is for you to say, whether the captain was at any time confined by Smith. That Smith, after he was seized by the master, and until he was released, was himself confined, is certain. Nevertheless, if the captain's situation was forced upon him by Smith, if he was so firmly held by Smith that he could not extricate himself, then the defendant is guilty under this count;, because, it has repeatedly been decided in this court, that if the master be placed under re-' straint by his seamen, or by any one of them, for any space of time, however short, whether it be by manual force, or by menace and intimidation, this is, in construction of law, a confinement U. S. v. Sharp [supra]; U. S. v. Bladen [Case No. 14,606]; U. S. v. Smith [Id. 16,337]. If, on the other hand, the master was not so restrained, the insolence of Smith, his return of the captain's blows, however culpable such conduct would render him, and his resistance of the blows he received, would not amount to this offence. One of the witnesses stated, that he and the captain thought it prudent, for some nights after this affray, to keep watch in the cabin, and to be armed. If this was so, and you should be of opinion, that the conduct of the defendants and their associates rendered that measure prudent; and if also, the captain, in consequence of any threatened danger from the seamen, was prevented from the free exercise of all his privileges in every part of the ship, then these circumstances would amount to a constructive confinement; otherwise not. But unless this, in your opinion, was the fact; there is no evidence whatever to convict Coombs upon this count, as he had no personal conflict with the master, which can be construed into a confinement of him.\\nAs to the other count, for endeavouring to make a revolt: What constitutes a revolt, has never been decided by this court. On the contrary, we have always recommended it to the jury, to acquit the accused on counts for making, or endeavouring to make, a revolt. But a most respectable and learned judge of the supreme court (U. S. v. Smith [supra]) has defined it to be an endeavour to excite the crew to overthrow the lawful authority of the master and officers of the ship. Wishing to have this point decided by the supreme court, we shall request the jury, in case they should be of opinion that the defendants are guilty of endeavouring to make a revolt, according to this definition, to find them guilty, subject to the opinion of the court upon the facts of the case.\\nThe jury found the defendants not guilty.\"}"
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diff --git a/us/121228.json b/us/121228.json
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+"{\"id\": \"121228\", \"name\": \"William Nay WOOD, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee\", \"name_abbreviation\": \"Wood v. Crouse\", \"decision_date\": \"1964-01-31\", \"docket_number\": \"No. 7500\", \"first_page\": \"81\", \"last_page\": \"81\", \"citations\": \"327 F.2d 81\", \"volume\": \"327\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the Tenth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:06:00.231996+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William Nay WOOD, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.\", \"head_matter\": \"William Nay WOOD, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.\\nNo. 7500.\\nUnited States Court of Appeals Tenth Circuit.\\nJan. 31, 1964.\\nArthur W. Burke, Jr., Denver, Colo., for appellant.\\nArthur E. Palmer, Asst. Atty. Gen., Topeka, Kan. (William M. Ferguson, Atty. Gen., of Kansas, and Park McGee, Asst. Atty. Gen., Topeka, Kan., on the brief), for appellee.\\nBefore PICKETT and LEWIS, Circuit Judges, and KERR, District Judge.\", \"word_count\": \"213\", \"char_count\": \"1291\", \"text\": \"PER CURIAM.\\nThis is a habeas corpus proceeding in which petitioner, Wood, challenges the validity of five sentences for 30 years each which he is now serving in the Kansas State Penitentiary. The petitioner appeals from an order discharging the writ remanding him to the custody of the respondent warden.\\nWood is also serving, concurrently with the 30 year sentences, another, separate and as yet uncompleted sentence of not less than 10 years. The validity of this sentence is not questioned.\\nIt is well settled that habeas, corpus will not lie when the prisoner will not be entitled to immediate release if there is a determination in his favor in the proceeding. Crawford v. Taylor, 10 Cir., 290 F.2d 197; McGann v. Taylor, 10 Cir., 289 F.2d 820, cert. denied 368. U.S. 904, 82 S.Ct. 182, 7 L.Ed.2d 98.\\nAffirmed.\"}"
\ No newline at end of file
diff --git a/us/12151546.json b/us/12151546.json
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+"{\"id\": \"12151546\", \"name\": \"Saturley v. United States\", \"name_abbreviation\": \"Saturley v. United States\", \"decision_date\": \"1990-06-11\", \"docket_number\": \"No. 89-7408\", \"first_page\": \"930\", \"last_page\": \"930\", \"citations\": \"496 U.S. 930\", \"volume\": \"496\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:38:01.207338+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Saturley v. United States.\", \"head_matter\": \"No. 89-7408.\\nSaturley v. United States.\", \"word_count\": \"12\", \"char_count\": \"74\", \"text\": \"C. A. 9th Cir. Certiorari denied.\"}"
\ No newline at end of file
diff --git a/us/12175693.json b/us/12175693.json
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--- /dev/null
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+"{\"id\": \"12175693\", \"name\": \"Raul Rivas RODRIGUEZ, a/k/a Raul Rivas, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent\", \"name_abbreviation\": \"Rodriguez v. Attorney General United States\", \"decision_date\": \"2016-12-19\", \"docket_number\": \"No. 16-1354\", \"first_page\": \"392\", \"last_page\": \"400\", \"citations\": \"844 F.3d 392\", \"volume\": \"844\", \"reporter\": \"Federal Reporter 3d Series\", \"court\": \"United States Court of Appeals for the Third Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T19:36:03.443182+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: AMBRO, SHWARTZ, FUENTES, Circuit Judges.\", \"parties\": \"Raul Rivas RODRIGUEZ, a/k/a Raul Rivas, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent\", \"head_matter\": \"Raul Rivas RODRIGUEZ, a/k/a Raul Rivas, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent\\nNo. 16-1354\\nUnited States Court of Appeals, Third Circuit.\\nSubmitted Under Third Circuit LAR 34.1(a) November 18, 2016\\n(Opinion Filed: December 19, 2016)\\nFabian Lima, Esq., 1500 Walnut Street, Suite 206, Philadelphia, PA 19102, Counsel for Petitioner\\nJur\\u00eda L. Jones, Esq., Holly :M. Smith, Esq., United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent\\nBefore: AMBRO, SHWARTZ, FUENTES, Circuit Judges.\", \"word_count\": \"3213\", \"char_count\": \"19918\", \"text\": \"OPINION\\nSHWARTZ, Circuit Judge.\\n- Raul Rivas- Rodriguez (\\\"Rivas\\\") petitions for review of the decision of the Board of Immigration Appeals (\\\"BIA\\\") dismissing his appeal from an order of the Immigra tion Judge (\\\"IJ\\\") denying his motion to terminate removal proceedings and ordering him removed to the Dominican Republic. Because the conviction that served as a basis for his removal has been vacated, and the Notice of Removal did not specify his participation in a deferred adjudication program as a basis for removal, we will grant the petition. .,\\nI\\nRivas, a native and citizen of the Dominican Republic, was admitted to the United States as a legal permanent resident when he was two years old. In September 2013, following a bench trial in. the Philadelphia Municipal Court, he was convicted of the purchase, receipt, and intentional possession of phencyclidine (\\\"PCP\\\"), and was sentenced to eighteen months' probation.\\nFollowing these convictions, the United States Department of Homeland Security initiated removal proceedings against Rivas and served him with a \\\"Notice to Appear.\\\" A.R. 569-71. The Notice stated that he was subject to removal pursuant to 8 U.S.C. \\u00a7 1227(a)(2)(B)(i) for having been convicted of two state law violations relating to a controlled substance.\\nPrior to his immigration hearing and after receiving this notice, Rivas petitioned the Municipal Court for relief from his convictions under the Pennsylvania Post Conviction Relief Act (\\\"PCRA\\\"). He argued that he received ineffective assistance of counsel because his trial counsel failed to advise him of the possible immigration consequences arising from his conviction and for advising him not to appeal the trial verdict. During the three-day PCRA hearing, Rivas's trial counsel testified that he advised Rivas of the immigration consequences flowing from a conviction and that he could not recall the advice he gave regarding an appeal but \\\"probably would have advised [Rivas] that . it is still no.t a winnable case..., \\\" A.R. 149. After the hearings, and at the request of the Commonwealth, the Municipal Court denied the PCRA petition and then, by agreement of the parties, vacated the guilty verdicts and placed Rivas on pretrial probation for three years as part of a deferred adjudication agreement. Included in the order vacating the judgment were conditions requiring Rivas to: (1) \\\"stipulate to all of the Commonwealth's evidence in the underlying trial\\\"; (2) reside in Pennsylvania; (3) report to court; (4) participate, if necessary, in employment training as well as drug testing and treatment; and (5) \\\"\\u00bfgfee that any violation of any of these conditions will result in a Negotiated Stipulated Trial.\\\" A.R. 120. The Commonwealth agreed to withdraw the charges if Rivas successfully completed his pretrial probation.\\nRivas thereafter filed a motion to terminate his removal proceedings on the ground that his convictions, which constituted the basis for his potential removal, had been vacated. His motion also averred that \\\"[t]he sentences have not been vacated solely to avoid the immigration consequences of his conviction.\\\" A.R.' 128. The IJ denied Rivas's motion arid ordered him removed to the Dominican Republic. The IJ found that since Rivas's trial counsel testified at the PCRA hearings that he did advise Rivas of the immigration consequences of an adverse judgment, and since the Municipal Court denied the PCRA petition, the. IJ was \\\"convinced that the primary and probably the only reason for the conviction vacatur was to permit the respondent to avoid the [i]mmigration consequences of his drug conviction.\\\" App. I 9-10.\\nThe BIA agreed-, finding that the Municipal Court vacated Rivas's convic tions to allow him to avoid their immigration consequences. The BIA also found that even if Rivas's convictions had been vacated on substantive -grounds, the terms of the order vacating the convictions still amounted to a \\\"conviction\\\" under the Immigration and Nationality Act (\\\"INA\\\"). Specifically, the BIA found that since Rivas stipulated to all of the state's evidence against him as part of the agreement vacating his convictions, and since his liberty was restrained under the resulting probation program, he remained \\\"convicted\\\" under immigration law and was removable. Consequently, the BIA affirmed the IJ's denial of Rivas's motion to terminate on two independent grounds. Rivas petitions for review.\\nII\\nSection 1227(a)(2)(B)(i) of the INA provides that \\\"[a]ny alien who at any time after admission has been convicted of a violation of . any law or regulation of a State . relating to a controlled substance . is deportable.\\\" The issue here is whether the disposition of Rivas's state court criminal proceedings render him \\\"convicted\\\" for . purposes of the INA.\\nA\\nA petitioner whose criminal conviction was vacated is no longer \\\"convicted\\\" under the INA where the conviction was vacated on the basis of a substantive or procedural defect in the underlying criminal proceedings. In re Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003), rev'd on other grounds, 466 F.3d 263 (6th Cir. 2006). Conversely, where \\\"a court vacates a conviction for reasons unrelated to the merits of the underlying criminal proceedings,\\\" such as for rehabilitation or to allow a petitioner to avoid the immigration effects of the conviction, then the petitioner \\\"remains 'convicted' for immigration purposes.\\\" Id.; see also Cruz v. Att'y Gen., 452 F.3d 240, 242 (3d Cir. 2006) (concluding that Pickering provides a reasonable interpretation of \\u00a7 1227(a)(2)(B)()i); Pinho v. Gonzales, 432 F.3d 193, 208-10 (3d Cir. 2005) (same). A petitioner who seeks relief from removal bears the burden of proving that his conviction was vacated. 8 C.F.R. \\u00a7 1240.8(d); Syblis v. Att'y Gen., 763 F.3d 348, 352 (3d Cir. 2014).\\nRivas filed a motion for post-conviction relief based on alleged ineffective assistance of trial counsel. After three days of hearings, which included testimony -from trial counsel, the Commonwealth agreed to a settlement pursuant to which Rivas's convictions were vacated. Although- Rivas demonstrated that his convictions were vacated, the IJ and BIA concluded that Rivas failed to show they were vacated within the meaning of the immigration laws.\\nTo determine whether a vacated conviction is nonetheless a conviction for immigration purposes, the IJ must examine the state court record to identify the reasons why the state court vacated the conviction. Pinho, 432 F.3d at 215. To complete this task, the IJ \\\"must look first to the order [that vacated the conviction]. If the order explains the court's reasons for vacating the conviction, the [IJ] 's inquiry must end there. If the order does not give a clear statement of reasons, the [IJ] may look to the record before the court when the order was issued. No other evidence of reasons may be considered.\\\" Id. Thus, the IJ may rely only on reasons explicitly stated in the record and may not impute an unexpressed motive for vacating a conviction. See id.; Cruz, 452 F.3d at 244, 248 (holding that the BIA could reasonably determine that a conviction was vacated to allow a petitioner to avoid immigration consequences where a state prosecutor's letter stipulating the terms of a settlement agreement explicitly stated that the petitioner's scheduled deportation was a reason for the state's support for vacating the conviction). Put simply, \\\"[w]e will not . permit[ ] . speculation . about the secret motives of state judges and prosecutors.\\\" Pinho, 432 F.3d at 214-15.\\nHere, both the IJ and the BIA opined that the state court likely vacated Rivas's convictions to allow him to avoid the convictions's immigration consequences. To support this conclusion, the IJ relied on the facts that Rivas's trial counsel testified at the PCRA hearings that he did advise his client of the immigration consequences of a potential conviction, and that the state court denied Rivas's PCRA petition. However, these facts do not show that the state court vacated the convictions to allow Rivas to avoid their immigration consequences. Moreover, though trial counsel's testimony might have weakened Rivas's ineffective-assistance-of-counsel claim, the record fails to show that his counsel's alleged ineffectiveness was not the reason the convictions were vacated. We know only that the application to vacate was based on two ineffective-assistance-of-counsel claims stemming from the alleged failure of Rivas' counsel to advise him of the immigration consequences of his convictions -and advice to forgo appealing his convictions, and that the convictions were in fact vacated. See Pinho, 432 F.3d at 211-13 (holding that where the record shows that the state did not answer a pending ineffective-assistance-of-counsel claim before agreeing to settlement, this supports the conclusion that the settlement was reached as a result of the constitutional claim). In addition, the IJ did not point to any evidence undermining the conclusion that the Commonwealth settled because of Rivas's pending ineffectiveness claim with respect to his trial counsel's failure to advise him to appeal the convictions. In fact, the IJ repeatedly asserted that the state court record was not clear as to the reasons why the prosecutor agreed to settle Rivas's claim and why the court vacated his' convictions. Moreover, the BIA failed to conf\\u00edne itself to the factual record. Beyond adopting the IJ's findings, it also quoted the following passage wherein the state court addressed Rivas and discussed the vacatur of his convictions:\\n[B]ecause you know the consequences of what would have happened with the conviction that you had\\u2014 Everybody understands it, what would have happened over a possession conviction for POP. You have been given an incredible opportunity here, and I think it's the right opportunity, and I think it's the right result, but you need to understand, it is that opportunity. And if there [are] temptations, go the other way, criminal activity, drug use, anything, there's no margin for error. If you want to be here with your family and you want to move forward in your life and do things, then you need to understand that.\\nApp. I 5 (alterations, other than the ellipses, in original). The BIA found that these statements showed that the court vacated Rivas's convictions to allow him to avoid the resultant immigration consequences. In reaching this finding, however, it speculated as to the unexpressed motives of the state court\\u2014an analysis which we barred in Pinho. 432 F.3d at 215. It is not plain in the above passage that the consequences of convictions to which the court refers are immigration consequences, as opposed to penal consequences flowing from a conviction. Moreover, even if the passage addresses the immigration consequences of the convictions, it does not indicate the reasons why the court vacated the convictions and does not show that the court vacated the convictions because of those consequences. Thus, like .the IJ, the BIA erred in failing to restrict itself to the factual record and impermissibly speculated about the \\\"secret motives of state judges and prosecutors.\\\" Pinho, 432 F.3d at 215.\\nIn sum, Rivas met his burden to show that his convictions were vacated for purposes of the immigration laws, and the record does not show that Rivas's convictions were vacated to avoid their immigration consequences.\\nB\\nThe BIA also found-that even if Rivas's convictions had been vacated on substantive grounds, he nonetheless stood \\\"convicted\\\" for purposes of the immigration laws under the terms of the deferred adjudication agreement. Specifically, it found that since the state court's order vacating Rivas's convictions was conditioned on his stipulating to all of the state's evidence against him for the underlying convictions, and since the order imposed conditions that restricted Rivas's liberty, he stood \\\"convicted\\\" for purposes of the INA. See 8 U.S.C. \\u00a7 1101(a)(48)(A) (stating that a petitioner is \\\"convicted\\\" under the INA if he has \\\"admitted sufficient facts to warrant a finding of guilt\\\" and \\\"the judge has ordered some form of.punishment, penalty, or restraint on the alien's liberty-to be imposed\\\"). We need not decide whether the deferred adjudication agreement could render Rivas \\\"convicted\\\" under the INA since basing Rivas's removal on his deferred adjudication would violate his due process rights.\\n\\\"It is well established, that if an alien is a lawful permanent resident of the United States and remains physically present thereHe may not be deprived of his life, liberty or property without due process of law.\\\" Kwong Hai Chew v. Colding, 344 U.S. 590, 596, 73 S.Ct. 472, 97 L.Ed. 576 (1953). Essential to the due process rights of a noncitizen permanent resident is that \\\"before his expulsion[,] he is entitled to notice of the nature of the charge and a hearing at least before an executive or administrative tribunal.\\\" Id. at 597, 73 S.Ct. 472; see also United States v. Torres, 383 F.3d 92, 104 (3d Cir. 2004) (citing Kwong Hai Chew and reiterating that an alien in removal proceedings has a due process- right to, among other things, \\\"notice of the charges against him\\\").\\nThe INA sets forth the notice that must be given to an alien before removal proceedings can commence:\\nIn removal proceedings under section 1229a of this title, written notice . shall be given in person to the alien . specifying the following:\\n(A) The nature of the proceedings against the alien.\\n(B) The legal authority under which the proceedings are conducted.\\n(C) The acts or conduct alleged to be in violation of law.\\n(D) The charges against the alien and the statutory provisions alleged to have been violated.\\n8 U.S.C. \\u00a7 1229(a)(1); see Choeum v. I.N.S., 129 F.3d 29, 38-39 (1st Cir. 1997) (holding that the due process right to notice owed to a noncitizen permanent resident charged with removability is coextensive with the notice required by \\u00a7 1229(a)(1)).\\nThe only Notice to Appear that DHS served upon Rivas specified that he was charged with removability on the basis of two factual predicates: First, \\\"[y]ou were, on September 26, 2013, convicted in the Municipal Court at Philadelphia for the offense of [i]ntentional possession of a controlled substance by person not registered, to wit PCP, in violation of Pa. C.S.A Title 35 Section 780-113 subsection A16,\\\" A.R. 571. Second, \\\"[y]ou were, on September 26, 2013, convicted in the Municipal Court at Philadelphia for the offense of. [p]urchase/receipt of controlled substance by unauthorized person, to wit: PCP, in violation of Pa. C.S.A Title 35 Section 780-113 subsection A19.\\\" A.R. 571. The Government never lodged additional immigration charges against Rivas. See 8 C.F.R, \\u00a7 1240.10(e) (\\\"At any time during the proceeding, additional or substituted charges of inadmissibility and/or deportability and/or factual allegations may be lodged by the Service in writing.\\\"). As a result, Rivas never received notice charging him as removable on the basis of the terms of the 2015 deferred adjudication agreement, entered almost two years after the convictions identified in the Notice to Appear.\\nConsequently, the BIA's finding that Rivas's motion to terminate removal proceedings could be denied based on the deferred adjudication contravenes \\u00a7 1229(a)(1)(c)'s requirement that the alien be given notice of \\\"[t]he acts or conduct alleged to be in violation of law.\\\" To remove Rivas on the basis of a deferred adjudication in 2015 would base his removal on an entirely different factual ground from that set forth in the Notice to Appear and would violate Rivas's due process rights to notice of the bases for his removal.\\nIll\\nFor the foregoing reasons, we will grant Rivas's petition for review.\\n. The IJ had jurisdiction under 8 C.F.R. \\u00a7 1240.1(a), and the BIA had jurisdiction pursuant to 8 C.F.R. \\u00a7 1003.1(b)(3). Although we generally lack jurisdiction \\\"to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in [\\u00a7 1227(a)(2)(B) ],\\\" we have jurisdiction to review an order of removal to the extent it raises \\\"constitutional claims or questions of law.'' 8 U.S.C. \\u00a7 1252(a)(2)(C)-(D). Consequently, we have jurisdiction to determine \\\"whether, as a matter of law, the disposition of [Rivas's] Pennsylvania criminal charge constitutes a 'conviction' for immigration purposes.\\\" Frias-Camilo v. Att'y Gen., 826 F.3d 699, 702 n.4 (3d Cir. 2016) (citation omitted). Since the BIA's opinion is the \\\"final order,\\\" this Court's review is typically confined to the BIA's opinion. Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). Where, as here, the BIA expressly adopts the IJ's opinion, this Court also reviews that opinion to the extent the BIA adopted it. Sandie v. Att'y Gen., 562 F.3d 246, 250 (3d Cir. 2009).\\n. The INA defines \\\"conviction\\\" as follows:\\n(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and\\n(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed,\\n8 U.S.C. \\u00a7 1101(a)(48)(A).\\n. Contrary to the Government's argument, Rumierz v. Gonzales, 456 F.3d 31 (1st Cir. 2006), does not apply to Rivas's vacatur. There, because the petitioner's motion for post-conviction relief did not specify any substantive reasons to vacate his conviction, the court held that the petitioner could not show that his conviction was vacated on substantive grounds where it was vacated pursuant to an agreement and the record was otherwise silent as to the reason for the vacatur. Id In contrast, Rivas's motion for post-conviction relief did specify substantive grounds upon which he challenged his convictions, and so Rumierz is.inapplicable.\\n. Rivas argues that the DHS waived its right to rely on the deferred adjudication as a basis for removal. Although he casts this argument in terms of waiver, the real complaint is that he did not receive notice that he might be removed on this ground. Because his brief repeatedly states that the Notice to Appear charged him as removable on the basis of the Pennsylvania convictions and that by holding him removable on the basis of the deferred adjudication agreement the BIA \\\"created an .entirely new reason for upholding the IJ's decision,\\\" he has in essence asserted that his due process - rights were violated. Petitioner Br. at 3.\\n. If the immigration authorities wish to pursue Rivas's removal based on an assertion that he stands \\\"convicted\\\" of a controlled substance offense as a result of the terms of his deferred adjudication, then they can initiate removal proceedings anew by serving notice to Rivas stating the grounds upon which he is charged with removability. Duhaney v. Att'y Gen., 621 F.3d 340, 349 (3d Cir. 2010) (\\\"Although there are common elements of fact between the two removal proceedings, the critical acts and the necessary documentation were different.... Accordingly, we hold that the doctrine of res judicata did not bar the Government from lodging additional charges of removability after Duhaney s 2000 conviction was vacated.\\\"). Nothing herein constitutes a view as to whether such proceedings should be commenced or would succeed.\"}"
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+"{\"id\": \"12273508\", \"name\": \"HIGHLAND CDO OPPORTUNITY MASTER FUND, L.P., Plaintiff, v. CITIBANK, N.A., Citigroup Global Markets Inc., Citigroup Global Markets Limited, and Citigroup Financial Products Inc., Defendants; Citibank, N.A., Citigroup Global Markets Inc., Citigroup Global Markets Limited, and Citigroup Financial Products Inc., Counterclaim Plaintiffs, v. Highland CDO Opportunity Master Fund, L.P., Counterclaim Defendant, and Highland CDO Opportunity Fund GP, L.P., and Highland Capital Management, L.P., Additional Defendants to Counterclaim\", \"name_abbreviation\": \"Highland CDO Opportunity Master Fund, L.P. v. Citibank, N.A.\", \"decision_date\": \"2017-09-01\", \"docket_number\": \"12 Civ. 2827(NRB)\", \"first_page\": \"716\", \"last_page\": \"735\", \"citations\": \"270 F. Supp. 3d 716\", \"volume\": \"270\", \"reporter\": \"Federal Supplement 3d\", \"court\": \"United States District Court for the Southern District of New York\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:41:04.419799+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HIGHLAND CDO OPPORTUNITY MASTER FUND, L.P., Plaintiff, v. CITIBANK, N.A., Citigroup Global Markets Inc., Citigroup Global Markets Limited, and Citigroup Financial Products Inc., Defendants. Citibank, N.A., Citigroup Global Markets Inc., Citigroup Global Markets Limited, and Citigroup Financial Products Inc., Counterclaim Plaintiffs, v. Highland CDO Opportunity Master Fund, L.P., Counterclaim Defendant, and Highland CDO Opportunity Fund GP, L.P., and Highland Capital Management, L.P., Additional Defendants to Counterclaim.\", \"head_matter\": \"HIGHLAND CDO OPPORTUNITY MASTER FUND, L.P., Plaintiff, v. CITIBANK, N.A., Citigroup Global Markets Inc., Citigroup Global Markets Limited, and Citigroup Financial Products Inc., Defendants. Citibank, N.A., Citigroup Global Markets Inc., Citigroup Global Markets Limited, and Citigroup Financial Products Inc., Counterclaim Plaintiffs, v. Highland CDO Opportunity Master Fund, L.P., Counterclaim Defendant, and Highland CDO Opportunity Fund GP, L.P., and Highland Capital Management, L.P., Additional Defendants to Counterclaim.\\n12 Civ. 2827(NRB)\\nUnited States District Court, S.D. New York.\\nSigned August 31, 2017\\nFiled 09/01/2017\\nJeffrey T. Prudhomme, Katy Sheppard, Kennedy L. Barnes, Kenneth Neil Hickox, Kristen A.. Miller Reinsch, Michael P. Ai-gen, Paul B. Lackey, Ross Anthony Mortil-laro, Scott Hershman, Lackey Hershman, LLP, Dallas, TX, Kieran M. Corcoran, Lackey Hershman, LLP, New York, NY, for Plaintiff.\\nMarshall Howard Fishman, Goo\\u2019dwin Procter, LLP, Elizabeth M. Zito, Robert John McCallum, Freshf\\u00edelds Bruckhaus Deringer LLP, New York, NY, for Defendants.\", \"word_count\": \"9744\", \"char_count\": \"58690\", \"text\": \"MEMORANDUM AND ORDER\\nNAOMI REICE BUCHWALD, UNITED STATES DISTRICT JUDGE\\nBefore the Court are cross-motions for summary judgment on counterclaim plaintiff Citi's counterclaims and veil piercing claims. Citi seeks to hold counterclaim defendant Highland CDO Opportunity Master Fund, L.P. (\\\"CDO Fund\\\") liable for a $24 million deficit and for indemnif\\u00ed-cation in connection with certain credit default swap agreements. Citi also seeks to hold counterclaim defendants Highland Capital Management, L.P. (\\\"HCM\\\") and Highland CDO Opportunity Fund GP, L.P. (\\\"Highland GP,\\\" and together with CDO Fund and HCM, \\\"Highland\\\") jointly and severally liable for any judgment awarded against CDO Fund under various . veil piercingtheories.\\nFor the reasons stated below.we (1) grant Citi's motion seeking to hold CDO Fund liable on Citi's counterclaims; (2) deny Citi's motion seeking to hold HCM jointly and severally liable with CDO Fund; and (3) grant Highland's motion to dismiss HCM.\\nBACKGROUND\\nI. Overview\\nThis lawsuit arises out of a margin call issued by Citi in December 2008 in connection with certain credit default swap transactions entered into between CDO Fund and Citi. See M & O (ECF No. 150) at 2, 6-8, 28-31. After CDO Fund failed to meet the December 2008 margin call, Citi declared an event of default and seized certain assets that CDO Fund had posted to collateralize the credit default swaps. Id. at 12-22. Citi subsequently auctioned off the collateral, Id. at 23-28.\\nCDO Fund sued Citi,-claiming (1) that Citi breached the agreements governing the credit default swaps because its margin calls were based on valuations that were commercially unreasonable and were made in bad faith and (2) that Citi's subse quent auctioning of the collateral violated Article 9 of the UCC. See Compl. (ECF No. 1).\\nCiti counterclaimed, suing CDO Fund, Highland GP (CDO Fund's general partner), and HCM (CDO Fund's management company). Citi sought to recover a $24 million deficit it claimed that CDO Fund still owed under the agreements governing the credit default swaps and sought indemnification from the counterclaim defendants for all losses and costs that Citi incurred as a result of CDO Fund\\u00eds breach. See Citi's Am. Countercl. (ECF No. 43).\\nAfter discovery, the parties cross-moved for summary judgment. See ECF Nos. 88, 119. In March 2016 we issued a Memor\\u00e1n-dum and Order (1) denying Highland's motion in its entirety; (2) granting Citi's motion that it did not breach the credit default swap agreements when it seized CDO Fund's collateral in December 2008; (3) granting Citi's motion that its sale of collateral in March 2009 did not violate the UCC; and (4) denying Citi's motion that the December 2008 collateral sale did not violate the UCC, thereby permitting CDO Fund's UCC claim to proceed with respect to that collateral. See M & O (ECF No. 150). Citi did not move on its counterclaims, which sought from the counterclaim defendants the recovery'of a $24 million deficit and indemnification for Citi's costs and losses.\\nIn our March 2016 Memorandum & Order, we also noted that the record was incomplete on whether Citi could prevail against HCM under a veil piercing theory. Specifically, we noted that the record was incomplete on (1) the extent of CDO Fund's contacts with its place of incorporation (Bermuda), which is relevant to the choice-of-law analysis for the veil piercing issue, and (2) Citi's contention that it would need to pierce at least one Highland-related entity before reaching HCM. Id. at 67-68.\\nAccordingly, we permitted limited supplemental discovery and permitted a second round of summary judgment motions on the veil piercing issue. Before us now are the parties' cross-motions for summary judgment on Citi's attempt to hold HCM liable for CDO Fund's obligations. See ECF Nos. 188,197.\\nII. Highland Entities\\nThere are numerous Highland-affiliated companies that are relevant to the present motions. Defendant CDO Fund is the original plaintiff and was the counterparty to Citi's credit default swaps. Compl. (ECF No. 1); Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 12. It was a fund structured by HCM to invest in collateralized debt obligations (\\\"CDOs\\\") and collateralized loan obligations (\\\"CLOs\\\"). M & O (ECF No. 150) at 5. It invested principally in CLO equity and mezzanine tranches, the two lowest priority tranches. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 11.\\nCDO Fund was organized as an exempted limited partnership under Bermuda law. Id. \\u00b6 10. It had neither its own employees nor office, and instead was managed entirely by HCM out of HCM's Texas office. Id. \\u00b6 15. James Dondero\\u2014HCM's co-founder, president, and \\\"dominant partner,\\\" id. \\u00b6 4; McCallum Decl. (ECF No. 199), Ex. 20 at 18:6\\u2014was CDO Fund's principal portfolio manager, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 17.\\nTodd Travers\\u2014an HCM senior partner who ran its'\\\"CLOs and separate managed accounts\\\" business unit and who reported to- Dondero, McCallum Decl. (ECF No. 199), Ex. 89 at 21:6-24\\u2014was CDO Fund's senior portfolio manager, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 28.\\nCDO Fund had two limited partners known as its \\\"feeder\\\" funds. Highland CDO Opportunity Fund, L.P. was the \\\"onshore feeder.\\\" Highland's 56.1 (ECF No. 189) \\u00b64. It was organized as a limited partnership under Delaware law, id., and was managed, by HCM, .see Citi's 56.1 (ECF No. 208, Ex. B) \\u00b6 47.\\nHighland CDO Opportunity Fund, Ltd. was the \\\"offshore feeder.\\\" Highland's 56.1 (ECF No. 189) \\u00b6 5. It was organized as a corporation under Bermuda law, kh, and was also managed by HCM, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b635. It was designed primarily to provide favorable tax treatment for foreign investors in CDO Fund. Highland's 56.1 (ECF No. 189) \\u00b6 5.\\nHCM was a special limited partner of the onshore feeder and a voting shareholder of the offshore feeder. Id. \\u00b6 13. Dondero was a director and president of the offshore feeder, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 34, and the \\\"organizational\\\" limited partner of the onshore feeder, id. \\u00b6 46. Travers was the senior portfolio manager for the two feeder funds. Id. \\u00b6 28.\\nCDO Fund's general partner was defendant Highland GP. Id. \\u00b6 52. It was organized as a limited partnership under Delaware law. Id. Other than de minimis cash,, its sole asset was its partnership interest in CDO Fund. Id. \\u00b6 53. It had no employees or office, id., and was managed by HCM, id. \\u00b6 54.\\nHighland CDO Opportunity Fund GP, L.P.'s general partner was Highland CDO Opportunity GP, LLC. Id. \\u00b6 57. It was organized as a limited liability company under Delaware law. Id. Its sole member was HCM. Id. \\u00b6 58. It had no offices or employees of its own, id., and appears to have been managed by HCM. Other than de minimis cash, its sole asset was its partnership interest in Highland GP. Id.\\nIII. The HFP Notes\\nA central element of Citi's veil piercing claims involves certain note's issued in September 2008 by Highland Financial Partners, L.P. (\\\"HFP\\\"), a hedge fund established and managed by HCM. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 60, 63. Travers was HFP's CEO and president, and Dondero was one of its directors. Id. \\u00b6 62.\\nHFP faced liquidity concerns going back to April 2008. McCallum Decl. (ECF No. 199), Ex. 120 at 110:14-17. In mid-2008, HFP sought to conduct a private placement to raise $200 million so that HFP could \\\"continue operations as normal\\\" under the belief that $100 million would be \\\"inadequate to fully return to normal operations.\\\" Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 108, 109. The private offering was completed in July 2008, but only raised approximately $97 million; Highland funds contributed approximately $85 million of the total, including $15 million & cash contributed by CDQ Fund. Id. \\u00b6 110; McCallum Decl. (ECF No. 199), Ex. 98 at CD000082727.082.\\nIn September 2008, HFP issued $316 million in long term \\\"senior secured notes\\\" backed by CLOs and life settlement contracts (the \\\"HFP Notes\\\"). Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 128, 130; McCallum Decl. (EOF No. 199), Ex. 17. The income received on the assets backing the notes was to be pooled and distributed to note holders on a quarterly basis; however, HFP had the option of satisfying the distributions in cash or in newly-issued notes (the \\\"payment-in-kind\\\" option). Id., Ex. 17 at CITI-HL-00008157.\\nCDO Fund purchased $47.7 million of the HFP Notes in. exchange for $52.8 million in assets and the forgiveness of a $5.1 million prior obligation. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 131-32.\\nIV. Citi's October Margin Call\\nIn the fall of 2008, Citi and CDO Fund were parties to two financing arrange-' ments: (1) a secured loan facility with a maturity date of December 1, 2008 (the \\\"Loan Facility\\\"); and (2) a series'of credit default swaps with an aggregate noti\\u00f3nal value of $59 million, M & O (ECF No. 150) at 6. \\\"\\nUnder the credit default, swaps .agreements, CDO Fund posted initial cash collateral (or margin) based on a percentage of Citi's exposure. Id. at 8. If the value of the posted collateral decreased relative to Citi's exposure, CDO, Fund was required to post additional collateral. Id. at 9. Citi's permission was required for CDO Fund to post collateral other than cash and treasury bonds. Id. at 8.\\nOn October 17, 2008, Citi issued a1 $17.6 million margin call to CDO Fund. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6159. The parties eventually agreed that CDO Fund would satisfy the margin call by pledging its remaining HFP Notes to Citi as collateral, id., with the notes valued at 40% of their $21.4 million face value, or approximately $8.6 million, id. \\u00b6 168; Highland's Opp. 56,1 (ECF No. 209) \\u00b6 168; McCallum Decl. (ECF No. 199), Ex. 3 at CITI-HL-00052734.\\nThe agreement was memorialized on November 25, 2008 (the \\\"November 25 Agreement\\\"). As part of the agreement, HCM also guaranteed CDO Fund's obligation to pay Citi the remaining $5 million balance on the Loan Facility and CDO Fund agreed to meet future margin calls in cash. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 167. \\u2022\\nThe November 25 Agreement also contained a provision addressing the \\\"pay-raent-in-kind\\\" option on the HFP Notes under which HFP had the option to pay quarterly distributions in newly-issued notes rather than in cash. Under the November \\\"25 Agreement, the parties agreed that as long as Citi held any of the HFP Notes \\u00fander a pledge from CDO' Fund,\\nif HFP has cash available on a Quarterly Payment Date in an amount equal or greater to the Quarterly ' Payment Amount, [HCM] will recommend to the board of directors and management of HFP, to the extent consistent with HCM's fiduciary duties, that HFP not exercise the [payment-in-kind] Option on the Notes for such Quarterly Payment Date.\\nCiti's 56.1 (ECF No. 203, Ex. B) \\u00b6 167; Highland's Opp. 56.1 (ECF No. 209) \\u00b6 167.\\nV. . Citi's December 2008 Margin Call\\nOn December 12, 2008; Citi issued an-oth\\u00e9r margin call for $20 million. Citi's 66.1 (ECF No. 203, Ex. B) \\u00b6 93. CDO Fund did not meet the call.\\nThe parties subsequently discussed possible options by which CDO Fund could meet the December margin call, see, e.g., id. \\u00b6 97, including a \\\"standstill\\\" agreement under which CDO Fund would post additional collateral to satisfy its obligations under the margin call, id. \\u00b6 99. Citi emailed HCM a draft of the agreement on December 22, 2008, stating, \\\"Guys, we need to get this done by tomorrow at the latest. We also need the collateral transferred asap.\\\" Id. \\u00b6 100.\\nTwo days later, on December 24, 2008, HCM informed Citi by email that it would not be able to reach an agreement; HCM explained that, in light of Moody's and S & P downgrading certain CLOs, \\\"the terms and conditions contained in your recent proposal are no longer practical for [HCM] and [CDO Fund]. Although the previously contemplated solutions involving additional monies dr guarantees are not possible we would like to explore terming out the financing by posting additional collateral.\\\" McCallum Decl. (ECF No. 199), Ex. 86.\\nLater that day, Citi declared an event of default under the credit default swap agreements and foreclosed on CDO Fund's collateral for failure to meet the December margin call. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 106.\\nVI. Unwinding of the HFP Notes\\nIn March 2009 the HFP Notes were unwound, with Citi surrendering its HFP Notes in exchange for certain assets that served- as collateral on the notes. Highland's 56.1 (ECF No. 189) \\u00b6 60-61. As Par^ ^he unwinding of the notes, Citi also agreed.to release all claims related to ^he HFP Notes. Id. \\u00b6 61-63.\\nDISCUSSION\\nI. Summary Judgment Standard\\nSummary judgment is appropriate when the moving party \\\"shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.\\\" Fed. R. Civ. P. 56(a). \\\"A fact is 'material' when it might affect the outcome of the suit under governing law.\\\" McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks 'omitted). A genuine dispute exists if a reasonable factfinder could decide in the nonmoving party's favor. Id.\\nA court must resolve all ambiguities and draw all justifiable factual inferences in the nonmoving party's -favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party must \\\"make a prima facie showing that it is entitled to summary judgment.\\\" Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party puts forth such a showing, then there is no issue for trial unless the party opposing summary judgment presents \\\"sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.\\\" Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505.\\nII. HCM Is Not Liable on Citi's Counterclaims\\nCiti advances various theories under which it seeks to hold HCM liable for any judgment awarded against-CDO Fund: (1) HCM is liable under a traditional -veil piercing theory; (2) HCM is liable as the \\\"equitable\\\" owner of CDO Fund'; (3).HCM is liable as CDO Fund's \\\"de facto\\\" general partner; and (4) HCM is liable as CDO Fund's \\\"de facto\\\" limited partner.\\nHowever, before we reach these theories, we must address the law that governs Citi's veil piercing claims.\\nA. Choice of Law Governing Veil Piercing Claims\\nThe parties agree that even though CDO Fund is organized in Bermuda, Bermuda law should not apply because CDO Fund had no meaningful connections with that jurisdiction. See Highland's MSJ (ECF No. 190) at 5; Citi's MSJ (ECF No. 201) at 10. Instead, Highland argues that Texas law applies, while Citi argues for New York law.\\nUnder New York's choice-of-law rules, \\\"the first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved.\\\" GlobalNet Financial.Com, Inc. v. Frank Crystal & Co., 449 F.3d 377, 382 (2d Cir. 2006) (quoting In re Allstate Ins. Co., 81 N.Y.2d 219, 223, 597 N.Y.S.2d 904, 613 N.E.2d 936 (1993)).\\nA conflict exists here. To pierce a corporate veil under Texas law, a plaintiff must establish an \\\"actual fraud,\\\" whereas he need only establish a fraud or wrong under New York law. Compare Ocram, Inc. v. Bartosh, 01-11-00793-CV, 2012 WL 4740859, at *2 (Tex. App.\\u2014Houston [1st Dist.] Oct. 4, 2012, no pet.) (finding that Texas statute permits \\\"the use of alter ego or other similar theory, to impose liability on a holder 'if the obligee demonstrates that the holder . caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder'\\\" (citing Tex. Bus. Orgs. Code Am. \\u00a7 21.223(b))), with JSC Foreign Econ. Ass'n Technostroyexport v. Int'l Dev. & Trade Servs., Inc., 386 F.Supp.2d 461, 476 (S.D.N.Y. 2005) (\\\"[Pjlaintiff is not required to demonstrate fraud for the Court to pierce the corporate' veil; under New York law, the plaintiff must show that the alleged dominator's 'domination was used to commit a fraud or wrong against the plaintiff which resulted in the plaintiffs injury.' \\\" (quoting Morris v. N.Y. State Dep't of Taxation & Fin., 82 N.Y.2d 135, 141, 603 N.Y.S.2d 807, 623 N.E.2d 1157, 1160-61 (1993)).\\nHaving found that a conflict exists, the next step is to apply New York's \\\"interest analysis\\\" test. New York's interest analysis \\\"is a flexible approach intended to give controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation.\\\" Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 739 F.3d 45, 48-49 (2d Cir. 2013) (internal quotation marks omitted).\\nThe test is applied differently depending on whether the rules in question are \\\"conduct-regulating,\\\" ie., \\\"rules that people use as a guide to governing their primary conduct,\\\" or \\\"loss-allocating,\\\" ie., \\\"rules that prohibit, assign, or limit liability after the tort occurs.\\\" Id. at 49 (internal quotation marks omitted).\\nWhen \\\"conduct-regulating laws are at issue, the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders.\\\" GlobalNet Financial.Com, Inc., 449 F.3d at 384-85 (internal quotation marks omitted). \\\"If the conflict involves allocation of losses, the site of the tort is less important, and the parties' domiciles are more important.\\\" Id.\\nAs an initial matter, it is not entirely clear whether veil piercing is a conduct- or loss-regulating rule, something neither party addresses and which other courts do not appear to have addressed. We find that veil piercing is best treated as a species of fraud or similar tort and therefore is a conduct-regulating rule. Accordingly, the place where the veil piercing \\\"occurred\\\" is the most important factor under the interest analysis test. Under New York law, \\\"[a] tort occurs in the place where the injury was inflicted, which is generally where the plaintiffs are located.\\\" Lyman Commerce Sols., Inc. v. Lung, No. 12-CV-4398, 2013 WL 4734898, at *4 (S.D.N.Y. Aug. 30, 2013); see also Cromer Fin. Ltd. v. Berger, 137 F.Supp.2d 452, 492 (S.D.N.Y. 2001) (\\\"[F]or claims based on fraud, a court's 'paramount' concern is the locus of the fraud, that is, the place where the injury was inflicted, as opposed to the place where the fraudulent act originated.\\\" (internal quotation marks omitted)).\\nApplying the above rules, we find that New York has the greatest interest in applying its law to the veil piercing claims at issue here. Three of the four Citi counterclaim plaintiffs have their principal places of business in New York, including Citibank, N.A., who was the counterparty to the credit default swap agreements giving rise to the counterclaims. M & O (ECF No. 150) at 7-8 & n.2. Accordingly, the relevant injury here occurred in New York. Moreover, various agreements relevant to Citi's claims are governed by New York law, including the underlying credit default swap agreements, the agreement under which the HFP Notes were issued, and the November 25 Agreement between CDO Fund and Citi. Id. at 8. Thus, New York has a significant interest in ensuring that parties who contract under New York law cannot escape liability to a New York counterparty by abusing the corporate form. See, e.g., UBS Sec. LLC v. Highland Capital Mgmt., L.P., 30 Misc.3d 1230(A), 924 N.Y.S.2d 312 (Sup. Ct. N.Y. Cty. Mar. 1, 2011) (finding New York law applied to veil piercing claims against [Highland affiliate] SOHC where \\\"contracts between SOHC and UBS at issue . were negotiated through counsel in New York and, by their terms, are governed by the law of New York\\\"), aff'd in part, modified in part, 93 A.D.3d 489, 940 N.Y.S.2d 74 (1st Dep't 2012).\\nTexas's interests, in contrast, are significantly more limited. While the parties agree that HCM managed CDO Fund from its office in Dallas, Texas, Citi's-56.1 (ECF No. 203, Ex. B) \\u00b6 15, HCM is incorporated in Delaware, not Texas, id. \\u00b6 1, and there is no injury that is claimed, to have occurred in Texas, cf. Highland MSJ (ECF No. 190) at 6-7. Thus, the only interest that Texas has in this litigation is regulating the conduct of a foreign company doing business within Texas when the conduct injures parties outside of Texas. That does not outweigh New York's significant interests in the litigation.\\nAccordingly, we find that New York's law applies to Citi's attempt to pierce CDO Fund's veil.\\nB. HCM Is Not Liable Under a Veil Piercing Theory\\nCiti first argues that HCM can be held liable under a traditional veil piercing theory.\\nAs an initial matter, Highland argues that veil piercing is inapplicable in the context of a limited partnership because a general partner is always liable for the partnership's obligations to third parties. Whatever the merits of that argument, we need not reach it here because we find that Citi has not established the elements of.a veil piercing claim regardless of whether the doctrine is applicable to limited partnerships.\\nTo pierce the corporate veil under New York law, a plaintiff must establish (1) \\\"that the owner exercised complete domination oyer the corporation with respect to the transaction at issue\\\" and (2) \\\"that Such domination was used to commit a fraud or wrong that injured the party seeking to pierce the veil.\\\" Thrift Drug, Inc. v. Universal Prescription Adm'rs, 131 F.3d 95, 97 (2d Cir. 1997) (internal quotation marks omitted).\\n1. Domination\\nThe Second Circuit has identified ten factors to consider in determining whether an entity exercises complete domination over another: '\\n(1) the absence of the formalities and paraphernalia that are part .and parcel of the corporate existence, ie., issuance of stock, election of directors, keeping of corporate records and the like, (2) inadequate capitalization, (3) wheth\\u00e9r funds are put in and taken out of the corporation for personal rather than corporate purposes, (4) overlap in ownership, officers, directors, and personnel, (5) common office space, address and telephone numbers of corporate entities, (6) the amount of business discretion displayed by the allegedly dominated corporation, (7) whether the related corporations deal with the dominated corporation at arms length, (8) whether the corporations are treated as independent profit centers, (9)the payment or guarantee of debts of the dominated corporation by other corporations in the group, and (10) whether the corporation in question had property that was used by other of the corporations as if it were its own.\\nWm. Passalacqua Builders, Inc. v. Resnick Developers S., Inc., 933 F.2d 131, 139 (2d Cir. 1991).\\nWe have no difficulty finding that HCM exercised complete control over CDO Fund based on the following facts, which we find to be undisputed:\\n\\u2022 CDO Fund did not have, its own offices or employees; its operations were managed entirely by HCM personnel; Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 15.'\\n\\u2022 HCM managed CDO Fund pursuant to an investment-manager agreement that required HCM's .principals to \\\"provide full-time investment management services to [CDO Fund]\\\" and \\\"direct the investment decisions of [CDO Fund]\\\" either directly or indirectly through HCM. Highland's 56.1 (ECF No. 189) \\u00b6 43.\\n\\u2022 HCM and its personnel also managed both of CDO Fund's feeder funds, CDO Fund's general partner, and that entities general partner. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 35, 47, 54. None of those entities had their own offices (with the exception of the offshore feeder) or employees. Id. \\u00b6 36, 51, 53, 58.\\n\\u2022 Through a web of intermediaries, HCM and its personnel held direct ownership interests in every CDO Fund-related entity: HCM-was (1) a limited partner of CDO Fund's general partner, Highland's 56.1 (ECF No. 189) \\u00b6 15; (2) the sole owner of that entity's general partner (Highland CDO Opportunity GP, LLC), Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 58; (3) a special limited partner of the onshore feeder, id., \\u00b6 46; and (4) the sole voting shareholder of the offshore feeder, id. \\u00b6 34.\\n\\u2022 James Dondero\\u2014HCM's co-founder, president, and \\\"dominant partner,\\\" id. \\u00b6 4; McCallum Decl. (ECF No. 199), Ex. 20 at 18:6\\u2014was (1) the principal portfolio manager to CDO Fund, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 17; (2) a director and president of the offshore feeder, id. \\u00b6 34; and (3) the \\\"organizational\\\" limited partner of the onshore feeder, id. \\u00b6 46.\\n\\u2022 As a result of HCM's and Dondero's management and ownership roles, Dondero was the sole signatory to CDO Fund's Articles of Limited Partnership, executing it on behalf of the fund's general partner and the fund's two limited partners. See McCallum Decl. (ECF No. 199), Ex. 29. Similarly, Dondero was the sole signatory to the investment management agreement between HCM and CDO Fund. See id., Ex. 32.\\n\\u2022 Dondero testified that he never lost \\\"controlling authority over [CDO Fund's] general partner, the limited partner, or the fund itself as a result of the addition of new investors.\\\" Id., Ex. 20 at 160:22-161:2.\\n\\u2022 Todd Travers\\u2014an HCM senior part- , ner who ran its \\\"CLOs and separate ' managed accounts\\\" business unit and who reported to Dondero, id.,,Ex. 89 at 21:6-24\\u2014was also the senior portfolio manager for CDO Fund and the two feeder funds, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 28. He testified that he \\\"viewed the domestic feeder and the offshore feeder and the mas- \\u2022 ter fund as one master fund.\\\" McCal-lum Decl. (ECF No. 199), Ex. 89 at 37:21-38:11.\\n\\u2022 CDO Fund did not produce audited financial results for 2008 (although it did for 2007). Citi's 56.1 (ECF No. 203,. Ex. B) \\u00b6 26; Highland's MSJ (ECF No. 190) at 14. Highland claims they were not produced because by April 2009, which is when they would have been prepared, the fund was being wound down. See Highland's Opp. MSJ (ECF No. 208) at 14.\\n\\u2022 After September 30, 2008, HCM ceased to keep a capital roll record on behalf of CDO Fund and the feeder funds because \\\"it was no longer worth expending the fnoneys\\\" to do , so. Citi's 56.1 (ECF No. 203, ex. B) \\u00b6 32.\\n\\u2022 Funds were often transferred directly from HCM to CDO Fund without passing through the feeder funds. See McCallum Decl. (ECF No. 199), Ex. 47.\\n\\u2022 HCM repeatedly moved cash between itself and the various funds it managed, including CDO Fund, in order to provide liquidity during late 2008. Among other things, and as discussed further below, (1) HCM extended multiple cash loans to CDO Fund, see Highland's Opp. MSJ (ECF No. 208) at 14; Citi's Opp. 56.1 \\u00b6 37; McCallum Decl. (ECF No. 199), Exs. 44, 46, 48, 49, 50; (2) HCM had an affiliate cover a $5.1 million margin call on CDO Fund's behalf, see infra at 729; and (3) HCM drew on a personal loan from one of its principals, Mark Okada, to provide liquidity to CDO Fund, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 82, 90.\\n\\u2022 Travers testified that when CDO Fund invested $15 million in HFP in July 2008, he did not \\\"think it was a decision based on a particular fund,\\\" but rather it was \\\"a global decision to help HCM and all of its affiliates as a combined entity.\\\" McCallum Decl. (ECF No. 199), Ex. 120 at 157:4-14.\\n\\u2022 CDO Fund's purchase of the HFP Notes in September 2008 was not an arm's length transaction. The notes were illiquid securities and were only ever purchased by and traded among HCM-managed funds. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 140. Travers testified that no \\\"one ever obtained a true analysis of the transaction to confirm that it really did represent what an arm's-length transaction would have looked like\\\" and that he did not \\\"think an arm's-length transaction like that could have happened in that time frame.\\\" McCallum Decl. (ECF No. 199), Ex. 120 at 213:5-18. Travers also testified that it was \\\"[p]robably not\\\" \\\"a prudent investment [for CDO Fund] to loan money to HFP at that time\\\" as compared to \\\"doing just about anything else with its available cash or resources.\\\" Id. at 218:19-24. In addition, Dondero testified that by September 2008 HFP \\\"wouldn't have been able to get any financing under any terms.\\\" Id., Ex. 20 at 418:13-14.\\nWe find the above facts are sufficient to find that, as a matter of law, HCM dominated CDO Fund for purposes of the veil piercing analysis.\\n2. Wrong or Fraud\\nNevertheless, we find that Citi has not established that HCM used its domination of CDO Fund to perpetuate a fraud or wrong on Citi. Citi identifies three acts which it asserts constitute fraudulent or wrongful conduct: (1) HCM stripped cash and assets from CDO Fund prior to Citi's December margin call; (2) HCM diverted cash distributions on the HFP Notes that would otherwise have been available to CDO Fund to satisfy Citi's margin call; and (3) HCM fraudulently represented the value of the HFP Notes. We consider each in turn.\\na. Asset Stripping\\nCiti claims that in December 2008 HCM stripped CDO Fund of cash and assets that would have otherwise been available to satisfy Citi's $20 million December margin call. .\\nCiti- first identifies a transfer of $2.2 million in cash on December 15, 2008, from CDO Fund to Highland CLO Value Fund, a Highland affiliate that was managed by HCM and had no employees or offices of its own. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 83; Highland's Opp. 56.1 (ECF No. 209) \\u00b6 83. However, the record shows that the transfer was a partial return of $3.5 million in cash that Highland CLO Value Fund had transferred to CDO Fund on December 2, 2008, just two weeks earlier. See McCallum Decl. (ECF No. 199), Ex. 47 (CDO Fund's cash flow spreadsheet recording the December 2, 2008, transfer as' a \\\"Transfer . for Pre-Funding of Trades\\\" and recording December 15, 2008, transfer as \\\"Return of Overpayment on Pre-Funded Trades\\\"); McCallum Deck (ECF No. 199), Ex. 65 (December 15, 2008, HCM emajl explaining that \\\"[e]m-bedded in [the initial transfer of] $3.5mm is the $2.241mm that needs to be returned to CLO Value Fund from CDO Fund. The $2.241mm represents a prefunded payment for bonds that were traded to RBS instead of CLO Value. CDO Fund must return the [$2.241mm in] cash since CLO Value did not receive the funds.\\\").\\nCiti next identifies $8.1 million in assets transferred out of CDO Fund around December 22, 2008. Of the total, CDO transferred $5.1 million in assets to Highland Special Opportunities Holding Company (\\\"SOHC\\\"), Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 103, a wholly-owned subsidiary of HFP, id. \\u00b6 68. As above, however, the record shows that the asset transfer\\u00edas to satisfy a preexisting obligation that CDO Fund owed SOHC. Specifically, SOHC had previously satisfied CDO Fund's obligation to cover 51% of a $10 million margin call (or $5.1 million) made by UBS on a separate loan facility. See McCallum D\\u00e9cl. (ECF No. 199), Ex. 71; id., Ex. 115 (December 16, 2008, HCM email explaining that \\\"[a]s presented in the 11/18/2008 board meeting materials, SOHC posted assets totaling $10mm market value on October 24th to satisfy a margin call on the UBS facility. The assets listed below represent CDO Fund's repayment of their share of that margin call, $5.1mm.\\\").\\nThe $8.1 million also consisted of $3 million in assets transferred from CDO Fund to HCM. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 103. Again, however, the transfer was to satisfy a preexisting obligation owed by CDO Fund, namely a $3 million cash loan from HCM to CDO Fund made around October 24, 2008. See McCallum Deck (ECF No. 199), Ex. 71 at CD000081174 (noting that the transfer' was \\\"as payment for a loan provided by [HCM] to CDO Fund\\\"); id., Ex. 47 (CDO Fund's master cash flow spreadsheet recording a $3 million cash transfer from HCM to CDO Fund on October 24, 2008, as a \\\"Loan from HCMLP\\\"); Leventon Deck (ECF No. 191), Ex. A-22 ($3 million promissory note from CDO Fund to HCM dated October 24, 2008);; Oral Arg. Tr. at 37:5-22 (stating that asset transfer was to repay $3 million promissory note dated October 24,2008). - '\\nGiti next argues that even if the transfers to HGM and its affiliates were to-satisfy preexisting obligations, they still constitute a wrong for veil piercing purposes because CDO Fund was insolvent or near insolvency at the time of the transfers and therefore owed a fiduciary duty to its general creditors not to self-deal. Citi claims that .CDO Fund's repayment of loans to HCM and HCM affiliates violated this duty. Citi Opp. MSJ (ECF No. 213) at 4.\\n\\u2022 Putting aside factual questions of whether and when CDO Fund was insolvent or in the \\\"zone of insolvency,\\\", we find Citi's argument unpersuasive for- several reasons. First, despite giving Citi the .opportunity to submit supplemental.-briefing on the issue, Citi cites no authority applying \\u2022its fiduciary duty theory in the veil piercing context. Rather, the .cases, that Citi cites in support are all in the bankruptcy context, see In re Kingston Square Assocs., 214 B.R. 713, 735 (Bankr. S.D.N.Y. 1997); In re Hampton Hotel Inv'rs, L.P., 270 B.R. 346, 361 (Bankr. S.D.N.Y. 2001), which have limited applicability here.\\nIn contrast, there is case law\\u2014specifically in the context of fraudulent conveyances\\u2014finding that similar transfers do not constitute, a wrong for veil piercing purposes. New York law distinguishes between actual and constructive fraudulent conveyances, the former requiring intent \\\"to hinder, delay, or defraud either present or future creditors.\\\" Am. Federated Title Corp. v. GFI Mgmt. Servs., Inc., 126 F.Supp.3d 388, 401 (S.D.N.Y. 2015) (citing N.Y. Debt. & Cred. Law \\u00a7 276), reconsideration denied, No. 13-CV-6437 (KMW), 2016 WL 4290525 (S.D.N.Y. Aug. 11, 2016). In contrast, \\\"[c]onstruetively fraudulent conveyances under [New York.law] are defined exclusively by the objective conditions of the asset transfer at issue, without regard to the debtor's intent in making the transfer,\\\" Id. at 400.\\nHowever, New York courts have rejected the argument that constructive fraudulent transfers, even when made to a company's owners, constitute a per se wrong for veil-purpose-piercing purposes:\\n[ E]ven if a constructively fraudulent transfer has the effect of removing assets that could have been used to satisfy a corporation's obligations to other creditors, the transfer may not have been made with a deceitful or unjust purpose. Absent persuasive evidence of a culpable motive, therefore, a claim that is successful under [New York's constructive fraudulent conveyance statute] may not establish wrongdoing sufficient to justify veil-piercing.\\nId., at 405.\\nHere, the only evidence that Citi offers in support of an unjust motive is an email from December 22, 2008, in which HCM says that the $8.1 million asset transfer \\\"MUST SETTLE NO LATER THAN TOMORROW.\\\" McCallum Deck (ECF No. 199), Ex. 71 at CD0000881169. Citi argues that this email is evidence that HCM was attempting to strip the assets from CDO Fund in advance of the \\\"standstill\\\" agreement, which fell through sometime in the next two' days. However, the significance of the email is ambiguous, at best, and must be considered against the fact that the loans that were being repaid provided CDO Fund with much-needed li quidity in late-October and November 2008, which in turn redounded to Citi's benefit. Thus, we find the evidence is insufficient to establish that HCM transferred the assets in question with the intent to defraud Citi.\\nb. Diversion of HFP Note Cash -Distributions\\nIn addition to asset stripping, Citi alleges two wrongs related to the HFP Notes. Under the first theory, Citi claims that HCM diverted certain cash received on the underlying HFP Note assets, thereby preventing Citi from receiving the cash as a note holder. Specifically, Citi claims that HFP received at least $10 million in cash proceeds on the assets underlying the HFP notes, but used the cash \\\"to make required' payments on other short term financing facilities\\\" and also diverted cash from HFP to HCM and Dondero.\\nAs Citi concedes, it was not contractually entitled to receive cash distributions on the HFP Notes because HFP had . the option of paying distributions in kind, ie,, by issuing.new notes. Nevertheless, Citi argues that HCM had an implied good faith obligation under the November 25 Agreement to ensure that cash was available for distribution on the notes. Citi's Opp. MSJ (ECF No. 213) at 5. Citi bases this good faith obligation-on the provision in the November 25 Agreement under which the parties agreed that as-long as Citi held any of the HFP Notes,\\nif HFP has cash available on a Quarterly Payment Date in an amount equal or greater to the Quarterly Payment Amount, [HCM] will recommend to the board of directors and management of HFP, to the extent consistent with HCM's fiduciary-duties, that , HFP not \\u2022 exercise the [payment-in-kind option] on the Notes for such Quarterly Payment Date.\\nHighland's Opp. 56.1 (ECF No. 209) \\u00b6 167 (emphasis added).\\nAgain we find several flaws with Citi's argument. First, the conduct that Citi identifies\\u2014transferring cash from HFP to HCM and Dondero and thereby breaching an obligation that HCM owed directly to Citi\\u2014had nothing to do with CDO Fund and therefore cannot form the basis for piercing CDO Fund's veil. In other words, the- conduct is not an example of HCM's dominance of CDO Fund where the \\\"domination was used to commit a fraud or wrong that injured\\\" Citi. Thrift Drug, 131 F.3d at 97.\\nSecond, we are unpersuaded that HCM even owed Citi a good faith obligation to ensure that cash was available for distribution on the HFP Notes.' \\\"In general, courts enforce the implied covenant where an implied promise was so interwoven in the whole writing of a contract as to be necessary for effectuation of the purposes of the contract.\\\" M/A-COM Sec. Corp. v. Galesi, 904 F.2d 134, 136 (2d Cir. 1990) (internal quotation marks omitted). However, \\\"the implied covenant arises only in connection with the rights or obligations set forth in the terms of the contract, and cannot create duties that negate explicit rights under a contract.\\\" In re Libor-Based Fin. Instruments Antitrust Litig., No. 11 MDL 2262 NRB, 2016 WL 4634541, at *67 (S.D.N.Y. Aug. 4, 2015) (internal quotation marks omitted), amended, No. 11 MDL 2262, 2015 WL 13122396 (S.D.N.Y. Oct. 19, 2015).\\nGiven that'the November 25 Agreement only required that HCM \\\"recommend\\\" to HFP that it make distributions in cash rather than in kind, and given that HFP had no obligation to follow the recommendation or even make distributions in cash, it makes little sense to read into the November 25 Agreement an implied promise that HCM would ensure that cash was available for distribution on the HFP Notes. To the contrary, such an implied promise would impose a duty on HCM beyond that which Citi bargained for.\\nFinally, it is unclear whether a breach of an implied obligation of good faith even constitutes a wrong for purposes of veil piercing. Citi cites no authority for that position. In contrast, it is well-established that an ordinary \\\"breach of contract, without evidence of fraud or corporate misconduct, is not sufficient to pierce the corporate veil.\\\" Am. Federated Title Corp., 126 F.Supp.3d at 403 (internal quotation marks omitted). Further, a \\\"breach of an implied covenant of good faith and fair-dealing does not provide a [distinct] cause of action . from a breach of contract claim,\\\" but \\\"is merely a breach of the underlying contract.\\\" Designers N. Carpet, Inc. v. Mohawk Indus., Inc., 153 F.Supp.2d 193, 197 (E.D.N.Y. 2001).\\nc. Valuation of the HFP Notes\\nFinally, Citi alleges that HCM fraudulently represented the value of the HFP Notes that CDO Fund pledged to Citi as collateral under the November 25 Agreement because HCM knew the notes were \\\"worthless.\\\" Under the agreement, the notes were valued at 40% of face value, or approximately $8.6 million.\\nCiti's claim fails because Citi presents no evidence suggesting that HCM believed the notes were overvalued. Rather, the evidence that Citi relies on in support of its claim\\u2014that on November 7,2008, HCM instructed its valuation firm to value HFP's equity at $250 million, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 144, but revised that figure down to $3.6 million on November 20, 2008, id. \\u00b6 145-46; that HFP's estimated liability on a loan facility as of November 20, 2008, was $160 million, id. \\u00b6 155; . and that HFP's book value had fallen to $0 by the end of November, id. \\u00b6 188\\u2014only suggests that HFP was insolvent. However, HFP's financial condition is irrelevant to the value of the HFP Notes because the notes were secured by independently valued collateral. Highland's Opp. MSJ (ECF No. 208) at 21; McCallum Decl. (ECF No. 199) Ex. 135.\\nIn response, Citi argues that HCM (1) failed to secure the HFP Note collateral as it was required to do; (2) disposed of unsecured collateral in January 2009, and (3) decided to unwind the HFP Notes on December 29, 2008, because of \\\"serious doubt\\\" about HFP's ability to service the debt on the HFP Notes. Citi Opp. MSJ (ECF No. 213) at 6. Even if true, though, none of those facts suggests that HCM believed the HFP Notes were overvalued when they were pledged to Citi as collateral in November 2008,\\nAccordingly, Citi's claim that HCM fraudulently represented the value of the HFP Notes fails as a matter of law.\\n\\nBecause none of the acts identified by Citi constitutes a wrong or fraud for veil piercing purposes, HCM is not liable for CDO Fund's obligations under a traditional veil piercing theory.\\nC. HCM Is Not Liable As CDO Fund's \\\"Equitable\\\" Owner\\nIn addition to asserting that HCM is liable under a traditional veil piercing theory, Citi also seeks to hold HCM liable as CDO Fund's \\\"equitable\\\" owner. However, that theory fails for the same reason as above.\\n\\\"New York courts have recognized for veil-piercing purposes the doctrine of equitable ownership, under which an individual who exercises sufficient control over the corporation may be deemed an 'equitable owner', notwithstanding the fact that the individual is not a shareholder of the corporation.\\\" Freeman v. Complex Computing Co., 119 F.3d 1044, 1051 (2d Cir. 1997). In such cases, \\\"a nonshare-holder defendant may .be, in reality, the equitable owner of a corporation where the nonshareholder defendant exercises considerable authority over the corporation to the point of .completely disregarding the corporate form and acting as though its assets are his alone to manage and distribute.\\\" Id. (alterations omitted) (internal quotation marks omitted). The Second Circuit applied the doctrine in Freeman to hold a company's consultant liable, despite the fact that he was neither a shareholder, officer, director, nor employee of the company. Id. 1051-52.\\nImportantly, however, the theory is not an alternative to veil piercing, but rather a recognition that veil piercing can apply to someone who is not a legal owner of a corporation if he exercises sufficient control and uses that control to commit a fraud or wrong. As the Second Circuit made clear in Freeman, the party seeking to apply the theory must still show that the \\\"equitable\\\" owner \\\"commit[ted] a fraud or other wrong that resulted in un just loss or injury\\\" to the plaintiff. Id. at 1053.\\n, Thus, regardless of whether the record establishes that HCM was an \\\"equitable\\\" owner of CDO Fund, Citi's theory fails for the same reason . as its traditional veil piercing theory above\\u2014ie,, the absence of a fraud or wrong.\\nP. HCM Is Not CDO Fund's \\\"De Facto\\\" General Partner\\nCiti next argues that HCM may be liable as CDO Fund's \\\"de facto\\\" general partner. Again, this theory fails for the same reason as above\\u2014the absence of a fraud or wrong.\\nCiti argues that HCM is CDO Fund's de facto general partner because, among other things, (1) HCM had sole responsibility for managing CDO Fund's operations; (2) CDO Fund's actual general partner (Highland GP), and that entity's general partner were both shells that were managed by HCM; and (3) Dondero controlled. CDO Fund and executed certain agreements on behalf of all parties to the agreements. Citi's MSJ (ECF No, 201) at 22.\\nCiti's legal theory is unclear. Citi cit\\u00e9s no case law under which one entity may simply be deemed another entity's \\\"de fac-to\\\" general partner. Rather, Citi. must establish that HCM should be treated as CDO Fund's general partner (ie,, Highland GP) by piercing the general partner's veil or .treating the entities as alter egos. However, to pierce Highland GP's veil or hold Citi liable as its alter ego, Citi must still establish that HCM committed a fraud or wrong that injured Citi. See Int'l Equity Invs., Inc. v. Opp. Equity Partners, Ltd., 475 F.Supp.2d 456, 459 (S.D.N.Y. 2007) (\\\" 'New York law allows the corporate veil to be pierced either when there is fraud or when the corporation has been used as an alter ego.' The latter normally requires 'a showing of . complete control by the dominating corporation that leads to a wrong against third parties.'\\\" (quoting Wm. Passalacqua Builders, Inc., 933 F.2d at 138) (citation omitted) (alteration omitted)). Having failed to establish either a fraud or wrong, Citi's de facto general partner theory fails for the same reasons as above.\\nE. HCM Is Not CDO Fund's \\\"De Facto\\\" Limited Partner\\nCiti's \\\"de facto\\\" limited. partner theory likewise fails. Citi argues that HCM was a de facto limited partner because CDO Fund's two limited funds\\u2014the offshore and onshore feeders\\u2014were shell companies that were managed by HCM. Citi's MSJ (ECF No. 201) at 23. Citi then argues that HCM, as a de facto limited . partner, can be liable as a general partner because it participated in CDO Fund's management. Id. Again, however, Citi's theory is predicated on a finding that the feeder funds' corporate forms should be ignored, which in turn requires finding that HCM committed a fraud or wrong that injured Citi. Having failed to do so, Citi's de facto limited partner theory also fails.\\n\\u215c * \\u215c\\nHaving rejected Citi's various theories, we find that HCM is not jointly and severally liable for , Citi's counterclaims against CDO Fund and dismiss Citi's claims against HCM.\\nIII. Liability on Citi's Counterclaims\\nApart from the issue of HCM's liability, the parties also dispute the status of Citi's counterclaims under which Citi seeks (1) to recover a $24 million deficit that Citi claims it is owed on account of CDO Fund's breach and (2) indemnification.\\nUnder New York law, an action for breach of contract requires proof of (1) a contract; (2) performance of the contract by one party; (3) breach by the other party; and (4) damages.\\\" First Inv'rs Corp. v. Liberty Mut. Ins. Co., 152 F.3d 162, 168 (2d Cir. 1998) (internal quotation marks omitted).\\nHere, the' amount of damages is not before us, and there is no dispute over the first and third elements, ie., that CDO Fund breached an agreement between the parties by failing to satisfy the December margin call. See M & O (ECF No. 150) at 33-50; id. at 60 (holding that \\\"Citi had the right to foreclose and liquidate the collateral and offset the proceeds against amounts owed by CDO Fund\\\"); Highland's Opp. MSJ (ECF No. 208) at 4 n.2 (conceding \\\"the existence of a contract and non-performance by CDO Fund (by not meeting the Margin Call)\\\").\\nThat leaves only the issue , of whether Citi performed under the relevant agreements.' Although riot raised in its motion papers, Highland argued at oral argument that Citi did not fully perform because it (1) failed to send CDO Fund a demand or deficit letter and (2) failed to provide CDO Fund an accounting or evidence of. its deficit calculation. Oral Arg. Tr. at 48:14-50:5.\\nEven if true, contract law requires only substantial performance, not complete performance. Bank of N.Y. Mellon Tr. Co. v. Morgan Stanley Mortg. Capital, Inc., 821 F.3d 297, 311-12 (2d Cir. 2016) (\\\"Substantial performance is performance, the deviations permitted being minor, unimportant, inadvertent, and unintentional.\\\" (internal quotation marks omitted)). We find that the deficiencies identified by Highland are no more than technical breaches, especially since we find implausible the notion that CDO Fund would have paid the deficit or indemnified Citi if Citi had merely issued a d\\u00e9ficit notice or provided an accounting. Accordingly, we find that Citi is entitled to summary judgment on the liability portion of its counterclaims.\\nCONCLUSION\\nFor the reasons set forth above, (1) Citi's motion seeking to hold HCM jointly and severally liable for any judgment awarded against CDO Fund is denied; (2) Highland's motion to dismiss HCM is granted; and (3) Citi's motion seeking to hold CDO Fund liable on Citi's counterclaims is granted. This Memorandum and Order resolves docket numbers 188 and 197.\\nSO ORDERED.\\n. \\\"Citi\\\" refers to counterclaim plaintiffs Citibank N.A., Citigroup Global Markets Limited, Citigroup Financial Products Inc., and Citigroup Global Markets Inc.\\n. The following facts are undisputed unless noted otherwise, For additional background, the Court refers to its March 21, 2013, Memorandum and Order (ECF No. 28) addressing Citi's motion to dismiss and its March 30, 2016, Memorandum and Order (ECF No. 150) (\\\"M & O\\\") addressing the parties' initial summary judgment motions.\\n. Highland argues that we may not rely on certain deposition testimony from Dondero and Travers because it was given in a separate case and therefore Highland did not have an \\\"opportunity and similar motive to develop the testimony.\\\" See, e.g., Pl.'s Opp. 56.1 \\u00b6 4. Highland cites no authority for such a proposition, which appears to be an improper application of the hearsay rule. While certain testimony of unavailable declarants may be inadmissible where the opposing party lacked an opportunity and similar motive to develop the testimony, see Fed. R. Evid. 804(b)(1)(B), that rule is inapplicable here because Donde-ro and Travers are available to testify. Moreover, their statements are not even hearsay, as they fall under the exception for opposing party statements. See id. 801(d)(2). Nor is testimony excludable on summary judgment merely because it was taken in a different case. See, e.g., Alexander v. Casino Queen, Inc., 739 F.3d 972, 978 (7th Cir. 2014) (\\\"The weight of authority is that depositions can be the equivalent of affidavits, and are therefore admissible at the summary judgment stage.\\\"); Gulf USA Corp. v. Fed. Ins. Co., 259 F.3d 1049, 1056 (9th Cir. 2001); Kovalchik v. City of New York, No. 09-CV-4546(RA), 2014 WL 4652478, at *5 n.5 (S.D.N.Y. Sept. 18, 2014). Accordingly, we will consider the testimony.\\n. Of the $47.7 million in HFP Notes originally received, CDO Fund sold $4 million to an HCM affiliate for cash, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 147, and transferred $22.3 million to HCM in satisfaction of prior loans, id. \\u00b6 150.\\n. Although Citi's motion seeks to hold both HCM and Highland GP jointly and severally liable, there is no dispute that counterclaim defendant Highland GP is liable for CDO Fund's obligations under ordinary partnership law. See Highland MSJ (ECF No. 190) at 8 n.22 (\\\"Everyone agrees that Citi can seek to recover CDO Fund's debts or liabilities from CDO Fund's General Partner, Highland GP, which Citi appropriately named in its counterclaims, in accordance with the law governing limited partnerships.\\\").\\n. As used herein, \\\"MSJ\\\" refers to the parties' respective memoranda of law in support of their motions for summary judgment and \\\"56.1\\\" refers to the parties' statements of undisputed fact pursuant to local rule 56.1.\\n. New York applies a separate choice-of-law rule for contract claims\\u2014the \\\"center of gravity\\\" or \\\"grouping of contacts\\\" analysis. See GlobalNet Financial-Com, Inc. v. Frank Crystal & Co., 449 F.3d 377, 383 (2d Cir. 2006). Neither party contends that such rule applies to Citi's veil piercing claims.\\n. Citibank, N.A. is a national banking association, organized under the laws of the United States, and has its principal place of business in New York City and its head office in South Dakota. Citigroup Global Markets Inc. is incorporated in New York and has its principal place of business in New York. Citigroup Financial Products Inc. is incorporated in Delaware and has its principal place of business in New York. Citigroup Global Markets Limited is organized in England and has it principal place of business in London. Citi's Am. Coun-tercl. (ECF No. 43) \\u00b6 8-11.\\n. Highland claims that the transaction was arm's length, but does not offer evidence sufficient to rebut the above testimony. For example, Highland claims that the transaction was approved by CDO Fund's independent committee. Highland's 56.1 \\u00b6 48. However, the committee does not appear to have been truly independent. Among other things, the same two members who comprised CDO Fund's independent committee also comprised the independent committees for the three other Highland funds that contributed to the HFP Notes. See Leventon Decl. (ECF No. 191), Ex. A-23. Moreover, those two individuals gave their approval on behalf of all four contributing funds collectively, id., belying the notion that the committees acted independently. Finally, one of the two independent committee members, Charles McQueary, testified that he was not even \\\"familiar with the entity Highland CDO Master Fund, LP.\\\" McCallum Decl. (ECF No. T99), Ex. 87 at 24:19-21. Rather, he believed that he served on HCM's valuation committee and was approving the pricing and value of instruments underlying certain transactions rather than the transactions themselves. Id. at 30:24-31:7. Highland's other evidence that the HFP Note transaction was arm's length\\u2014testimony from Citi's corporate representative that he did not believe that \\\"Citi specifically is claiming that [the HFP Note Transaction] . was not an arm's length transaction,\\\" Prudhomme Decl. (ECF No. 192), Ex. B-27 at 65:5-11\\u2014is also insufficient.\\n. \\\"Oral Arg, Tr.\\\" refers to the transcript of the oral argument held before the Court on the present motions on August 17, 2017.\\n. As noted above, the $8.1 million in asset transfers were to repay two obligations incurred by CDO Fund .on October 24, 2008, namely SOHC's covering of a $5.1 million margin call\\\" by UBS and HCM's loan of $3 million in cash. That same day, CDO Fund satisfied a $3 million margin call to Bank of America, which resulted in CDO Fund having a temporary negative cash balance. McCallum Deck (ECF No. 199), Ex. 47. Without the loans, CDO Fund would have had an end-of-the-day cash balance on October 24, 2008, of negative $6.4 million. See id. (CDO Fund's master cash flow spreadsheet showing end-of-the-day balance of $1,7 million for October 24, 2008, after inflow of $3 million cash from HCM).-\\n. The record shows that on November 4, 2008, one of the special purpose entities established to hold the assets underlying the HFP Notes received $10,8 million in cash, McCallum Deck (ECF No. 199), Ex. 136. HCM emails dated November 5, 2008, and November 6, 2008, suggest that the cash was distributed to HCM, including to satisfy a margin call on HFP, See Ex. McCallum Deck (ECF No. 199), 60; id., Ex. 136. Moreover, on January 29, 2009, HCM informed Citi that $9.3 million in cash that had been received on the a'ssets underlying the HFP Notes had been used for \\\"other purposes,\\\" '-'[plrimarily -to make required payments on other short term financing facilities.\\\" Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 189-90, 193. HCM does not explain what those \\\"short term financing facilities\\\" were, Citi also points to evidence \\u2022 showing that HFP (1) transferred $8 million cash, to HCM on November 5, 2008, id. \\u00b6 166; (2) transferred $3.7 million in cash to,Dondero's personal bank account on December 10, 2008, id. \\u00b6 170-71; and (3) at least intended (although it is not clear if HCM succeeded) to transfer $1.9 million tp Dondero's personal bank account on February 2, 2009, id. \\u00b6 195. However, it is not clear whether the cash transferred to HCM and Dondero is related, to the cash HFP received oh the HFP Note assets.\\n. We note two other issues with Citi's theory. First it is speculative, in that the first quarterly distribution on the HFP Notes was not due until February 15, 2009, by which time the notes were being unwound. As a result, Citi cannot say that HCM made certain that no cash would be available for distribution on the HFP Notes. Second, Citi released any claims against HFP and HCM relating to the HFP Notes when they were unwound. As a result, we doubt that Citi should be allowed to claim,' as a matter of equity, that HCM's otherwise released conduct constitutes a wrong for veil piercing purposes.\\n. Citi claims that it did not have the ability to value the life insurance contracts underlying the HFP Notes and therefore relied on ' HCM's representations regarding the HFP Notes' value. See Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 169. Highland disputes this claim. See Pl.'s Opp. 56.1 \\u00b6 169.\\n. Although Citi's present motion seeks summary judgment as to CDO Fund's liability on the counterclaims, the parties' briefing is devoted almost entirely to the issue of HCM's liability, with each party only devoting a footnote to the issue of counterclaim liability.\\n. Highland's conclusory statement that it raises various affirmative defenses to the counterclaims, including waiver, estoppel, election of remedies, unjust enrichment, and release, Highland's Opp. MSJ (ECF No. 208) at 4 n.2, is insufficient to defeat summary judgment.\\n. Nothing in this Memorandum and Order should be construed as addressing Citi's second counterclaim regarding distributions on certain Red River Preference Shares, see Citi's Am. Countercl. (ECF No. 43). \\u00b6 85-93, a counterclaim that neither party addressed and that does not appear to have been addressed in any of the numerous briefs submitted thus far in this case.\"}"
\ No newline at end of file
diff --git a/us/12429815.json b/us/12429815.json
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--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"12429815\", \"name\": \"Ekanem v. United States\", \"name_abbreviation\": \"Ekanem v. United States\", \"decision_date\": \"2013-01-14\", \"docket_number\": \"No. 12-7752\", \"first_page\": \"1137\", \"last_page\": \"1137\", \"citations\": \"568 U.S. 1137\", \"volume\": \"568\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:20:14.465461+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ekanem v. United States.\", \"head_matter\": \"No. 12-7752.\\nEkanem v. United States.\", \"word_count\": \"12\", \"char_count\": \"72\", \"text\": \"C. A. 5th Cir. Certiorari denied.\"}"
\ No newline at end of file
diff --git a/us/12437171.json b/us/12437171.json
new file mode 100644
index 0000000000000000000000000000000000000000..85c197b91f3cab2156f3f1e780b82290636a1125
--- /dev/null
+++ b/us/12437171.json
@@ -0,0 +1 @@
+"{\"id\": \"12437171\", \"name\": \"Marcos Moreno-Montano, Petitioner v. Greg Jacquert, et al.\", \"name_abbreviation\": \"Moreno-Montano v. Jacquert\", \"decision_date\": \"2010-10-04\", \"docket_number\": \"No. 10-5405\", \"first_page\": \"191\", \"last_page\": \"191\", \"citations\": \"178 L. Ed. 2d 191\", \"volume\": \"178\", \"reporter\": \"United States Supreme Court Reports, Lawyers' Edition\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:36:12.882006+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Marcos Moreno-Montano, Petitioner v. Greg Jacquert, et al.\", \"head_matter\": \"No. 10-5405.\\nMarcos Moreno-Montano, Petitioner v. Greg Jacquert, et al.\\n562 U.S. 920, 131 S. Ct. 291,\\n2010 U.S. LEXIS 7171.\\n178 L. Ed. 2d 191,\\nOctober 4, 2010.\", \"word_count\": \"53\", \"char_count\": \"297\", \"text\": \"Petition for writ of certiorari to the United States Court of Appeals for the Tenth Circuit denied.\\nSame case below, 376 Fed. Appx. 865.\"}"
\ No newline at end of file
diff --git a/us/12449338.json b/us/12449338.json
new file mode 100644
index 0000000000000000000000000000000000000000..cfa2baba9d777aec3749d31ada9580aebd9c4623
--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"12449338\", \"name\": \"David Roy Griffey, Petitioner v. United States\", \"name_abbreviation\": \"Griffey v. United States\", \"decision_date\": \"2010-05-17\", \"docket_number\": \"No. 09-9676\", \"first_page\": \"1196\", \"last_page\": \"1196\", \"citations\": \"176 L. Ed. 2d 1196\", \"volume\": \"176\", \"reporter\": \"United States Supreme Court Reports, Lawyers' Edition\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:41:11.214267+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"David Roy Griffey, Petitioner v. United States.\", \"head_matter\": \"No. 09-9676.\\nDavid Roy Griffey, Petitioner v. United States.\\n560 U.S. 911,130 S. Ct. 3290,\\n176 L. Ed. 2d 1196,\\n2010 U.S. LEXIS 4065.\\nMay 17, 2010.\", \"word_count\": \"50\", \"char_count\": \"283\", \"text\": \"Petition for writ of cer-tiorari to the United States Court of Appeals for the Eleventh Circuit denied.\\nSame case below, 589 F.3d 1363.\"}"
\ No newline at end of file
diff --git a/us/12450991.json b/us/12450991.json
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index 0000000000000000000000000000000000000000..8f7889e1af6f35ef35b70e51f199b54d2975325c
--- /dev/null
+++ b/us/12450991.json
@@ -0,0 +1 @@
+"{\"id\": \"12450991\", \"name\": \"Mark McCune, Petitioner v. Sigrid McCune\", \"name_abbreviation\": \"McCune v. McCune\", \"decision_date\": \"2011-06-27\", \"docket_number\": \"No. 10-10110\", \"first_page\": \"893\", \"last_page\": \"893\", \"citations\": \"180 L. Ed. 2d 893\", \"volume\": \"180\", \"reporter\": \"United States Supreme Court Reports, Lawyers' Edition\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T20:00:53.824783+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mark McCune, Petitioner v. Sigrid McCune.\", \"head_matter\": \"No. 10-10110.\\nMark McCune, Petitioner v. Sigrid McCune.\\n564 U.S. 1041, 131 S. Ct. 3066,\\n180 L. Ed. 2d 893,\\n2011 U.S. LEXIS 4820.\\nJune 27, 2011.\", \"word_count\": \"42\", \"char_count\": \"235\", \"text\": \"Petition for writ of cer-tiorari to the Court of Appeals of Arizona, Division Two, denied.\"}"
\ No newline at end of file
diff --git a/us/12455671.json b/us/12455671.json
new file mode 100644
index 0000000000000000000000000000000000000000..b0dc8b72b9ec31e38f4568468ac526a671dd4571
--- /dev/null
+++ b/us/12455671.json
@@ -0,0 +1 @@
+"{\"id\": \"12455671\", \"name\": \"Perry Pooler, Petitioner v. Burl Cain, Warden\", \"name_abbreviation\": \"Pooler v. Cain\", \"decision_date\": \"2010-06-28\", \"docket_number\": \"No. 09-10427\", \"first_page\": \"1100\", \"last_page\": \"1100\", \"citations\": \"177 L. Ed. 2d 1100\", \"volume\": \"177\", \"reporter\": \"United States Supreme Court Reports, Lawyers' Edition\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:52:46.411191+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Perry Pooler, Petitioner v. Burl Cain, Warden.\", \"head_matter\": \"No. 09-10427.\\nPerry Pooler, Petitioner v. Burl Cain, Warden.\\n561 U.S. 1030, 130 S. Ct. 3514,\\n177 L. Ed. 2d 1100,\\n2010 U.S. LEXIS 5414.\\nJune 28, 2010.\", \"word_count\": \"45\", \"char_count\": \"251\", \"text\": \"Petition for writ of cer-tiorari to the United States Court of Appeals for the Fifth Circuit denied.\"}"
\ No newline at end of file
diff --git a/us/12522019.json b/us/12522019.json
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index 0000000000000000000000000000000000000000..5d9c5dbd5decf13178ce422821b1d47ec9565195
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+"{\"id\": \"12522019\", \"name\": \"Marcus HAHN, Petitioner - Appellant, v. Warden Bonita MOSELEY, Federal Correctional Institution, Edgefield, South Carolina, Respondent - Appellee.\", \"name_abbreviation\": \"Hahn v. Moseley\", \"decision_date\": \"2019-07-24\", \"docket_number\": \"No. 18-6283\", \"first_page\": \"295\", \"last_page\": \"307\", \"citations\": \"931 F.3d 295\", \"volume\": \"931\", \"reporter\": \"Federal Reporter 3d Series\", \"court\": \"United States Court of Appeals for the Fourth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"Before GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.\", \"parties\": \"Marcus HAHN, Petitioner - Appellant,\\nv.\\nWarden Bonita MOSELEY, Federal Correctional Institution, Edgefield, South Carolina, Respondent - Appellee.\", \"head_matter\": \"Marcus HAHN, Petitioner - Appellant,\\nv.\\nWarden Bonita MOSELEY, Federal Correctional Institution, Edgefield, South Carolina, Respondent - Appellee.\\nNo. 18-6283\\nUnited States Court of Appeals, Fourth Circuit.\\nArgued: May 9, 2019\\nDecided: July 24, 2019\\nARGUED: Susan Michelle Pelletier, MUNGER, TOLLES & OLSON LLP, Washington, D.C., for Appellant. John Michael Pellettieri, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Chad Golder, MUNGER, TOLLES & OLSON LLP, Washington, D.C., for Appellant. Brian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney, General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Sherri A. Lydon, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.\\nBefore GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.\\nReversed and remanded with instructions by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Thacker joined. Judge Wynn wrote a concurring opinion.\", \"word_count\": \"5718\", \"char_count\": \"35480\", \"text\": \"GREGORY, Chief Judge:\\nPetitioner-Appellant Marcus Hahn appeals the final order of the district court denying his petition for a writ of habeas corpus under 28 U.S.C. \\u00a7 2241. Because Hahn's current sentence stems from faulty arithmetic based on a now-obsolete scheme of statutory interpretation, we conclude that Hahn's petition meets the requirements of 28 U.S.C. \\u00a7 2255(e), the savings clause. We therefore reverse the district court's order and remand with instructions to grant Hahn's writ of habeas corpus.\\nI.\\nOn December 31, 1999, law enforcement from various state and federal agencies executed a search warrant for Hahn's home near Albuquerque, New Mexico. Hahn was arrested after law enforcement discovered and seized marijuana plants and firearms during that search. On December 7, 2000, at the conclusion of a jury trial in the United States District Court for the District of New Mexico, a jury convicted Hahn of the following four counts: (1) intentionally manufacturing 100 or more marijuana plants; (2) opening and maintaining a place for the purpose of manufacturing, distributing, and using marijuana; (3) possessing firearms in furtherance of the intentional manufacturing of 100 or more marijuana plants; and (4) possessing a firearm in furtherance of the opening and maintaining a place for the purpose of manufacturing, distributing, and using marijuana. Counts III and IV are based on the same gun collection, which includes 21 firearms.\\nIn 2001, the district court sentenced Hahn to 480 months' imprisonment for these gun and drug offenses. He received 60 months' imprisonment for Count I, a concurrent 27 months for Count II, a consecutive 120 months for Count III, and a consecutive 300 months for Count IV.\\nIn 2002, on direct appeal to the Tenth Circuit, Hahn challenged the legality of his sentence for his second firearm conviction. He contended that the district court impermissibly treated his second firearm conviction as \\\"second or subsequent\\\" to his first firearm conviction for purposes of the statute's sentencing enhancement. Hahn I , 38 F. App'x at 554. Hahn argued that the court's approach was in error because the underlying drug crimes were part of a \\\"continuing incident\\\" and were \\\"coterminous in space and time.\\\" Id. The Tenth Circuit rejected this argument, relying principally on United States v. Sturmoski , 971 F.2d 452, 461 (10th Cir. 1992) (\\\"[C]onsecutive sentences may be imposed for multiple 924(c) counts if the offenses underlying each 924(c) count do not constitute a single offense for double jeopardy purposes.\\\"). Similar to Hahn, the defendant in Sturmoski appealed convictions for: (1) attempting to manufacture a controlled substance; (2) maintaining a place for manufacturing a controlled substance; and (3) two 18 U.S.C. \\u00a7 924(c) convictions for facilitating the aforementioned drug counts. Hahn I , 38 F. App'x at 555. The Sturmoski court held that \\\"Congress intended multiple convictions under 924(c), even though the counts involved 'the same criminal episode,' because Congress intended the underlying offenses to be separate.\\\" Id. After reviewing Sturmoski , the Tenth Circuit in Hahn's case found that \\\"[t]he only difference between the situations in Sturmoski and in this case is that one of Hahn's 924(c) convictions was for possession in furtherance of manufacture, rather than possession in furtherance of attempt to manufacture.\\\" Id. Given the factual and legal similarities between Sturmoski and Hahn's case, the court found that \\\" Sturmoski clearly controls the outcome of this case. Hahn's conviction for maintaining a place for manufacture is distinct from his manufacture conviction, and his two 924(c) convictions are also distinct.\\\" Id. The court further ruled that \\\"even if possession of a firearm occurs in connection with a single criminal episode, a second 924(c) conviction arising out of that episode can constitute a 'second or subsequent conviction' for sentencing purposes.\\\" Id. The Tenth Circuit therefore affirmed Hahn's convictions and sentence. Id.\\nIn 2004, Hahn filed a motion under 28 U.S.C. \\u00a7 2255 to vacate, set aside, or correct his sentence in the United States District Court of New Mexico. He argued that \\\"double jeopardy bars multiple \\u00a7 924(c)(1) firearm convictions based on multiple predicate offenses which are factually inseparable in terms of time, space and underlying conduct.\\\" United States v. Hahn , 191 F. App'x 758, 760 (10th Cir. 2006) (citation and internal quotation marks omitted) (\\\" Hahn II \\\"). Hahn also argued that \\\" \\u00a7 924(c)(1) contains a number of ambiguities, requiring application of the rule of lenity.\\\" Id. Hahn explained that he did not previously raise these arguments because he received ineffective assistance of counsel. The district court dismissed the motion in 2004, concluding that Hahn's arguments were procedurally barred and without merit. Id .\\nHahn filed a motion for reconsideration under Federal Rule of Civil Procedure 59(e). He disputed that his double jeopardy claim had been resolved on direct appeal and moved to amend his \\u00a7 2255 motion to add more evidence. Id. The district court treated these motions as successive \\u00a7 2255 motions and transferred them to the Tenth Circuit. Hahn appealed this determination, and the Tenth Circuit issued a certificate of appealability to consider Hahn's \\u00a7 924(c)(1) arguments. The Tenth Circuit subsequently affirmed the dismissal and held that: (1) Hahn forfeited his double jeopardy claim and it was procedurally barred because he did not raise it on direct appeal; (2) even if his double jeopardy claim was not procedurally barred, counsel's failure to raise it would not have constituted ineffective assistance of counsel because Sturmoski controls and renders Hahn's double jeopardy claim meritless; and (3) as to the ambiguity argument, a motion to vacate could not be used, absent an intervening change in circuit law, to raise an argument that was resolved on direct appeal. Hahn II , 191 F. App'x at 760-61.\\nIn 2015, Hahn filed a motion under Rule 60(b)(4), alleging that he was entitled to relief because of an en banc Tenth Circuit decision issued after the dismissal of his petition. United States v. Rentz , 777 F.3d 1105 (10th Cir. 2015). Hahn argued that Rentz altered the substantive law in the Tenth Circuit by establishing a new statutory framework interpreting \\u00a7 924(c). Specifically, Hahn contended that Rentz added a unit-of-prosecution requirement for a \\u00a7 924(c) conviction and therefore entitled him to relief denied under Sturmoski . Unit-of-prosecution questions ask whether the conduct at issue \\\"constitutes one, or several, violations of a single statutory provision.\\\" Callanan v. United States , 364 U.S. 587, 597, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961). In Rentz , the Tenth Circuit addressed the issue of whether, as a matter of statutory construction, \\u00a7 924(c) \\\"authorizes multiple charges when everyone admits there's only a single use, carry, or possession.\\\" 777 F.3d at 1108. After recognizing that this question was separate from the double jeopardy inquiry, the court ruled that each \\u00a7 924(c) charge \\\"requires an independent use, carry, or possession.\\\" Id. at 1115. Before Rentz , when Sturmoski was controlling law, multiple charges under \\u00a7 924(c) were permissible as long as they did not run afoul of the Double Jeopardy Clause. After Rentz , the Tenth Circuit, based on the language of the statute itself, held that multiple charges under \\u00a7 924(c) based on the same conduct were not proper even if they complied with the Double Jeopardy Clause. Thus, Rentz found that it was improper to allow multiple charges to arise from a single possession under the language of the statute. Id.\\nThe district court determined that Hahn's motion should be treated as a second or subsequent \\u00a7 2255 motion-i.e., a motion that could not be filed without precertification by the Court of Appeals-and transferred it to the Tenth Circuit. Hahn then filed a motion to remand before the Tenth Circuit to allow the district court to consider the merits of his Rule 60(b) motion or, in the alternative, for authorization to file a second or successive \\u00a7 2255 motion. The Tenth Circuit denied both the motion to remand and Hahn's request to file a second or successive \\u00a7 2255 motion based on a procedural impediment. Rentz was a Tenth Circuit decision, and thus did not meet the requirements for a second or subsequent motion.\\nAt some point after 2015, correctional officials transferred Hahn to a facility in South Carolina, where he is currently detained. Hahn filed the instant petition under 28 U.S.C. \\u00a7 2241 in the United States District Court for the District of South Carolina. Pursuant to \\u00a7 2241, federal courts have jurisdiction over habeas corpus petitions from federal inmates \\\"in custody in violation of the Constitution or laws or treaties of the United States.\\\" 28 U.S.C. \\u00a7 2241(c)(3). Habeas petitions filed under this section must be filed in the jurisdiction where the federal prisoner is detained. 28 U.S.C. \\u00a7 2241(a)(c)(3). Hahn's appeal is properly before us because he is detained in South Carolina.\\nHahn contended that he was actually statutorily innocent of his second \\u00a7 924(c) conviction after Rentz because the charge was procedurally improper. The magistrate judge issued a report that recommended denying Hahn's petition because Hahn could not meet the three-pronged test outlined in In re Jones , 226 F.3d 328, 333-34 (4th Cir. 2000). That case holds that \\\" \\u00a7 2255 is inadequate and ineffective to test the legality of a conviction\\\" where:\\n(1) at the time of the conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first \\u00a7 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of \\u00a7 2255 because the new rule is not one of constitutional law.\\nId . Hahn objected to the magistrate's report and recommendation, but the district court adopted the magistrate judge's recommendation and denied his petition. Hahn filed a Rule 59 motion to alter or amend the judgment. See Fed. R. Civ. P. 59(e). The district court denied the motion as without merit, and Hahn timely appealed.\\nII.\\nGenerally, defendants who are convicted in federal court must pursue habeas relief from their convictions and sentences through the procedures set out in 28 U.S.C. \\u00a7 2255. Rice v. Rivera , 617 F.3d 802, 807 (4th Cir. 2010). Nonetheless, \\u00a7 2255 includes a \\\"savings clause\\\" that preserves the availability of \\u00a7 2241 relief when \\u00a7 2255 proves \\\"inadequate or ineffective to test the legality of a [prisoner's] detention.\\\" 28 U.S.C. \\u00a7 2255(e).\\nAs the district court properly recognized, in determining whether to grant habeas relief under the savings clause, we consider (1) whether the conviction was proper under the settled law of this circuit or Supreme Court at the time;\\n(2) if the law of conviction changed after the prisoner's direct appeal and first \\u00a7 2255 motion; and (3) if the prisoner cannot meet the traditional \\u00a7 2255 standard because the change is not one of constitutional law. In re Jones , 226 F.3d at 333-34. In evaluating substantive claims under the savings clause, however, we look to the substantive law of the circuit where a defendant was convicted. In re Davenport , 147 F.3d 605, 611-12 (7th Cir. 1998) ; Eames v. Jones , 793 F. Supp. 2d 747, 750 (E.D.N.C. 2011). Hahn was convicted in the Tenth Circuit. For this reason, we apply our procedural law, but Tenth Circuit substantive law governs the petition. We review the district court's denial of Hahn's \\u00a7 2241 petition de novo . Fontanez v. O'Brien , 807 F.3d 84, 86 (4th Cir. 2015).\\nA.\\nThe first prong of In re Jones requires that \\\"at the time of conviction, settled law of the circuit or the Supreme Court established the legality of the conviction.\\\" 226 F.3d at 333-34. Here, the legality of the conviction turns on whether it was proper at the time to charge and convict Hahn with two \\u00a7 924(c) counts based on the possession of a single collection of firearms in both: (1) furtherance of intentionally manufacturing 100 or more marijuana plants and (2) the opening and maintaining of a place for the purpose of manufacturing, distributing, and using marijuana.\\nThere are two legal principles that may limit the Government's power to pursue multiple charges for the same underlying conduct in this case: (1) the statute's unit of prosecution and (2) the Double Jeopardy Clause. At the time of Hahn's conviction, Tenth Circuit law held that the only requirement for charging multiple \\u00a7 924(c)(1)(A) counts based on a single criminal event was that the crimes of violence or drug trafficking crimes underlying each count be separate to avoid violations of the Double Jeopardy Clause. See Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (explaining that the Double Jeopardy Clause prohibits punishing a defendant for the same conduct under two distinct statutory provisions unless \\\"each provision requires proof of a fact which the other does not\\\"). Sturmoski did not address any concerns regarding the statutory unit of prosecution.\\nIn Sturmoski , the Tenth Circuit rejected the defendant's argument that multiple \\u00a7 924(c) convictions for the same underlying conduct were impermissible, reasoning that \\\"separate convictions can arise from essentially identical facts\\\" if the convictions do not violate double jeopardy. 971 F.2d at 461. Sturmoski was the governing law at the time Hahn was charged and convicted. It follows, then, that at the time of conviction the settled law of the Tenth Circuit established the legality of Hahn's two convictions pursuant to the same conduct under \\u00a7 924(c). Hahn thus meets the first requirement of our savings clause inquiry.\\nB.\\nOur decision in In re Jones next requires that we ask whether \\\"subsequent to the prisoner's direct appeal and first \\u00a7 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal.\\\" 226 F.3d at 333-34. Hahn argues that the Tenth Circuit's 2015 decision in Rentz renders non-criminal the conduct on which his second \\u00a7 924(c) conviction was based. We must therefore determine whether the rule announced in Rentz establishes that the conduct underlying Hahn's second firearm conviction is no longer criminal. We hold that it does.\\nIn 2013, a panel of the Tenth Circuit heard United States v. Rentz , a case in which a defendant's single use of a firearm, resulting in one gun shot, led to convictions for two crimes: assault and murder. 735 F.3d 1245, 1247 (10th Cir. 2013). The grand jury indicted the defendant on two counts of use of a firearm in furtherance of a crime of violence, one for the assault and one for the murder. Id . The defendant moved to dismiss the second firearm count, arguing that: (1) Congress did not intend to punish a person for two violations of \\u00a7 924(c) based on a single use of a firearm and (2) punishment on both firearm counts would violate the Double Jeopardy Clause. Id. The district court agreed and granted the defendant's motion. Id.\\nOn appeal, the Tenth Circuit reversed. Id . at 1254. The panel, relying on Sturmoski , \\\"held that the proper 'unit of prosecution' under \\u00a7 924(c) is a single underlying offense-meaning that two convictions under \\u00a7 924(c) arising from the same course of conduct were proper under the language of \\u00a7 924(c).\\\" Id. at 1250.\\nThe Tenth Circuit later granted rehearing en banc to decide the unit of prosecution issue that led to the reversal of the district court's decision. See Rentz , 777 F.3d at 1117. The Tenth Circuit explained that the question presented was whether, as a \\\"matter of statutory interpretation, \\u00a7 924(c)(1)(A) authorizes multiple charges when everyone admits there's only a single use, carry, or possession.\\\" Id. at 1108. The court held that the Government must prove a separate use, carry, or possession for each \\u00a7 924(c) charge it brings. Id. at 1109. The court thus vacated the panel opinion relying on Sturmoski and affirmed the district court's decision. Id. at 1115.\\nHahn argues that the en banc decision in Rentz constitutes a substantial change in the law because it introduces a new statutory framework that was not present in Sturmoski . We agree. Under Sturmoski , whether or not conduct could lead to multiple charges under \\u00a7 924(c) in the Tenth Circuit depended solely on whether the charge violated the Double Jeopardy Clause. Now under Rentz , it is not enough that the multiple charges pass muster under the Double Jeopardy Clause. Rather, multiple charges must also comply with a unit-of-prosecution statutory analysis that examines how many distinct instances of conduct exist. When the charges or counts exceed the number of acts, those extra charges or counts cannot form the basis of additional criminal liability. In sum, Rentz constitutes a substantive change in the law that renders Hahn's firearm possession no longer sufficient to support two \\u00a7 924(c) convictions.\\nThe Government advances several arguments to the contrary, none of which we find persuasive. Relying on Schlup v. Delo , 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), the Government attempts to import a procedural gateway actual innocence analysis into the adjudication of Hahn's petition. The Government argues that Hahn must demonstrate actual innocence: that he did not commit the underlying conduct, i.e., possession of the firearms, in order to warrant relief under the savings clause. The Government asks us to utilize an analysis that requires a petitioner \\\"to support his allegations of constitutional error with new reliable evidence.\\\" Schlup , 513 U.S. at 324, 115 S.Ct. 851. This argument fails because the Fourth Circuit does not require an actual innocence analysis under the savings clause and adopting the Government's position would be contrary to the settled and established law of this Circuit. 226 F.3d at 333-34. The test in In re Jones functions as a gateway to relief without interrogating the factual issues of whether the underlying criminal activity occurred. In Re Jones assumes that the factual record is settled but requires this Court to compare prior and current precedent to evaluate whether a substantive change in the law has occurred. A petitioner satisfies this standard if the substantive change in the law makes previously illegal conduct no longer a source of criminal liability. In other words, our analysis is tethered to a change in the law, not a change in the factual underpinnings or evidence of a criminal record. If this substantive change in the law occurs after the prisoner's direct appeal and first \\u00a7 2255 motion, he satisfies the second requirement of the In re Jones standard. This is the standard that we use to ascertain a prisoner's entitlement to relief under the savings clause.\\nMoreover, the Government argues that Rentz does not control because there are factual differences between Sturmoski and Rentz that make them distinguishable. However, Rentz outlines a new statutory scheme of interpretation that is not a fact-dependent inquiry. Indeed, Rentz now defines and requires a unit-of-prosecution analysis in criminal matters implicating \\u00a7 924(c). The newly required analysis applies to any \\u00a7 924(c) charge regardless of the particular facts of the case.\\nThe Government further argues that Hahn's case involves multiple possessions and that the petition should therefore still be denied. We also find this argument unavailing. Hahn was charged with two counts based on a single gun collection that the police discovered at his home on a single day. The same firearm collection was listed in the indictment as support for both of the firearm counts. The Government argues that Hahn should still be found to have separate possessions under Rentz because the guns were found at different locations throughout his house. See United States v. Hutching , 75 F.3d 1453, 1460 (10th Cir. 1996). And yet we discern no cognizable relationship among the number of guns, the locations of the guns, and the number of \\u00a7 924(c) counts in Hahn's the indictment. For instance, the indictment did not charge that ten of the guns were for the furtherance of the manufacturing charge based on one location and that eleven of the guns were for the furtherance of the place-of-manufacture charge based on another location. The same set of 21 guns was simply listed twice in the indictment, indicating that the two counts were based on drug activity and a singular possession. Rentz renders this approach impermissible.\\nIn conclusion, Rentz substantively changed the law of the Tenth Circuit. Because of this change, Hahn's petition satisfies the second prong of In re Jones . Only one firearm possession exists, and therefore-under Rentz -only one \\u00a7 924(c) charge is proper here.\\nC.\\nFinally, our decision in In re Jones provides that Hahn can pursue \\u00a7 2241 relief only if he \\\"cannot satisfy the gatekeeping provisions of \\u00a7 2255 because the new rule is not one of constitutional law.\\\" 226 F.3d at 333-34. Hahn could not successfully pursue collateral review under \\u00a7 2255 because Rentz did not rely on any rule of constitutional law and no new evidence was proffered. Hahn thus meets the third and final requirement of the savings clause and is entitled to relief.\\nIII.\\nHahn's conviction on Count IV-the second of his \\u00a7 924(c) convictions-cannot stand because it is not supported by an independent firearm possession under recent Tenth Circuit precedent. We therefore reverse the district court's decision and remand with instructions to grant Hahn's writ of habeas corpus and vacate his second conviction under 18 U.S.C. \\u00a7 924(c) and the associated consecutive 300-month sentence.\\nREVERSED AND REMANDED WITH INSTRUCTIONS\\nThe Government requested that this Court stay the current proceedings in anticipation of the Supreme Court's decision whether to grant certiorari in United States v. Wheeler , 734 F. App'x 892 (4th Cir. 2018). The Government's request is moot because the Supreme Court denied certiorari in Wheeler on March 18, 2019. See United States v. Wheeler , - U.S. -, 139 S. Ct. 1318, 203 L.Ed.2d 600 (2019).\\nSee 21 U.S.C. \\u00a7 841(a)(1), (b)(1)(B), and 18 U.S.C. \\u00a7 2.\\nSee 21 U.S.C. \\u00a7 856 (a)(1), (b).\\nSee 18 U.S.C. \\u00a7 924(c)(1)(A).\\nId .\\nThe sentencing court characterized the Count IV firearm conviction as a \\\"second or subsequent\\\" conviction under \\u00a7 924(c), for which the statute mandated a consecutive sentence of twenty-five years. United States v. Hahn , 38 F. App'x 553, 554 (10th Cir. 2002) (\\\"Hahn I \\\").\\nThe district court had jurisdiction over Hahn's \\u00a7 2241 petition under 28 U.S.C. \\u00a7 1331. This Court has jurisdiction over this appeal under 28 U.S.C. \\u00a7 1291(a) and 2253(a).\\nThe Tenth Circuit did not rely upon a separate unit-of-prosecution analysis when determining the propriety of multiple charges or counts.\\nThe Government correctly notes that the Tenth Circuit in Rentz explains that the exact definition of possession, carry, and use remains unsettled. However, this does not diminish the Tenth Circuit's holding in Rentz that where, as here, the Government charges two \\u00a7 924(c) counts for the same single carry, use, or possession, the multiple charges are in error.\"}"
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+"{\"id\": \"1300342\", \"name\": \"TRISTRATA TECHNOLOGY, INC., Plaintiff-Appellee, v. ICN PHARMACEUTICALS, INC., Defendant-Appellant\", \"name_abbreviation\": \"Tristrata Technology, Inc. v. ICN Pharmaceuticals, Inc.\", \"decision_date\": \"2004-06-08\", \"docket_number\": \"No. 04-1388\", \"first_page\": \"341\", \"last_page\": \"341\", \"citations\": \"101 F. App'x 341\", \"volume\": \"101\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Federal Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:57:26.130768+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TRISTRATA TECHNOLOGY, INC., Plaintiff-Appellee, v. ICN PHARMACEUTICALS, INC., Defendant-Appellant.\", \"head_matter\": \"TRISTRATA TECHNOLOGY, INC., Plaintiff-Appellee, v. ICN PHARMACEUTICALS, INC., Defendant-Appellant.\\nNo. 04-1388.\\nUnited States Court of Appeals, Federal Circuit.\\nJune 8, 2004.\\nRaymond A. Kurz, Principal Attorney, Hogan & Hartson, Washington, DC, for f\\u2019 \\u2019 s \\u2019 \\u2019 Defendant-Appellant.\\nMichael O. Warnecke, Principal Attorney, Mayer, Brown, Chicago, IL, for Plaintiff-Appellee.\", \"word_count\": \"65\", \"char_count\": \"484\", \"text\": \"ORDER\\nThe parties having so agreed, it is\\nORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).\"}"
\ No newline at end of file
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+"{\"id\": \"1417286\", \"name\": \"Sergio JASSO, Petitioner, v. John ASHCROFT, Attorney General, Respondent\", \"name_abbreviation\": \"Jasso v. Ashcroft\", \"decision_date\": \"2005-01-13\", \"docket_number\": \"No. 03-71043; Agency No. A76-844-175\", \"first_page\": \"318\", \"last_page\": \"319\", \"citations\": \"118 F. App'x 318\", \"volume\": \"118\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Ninth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T19:33:37.376946+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BEEZER, HALL, and SILVERMAN, Circuit Judges.\", \"parties\": \"Sergio JASSO, Petitioner, v. John ASHCROFT, Attorney General, Respondent.\", \"head_matter\": \"Sergio JASSO, Petitioner, v. John ASHCROFT, Attorney General, Respondent.\\nNo. 03-71043.\\nAgency No. [ AXX-XXX-XXX ].\\nUnited States Court of Appeals, Ninth Circuit.\\nSubmitted Jan. 10, 2005.\\nDecided Jan. 13, 2005.\\nSergio Jasso, Escal\\u00f3n, CA, pro se.\\nRegional Counsel, Western Region Immigration & Naturalization Service, Laguna Niguel, CA, Timothy P. Mcllmail, U.S. Department of Justice Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.\\nBefore BEEZER, HALL, and SILVERMAN, Circuit Judges.\\nThe panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).\", \"word_count\": \"440\", \"char_count\": \"2848\", \"text\": \"MEMORANDUM\\nSergio Jasso, a native and citizen of Mexico, petitions pro se for review of the decision of the Board of Immigration Appeals (\\\"BIA\\\") dismissing his appeal from the Immigration Judge's (\\\"IJ\\\") decision denying his applications for asylum, withholding of removal, and cancellation of' removal. We have jurisdiction under 8 U.S.C. \\u00a7 1252 to review the denial of Jasso's application for asylum and withholding of removal. We review the BIA's factual findings for substantial evidence. Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.2004). We deny in part, and dismiss in part the petition for review.\\nThe record does not compel a finding that Jasso satisfied his burden of proving past persecution. See Prasad v. INS, 47 F.3d 336, 340 (9th Cir.1995). In addition, substantial evidence supports the BIA's conclusion that Jasso did not demonstrate an objectively reasonable fear of future persecution. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir.2003). Accordingly, Jasso necessarily failed to satisfy the more stringent standard for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).\\nWe lack jurisdiction to review Jasso's challenge to the BIA's denial of his cancellation application for failure to demonstrate the requisite \\\"exceptional and extremely unusual hardship.\\\" See 8 U.S.C. \\u00a7 1252(a)(2)(B); Romero-Torres v. Ashcroft, 327 F.3d 887, 888 (9th Cir.2003) (holding that \\\"an 'exceptional and extremely unusual hardship' determination is a subjective, discretionary judgment that has been carved out of our appellate jurisdiction.\\\"). Accordingly, we dismiss this portion of the petition for review.\\nPursuant to Desta v. Ashcroft, 365 F.3d 741 (9th Cir.2004), Jasso's motion for stay of removal included a timely request for stay of voluntary departure. Because the stay of removal was granted, the voluntary departure period was also stayed, nunc pro tunc, as of the filing of the motion for stay of removal and this stay will expire upon issuance of the mandate.\\nPETITION FOR REVIEW DENIED in part and DISMISSED in part.\\nThis disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.\"}"
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+"{\"id\": \"141905\", \"name\": \"Ramon Duran HERNANDEZ, Petitioner, v. John ASHCROFT, United States Attorney General, Michael Heston, District Director, Immigration and Naturalization Service, and James W. Ziglar, Immigration and Naturalization Service, Respondents\", \"name_abbreviation\": \"Hernandez v. Ashcroft\", \"decision_date\": \"2003-07-21\", \"docket_number\": \"No. 02-9513\", \"first_page\": \"764\", \"last_page\": \"768\", \"citations\": \"72 F. App'x 764\", \"volume\": \"72\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Tenth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:53:57.417514+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ramon Duran HERNANDEZ, Petitioner, v. John ASHCROFT, United States Attorney General, Michael Heston, District Director, Immigration and Naturalization Service, and James W. Ziglar, Immigration and Naturalization Service, Respondents.\", \"head_matter\": \"Ramon Duran HERNANDEZ, Petitioner, v. John ASHCROFT, United States Attorney General, Michael Heston, District Director, Immigration and Naturalization Service, and James W. Ziglar, Immigration and Naturalization Service, Respondents.\\nNo. 02-9513.\\nUnited States Court of Appeals, Tenth Circuit.\\nJuly 21, 2003.\\nJames S. Phillips, Jr., Phillips & Phillips, Wichita, KS, for Petitioner.\\nTanya S. Wilson, Office of the United States Attorney, Topeka, KS, Linda S. Wendtland, A. Ashley Tabaddor, Cindy Ferrier, General Counsel, Washington, DC, Mike Comfort, Acting Dist. Dir., Immigration & Naturalization Service, Denver, CO, Pap\\u00fa Sandhu, Office of Immigration Litigation, Washington, DC, for Respondents.\\nBefore TACHA, Chief Judge, HOLLOWAY and EBEL, Circuit Judges.\\nPublished in full, see 2003 WL 22438587.\", \"word_count\": \"2461\", \"char_count\": \"14787\", \"text\": \"ORDER AND JUDGMENT\\nEBEL, Circuit Judge.\\nPetitioner Ramon Duran Hernandez (hereinafter \\\"Duran\\\"), a Mexican citizen, was ordered removed from the United States in 1998 after he falsely claimed United States citizenship at the U.S.\\u2014 Mexico border. He was barred from reentering the country for five years. Only two years later, however, Duran reentered the United States illegally and thereafter applied for adjustment of his immigration status. The Immigration and Naturalization Service rejected his application and reinstated his prior removal order.\\nDuran, represented by counsel, filed a habeas corpus petition in the United States District Court for the District of Kansas, challenging the INS's reinstatement procedures on due process grounds. The district court, adopting the recommendation of a magistrate judge, transferred the petition to this Court pursuant to 28 U.S.C. \\u00a7 1631. Both parties assume, and we agree, that the petition is now before us as a direct appeal from the INS adjudication.\\nBecause we find that Duran has failed to prove that he was prejudiced by the INS's reinstatement proceedings, we AFFIRM the decision of the INS.\\nBACKGROUND\\nOn April 12, 1998, Mexican national Ramon Duran Hernandez was caught attempting to enter the United States illegally with his American citizen wife at the Presidio, Texas, Point of Entry. Later that day, in a signed, sworn statement to an INS officer, Duran admitted that he was not a U.S. citizen and that both he and his wife had falsely claimed that he was a U.S. citizen when they tried to cross the border that morning. Duran admitted knowing that it was a crime to falsely claim U.S. citizenship. Duran also admitted to having lived illegally in the United States for 10 years prior to his reentry attempt and to having been previously ordered deported in 1997.\\nThat same day, the INS found that Duran was inadmissible to the United States under the Immigration and Nationality Act (\\\"INA\\\"), which renders inadmissible any alien who falsely represents his United States citizenship. Immigration and Nationality Act \\u00a7 212(a)(6)(C)(ii), 8 U.S.C. \\u00a7 1182(a)(6)(C)(ii). Pursuant to the applicable provision of the INA, the INS ordered Duran returned to Mexico. 8 U.S.C. \\u00a7 1225(b)(l)(A)(i), INA \\u00a7 235(b)(l)(A)(i). The INS gave Duran a written notice stating that 1) he was barred from reentering the United States for five years from the date of his departure (April 12, 1998); 2) if he wished to reenter the United States before the end of that five-year period, he must ask for and receive permission to do so from the Attorney General (by using application forms available at any U.S. Consulate or INS office); and 3) that he could be criminally prosecuted for reentering without such permission. Duran signed the notice and walked back to Mexico.\\nOn January 15, 2000 \\u2014 within the five-year ban \\u2014 Duran again illegally entered the United States by walking through the desert near El Paso, Texas, in violation of 8 U.S.C. \\u00a7 1182(a)(9) (A) (i), INA \\u00a7 212(a)(9)(A)(i). He was not caught at that time and remained in the United States.\\nOn April 13, 2001, Duran applied (through his wife) for adjustment of status based on his 1997 marriage to an American citizen, under 8 U.S.C. \\u00a7 1255(i), INA \\u00a7 245(i ) Eight months later, on December 18, 2001, the INS denied Duran's application. To be eligible for adjustment of status, an alien must be \\\"admissible to the United States for permanent residence.\\\" 8 U.S.C. \\u00a7 1255(i )(2)(A), INA \\u00a7 245(i )(2)(A). Because Duran had reentered the United States within the five-year ban and without first applying to the Attorney General for permission, the INS found that Duran was not \\\"admissible to the United States for permanent residence\\\" and therefore was ineligible to have his status adjusted. The INS also noted that Duran had admitted to having illegally entered the United States ten years before his 1998 attempt.\\nThe next day \\u2014 December 19, 2001 \\u2014 the INS began and concluded the process of reinstating Duran's 1998 removal order. During that process, Duran gave a second sworn statement to the INS. Before he gave that statement, he signed a section of the Sworn Statement form acknowledging that he understood his rights, that anything he said could be used against him, and that he did not wish to consult with a lawyer. In his handwritten answers to preprinted questions on the Sworn Statement form, Duran admitted, inter alia, 1) that he had been deported on April 12, 1998; 2) that he last entered the United States on January 15, 2000, \\\"near El Paso, TX. walking in the desert\\\"; and 3) that he never applied to the U.S. Attorney General for permission to reenter the country after his initial deportation.\\nThat same day (December 19, 2001), the INS had Duran sign a Notice of Intent/Decision to Reinstate Prior Order, which stated that the INS would be reinstating its April 12, 1998 removal order pursuant to 8 U.S.C. \\u00a7 1231(a)(5), INA \\u00a7 241(a)(5). That statute \\u2014 which is at the core of Duran's appeal \\u2014 states as follows:\\n(5) Reinstatement of removal orders against aliens illegally reentering. If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this Act, and the alien shall be removed under the prior order at any time after the reentry.\\n8 U.S.C. \\u00a7 1231(a)(5), INA \\u00a7 241(a)(5) (emphasis added). The Notice form informed Duran that he \\\"may contest this determination by making written or oral statement [sic] to an immigration officer. You do not have the right to a hearing before an immigration judge.\\\" Duran checked a box stating that he did not wish to make a statement, and he signed the form. The INS then issued its final reinstatement decision, which consisted of an INS official's signature under one sentence of preprinted text that stated, \\\"Having reviewed all available evidence, the administrative file and any statements made or submitted in rebuttal, I have determined that the above-named alien is subject to removal through reinstatementof [sic] the prior order, in accordance with section [illegible on the blurred copy in the record, but presumably \\u00a7 241(a)(5) ] of this Act.\\\"\\nOn December 31, 2001, Duran filed (through counsel) a habeas corpus petition with the United States District Court for the District of Kansas. First, he challenged the constitutionality of the INA's reinstatement provisions as violative of his due process rights. Second, he challenged the INS's purported failure to pursue his application for adjustment of status before reinstating the prior removal order. A magistrate judge recommended that the case be transferred to the Court of Appeals, because \\\"reinstatement is actually the enforcement of a prior final removal order,\\\" over which the Court of Appeals has exclusive jurisdiction. Citing Castro-Cortez v. INS, 239 F.3d 1037, 1046 (9th Cir.2001), the magistrate judge concluded that transfer, rather than dismissal, was appropriate \\\"because jurisdiction in these cases has been in a state of flux.\\\" The district court agreed and ordered the case transferred to the Tenth Circuit.\\nDISCUSSION\\nCongress has declared that petitions for review of INS orders of removal must be filed \\\"with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.\\\" 8 U.S.C. \\u00a7 1252(b)(2), INA \\u00a7 242(b)(2). Duran did not follow this procedure; rather, he bypassed direct review and filed a habeas corpus petition (his first error) in the district court (his second error) under 28 U.S.C. \\u00a7 2241. The district court then transferred that petition to the Tenth Circuit under the transfer statute, 28 U.S.C. \\u00a7 1631, which permits a court to transfer a case where there is \\\"a want of jurisdiction\\\" and transfer would be \\\"in the interest of justice.\\\" Id. The district court's use of the transfer statute cures Duran's second error, the filing of his petition in the district court as opposed to the Tenth Circuit. That leaves us with only his first error\\u2014 filing a habeas petition instead of a direct appeal \\u2014 to consider. Both parties proceed as if Duran had properly filed a direct appeal with this court. In the interests of justice, we will also treat Duran's petition as if it had been so filed and review it as a direct appeal of the INS's action. See Lopez v. Heinauer, 332 F.3d 507, 510-11 (8th Cir.2003); Batista v. Ashcroft, 270 F.3d 8, 12 (1st Cir.2001); Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir.2001).\\nTurning to the merits of Duran's appeal, his due process claim fails because he has not proven that he suffered prejudice as a result of the INS's reinstatement procedures. The regulation governing reinstatement of removal orders, 8 C.F.R. \\u00a7 241.8(a), directs an immigration officer to determine three facts before reinstating a prior order of removal: 1) whether the alien was subject to a prior order of removal; 2) whether the alien is the same alien who was previously removed; and 3) whether the alien illegally reentered the United States. Because Duran contests none of these facts, he cannot prove that additional procedural safeguards would have changed the result in his case. This failure to prove prejudice leads us to reject Duran's due process claim. See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 302 (5th Cir.2002); United States v. Garcia-Martinez, 228 F.3d 956, 964 n. 10 (9th Cir.2000); Salazar v. Ashcroft, 38 Fed.Appx. 812, 814 (3d Cir.2002).\\nWe also reject Duran's adjustment of status claim. Duran asserts that the INS reinstated his removal order before it adjudicated his adjustment of status application. The record proves that the opposite is true: the INS adjudicated and rejected Duran's adjustment of status application on December 18, 2001, and it reinstated his removal order one day later, on December 19, 2001. Duran's claim to the contrary clearly lacks merit.\\nFor the foregoing reasons, we AFFIRM the decision of the INS.\\nThis order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This 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.\\n. That statute allows an alien who is physically present in the United States to apply to the Attorney General for adjustment of status upon submission of a $1,000 application fee. 8 U.S.C. \\u00a7 1255(i)(l)(C), INA \\u00a7 245(t )(1)(C).\\nUpon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if \\u2014 (A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and (B) an immigrant visa is immediately available to the alien at the time the application is filed.\\n8 U.S.C. \\u00a7 1255(0(2), INA \\u00a7 245(0(2) (emphasis added).\\n. On April 5, 2002, Duran filed an emergency motion for a stay of deportation pending appeal, as he was to be deported to Mexico later that day. In an April 5 Order, we denied the motion. Although neither the parties nor the record mention Duran's current whereabouts, we presume that he is now back in Mexico.\\n. Although \\u00a7 1252 speaks specifically of judicial review of \\\"orders of removal,\\\" every circuit to address the question has found \\u00a7 1252 to cover review of reinstatement orders as well. See, e.g., Gomez-Chavez v. Perryman, 308 F.3d 796, 801 (7th Cir.2002); Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 295 (5th Cir.2002); Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 861, 868 (8th Cir.2002); Bejjani v. INS, 271 F.3d 670, 674 (6th Cir.2001); Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 105 (4th Cir.2001); Castro-Cortez v. INS, 239 F.3d 1037, 1043 (9th Cir.2001).\\nOur Circuit has two conflicting unpublished opinions regarding this issue. Compare Lopez-Herrera v. INS, No. 00-9501, 2000 WL 91946, at *1, 2000 U.S.App. LEXIS 774, at *3 (10th Cir. Jan. 20, 2000), (\\\"[Tjhis court is specifically barred from reviewing the agency's reinstatement of a prior deportation order.\\\"), with Yanez-Torres v. INS, No. 99-9504, 2000 WL 130801, at *1, 2000 U.S.App. LEXIS 1525 (10th Cir. Feb. 4, 2000), (\\\"We have jurisdiction to review the final order reinstating the 1981 deportation order under 8 U.S.C. \\u00a7 1252(a)(1)....\\\"). We recognize that unpublished decisions are not binding authority, United States v. Goff, 314 F.3d 1248, 1250 (10th Cir.2003), and therefore follow the weight of authority in other circuits and our own opinion in Yanez-Torres. Accordingly, we hold that we have jurisdiction to hear petitions for direct review of reinstatement orders under 8 U.S.C. \\u00a7 1252, INA \\u00a7 242.\\n. We note that Duran's petition, although filed in the wrong court, was timely. Petitions for review of orders of removal must be filed within thirty days of the date of the final order of removal. 8 U.S.C. \\u00a7 1252(b)(1), INA \\u00a7 242(b)(1). Petitioner's reinstatement order became final on December 19, 2001, and he filed his habeas petition twelve days later, on December 31, 2001.\\n. Duran's brief states, \\\"Petitioner originally filed a habeas corpus action while incarcerated in Kansas, but the United States District Court ordered the case transferred to the Tenth Circuit Court of Appeals. The case is now proceeding as a petition for review of the agency action.\\\" Pet. Br. at 2 (emphasis added). For its part, the Government's brief states, \\\"A district court transferred Duran's case (initially brought as a habeas petition) to this Court under 28 U.S.C. \\u00a7 1631.... This Court has jurisdiction to review the INS' reinstatement order pursuant to Section 242(a)(1) of the INA, 8 U.S.C. \\u00a7 1252(a)(1).\\\" Gov't Br. at 2 (emphasis added).\"}"
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+"{\"id\": \"1451653\", \"name\": \"SIT JAY SING, Plaintiff, v. H. D. NICE, as District Director of the Immigration and Naturalization Service, San Francisco District, and Paul Posz, as Regional Commissioner of the Immigration and Naturalization Service, Southwest Region, Defendants\", \"name_abbreviation\": \"Sit Jay Sing v. Nice\", \"decision_date\": \"1960-03-11\", \"docket_number\": \"Civ. No. 38745\", \"first_page\": \"292\", \"last_page\": \"297\", \"citations\": \"182 F. Supp. 292\", \"volume\": \"182\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the Northern District of California\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:52:30.747423+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SIT JAY SING, Plaintiff, v. H. D. NICE, as District Director of the Immigration and Naturalization Service, San Francisco District, and Paul Posz, as Regional Commissioner of the Immigration and Naturalization Service, Southwest Region, Defendants.\", \"head_matter\": \"SIT JAY SING, Plaintiff, v. H. D. NICE, as District Director of the Immigration and Naturalization Service, San Francisco District, and Paul Posz, as Regional Commissioner of the Immigration and Naturalization Service, Southwest Region, Defendants.\\nCiv. No. 38745.\\nUnited States District Court N. D. California, S. D.\\nMarch 11, 1960.\\nRobert S. Bixby, Fallon, Hargreaves & Bixby, San Francisco, Cal., for plaintiff.\\nLynn J. Gillard, U. S. Atty., Charles E. Collett, Asst. U. S. Atty., San Francisco, Cal., for defendants.\", \"word_count\": \"2956\", \"char_count\": \"17283\", \"text\": \"YOUNGDAHL, District Judge.\\nThis action for a declaratory judgment came on to be heard on cross-motions for summary judgment. Since the material facts are not in dispute and only a question of law is involved the Court is free to grant summary judgment.\\nPlaintiff, \\\"a native and citizen of the Republic of China\\\", seeks a decision that his application to the Immigration and Naturalization Service (hereinafter referred to as the Service) for adjustment of his status to that of a permanent resident alien, under \\u00a7 249 of the Immigration and Nationality Act of June 27, 1952, 8 U.S.C.A. \\u00a7 1259, as amended, may not be denied on the ground that he has failed to reside continuously in the United States since a date prior to June 28, 1940. Paragraph (b) of this provision sets forth the second of four prerequisites to the exercise of the Attorney-General's discretion. The plaintiff asks the Court to hold that he has satisfied this prerequisite.\\nPlaintiff first entered the United States on June 17, 1939, at which time he was thirty-five years of age. This entry was as a non-immigrant crewman. He overstayed his shore leave and on June 26, 1942, a warrant for arrest in deportation proceedings was served on him. A hearing was accorded and on February 12, 1943 he was ordered deported. Because of the war, the order was stayed and the plaintiff was permitted to remain in the United States on bond.\\nOn September 22, 1945, the plaintiff sailed as a seaman from San Francisco aboard the S.S. \\\"Fra Berlanga\\\", a vessel of United States registry; on November 13, 1945; after a foreign voyage, the \\\"Fra Berlanga\\\", with plaintiff aboard, entered the United States at Seattle, Washington. When the plaintiff sailed on September 22, 1945, the Service noted \\\"executed\\\" on the warrant of deportation which had issued on February 12, 1943 and added \\\"Note: This alien departed at no expense to Government as member of crew on above-named vessel [Fra Berlanga].\\\"\\nThe narrow issue presented by this case is whether plaintiff's voyage, coming at a time when a warrant of deportation was outstanding against him, interrupted the continuous residence he had established in the United States since June 17, 1939. Plaintiff concedes that \\\"by voluntarily departing from the United States at a time when a warrant for his deportation was outstanding [he] effected his own deportation.\\\" The argument is made, however, that an interruption in residency does not automatically and always result from a deportation. While \\\"deportation does interrupt residence in the overwhelming majority of cases\\\", contends plaintiff, it does not do so in this case because plaintiff departed voluntarily aboard a vessel of United States registry.\\nThe plaintiff places his principal reliance upon Matter of M-, 4 I & N Adm. Dec. 82 (Oct. 9,1950) in which the Board of Immigration Appeals held that a departure from the United States one week prior to the expiration of seven years from the date of the alien's entry did not preclude favorable action under the 7th proviso to \\u00a7 3 of the Immigration Act of February 5, 1917, even though at the time of the alien's departure, a warrant of deportation was outstanding against him.\\nThe statutory provision involved in Matter of M- reads:\\n\\\" aliens returning after a temporary absence to an unrelin-quished United States domicile of seven consecutive years may be admitted in the discretion of the Attorney General, and under such conditions as he may prescribe.\\\"\\nEven assuming that \\\"domicile\\\" in the 7th proviso means the same thing as \\\"residence\\\" in \\u00a7 249, the Court does not believe Matter of M- is applicable here.\\nFirst, a later administrative decision, Matter of P-, Int.Dec. No. 976 (October 16, 1958) squarely holds that \\\"a departure from the United States as a result of exclusion or expulsion proceedings breaks the continuity of residence for the purpose of section 249, regardless of the period of time the alien is outside the United States after such departure\\\".\\nSecond, it would not be appropriate to accept the plaintiff's contention in light of the history of \\u00a7 249 and its evident purpose. \\u00a7 249 was first enacted into law on March 2, 1929. It provides for the making of a record of admission for permanent residence of an alien; its purpose was to \\\"provide relief for aliens who entered the United States prior to July 1, 1924 [now June 28, 1940], where there is inability to locate a record of their permanent admission in conformity with the immigration law at the time of their entry\\\". The Act of June 29, 1906 required that a reg istry be made of certain facts concerning each alien arriving in the United States and that \\\"a certificate of such registry, with the particulars thereof\\\" be granted to each alien. \\u00a7 249 was passed in order to permit the naturalization, at the discretion of the Government, of aliens who did not possess this certificate of registry \\u2014 a certificate which was required for naturalization. The alien might not have the certificate because he entered unlawfully, or he might not have it because, even though his entry was lawful, his records were lost. For illustrative cases see United States v. Ness, 1917, 245 U.S. 319, 38 S.Ct. 118, 62 L.Ed. 321; Linklater v. Perkins, 1934, 64 App.D.C. 69, 74 F.2d 473. In short, \\u00a7 249 is an ameliorative provision; it appears to have been designed to aid a person who has formed a substantial tie to the United States and who should not, if we are to remain humane, be automatically denied naturalization because of his inability to furnish the certificate. \\u00a7 249 would not appear to be particularly pertinent to a seaman whom the Government had deported, whose wife and children live in a foreign country (Japan), and whose claim to remain in the United States results from a record of continuous shore leave violations.\\nA third reason why Matter of M- is inapplicable can be seen from an exam\\u00ednation of the Board's disposition, towards the factual backdrop: M- was married to a native-born citizen of the United States; he was supporting his wife and her child by a prior marriage; they were about to adopt another child; and, most importantly, his departure was only one week short of the seven-year period. The Board expressly stated: \\\"The equities are all with the respondent\\\" (p. 92) and the law in Matter of M- must be read in light of this statement.\\nIf the plaintiff had been deported in 1945 at Government expense, he could not satisfy \\u00a7 249. Simply because the Government permitted him to leave at his own expense does not mean a different result should obtain. Clearly, this latter procedure was preferred by the plaintiff. In September, 1945, the war had ended and he was amenable to deportation to China. Instead of this, he desired to ship out as a seaman. The Government does not appear to have had any reason to insist that it pay his way back to China and thus did not object to his leaving aboard the \\\"Fra Berlanga\\\". But the Government's consent to the method of deportation does not lessen the force of the deportation; it does not make plaintiff's deportation something less than a Government-paid-for deportation.\\nThe plaintiff's motion for a summary judgment is denied.\\nThe defendants' motion for a summary judgment is granted.\\nAn order accompanies this memorandum.\\n. Complaint, paragraph II, to which the defendants' answer states: \\\"no information or belief.\\\"\\n. \\\"Record of admission for permanent residence in the case of certain aliens who entered the United States prior to June 28, 1940.\\n\\\"A record of lawful admission for permanent residence may, in the discretion of the Attorney General and under such regulations as he may prescribe, be made in the case of any alien, as of the date of the approval of his application or, if entry occurred prior to July 1, 1924, as of the date of such entry, if no such record is otherwise available and such alien shall satisfy the Attorney General that he is not inadmissible under section 1182 (a) of this title insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens, and he establishes that he\\u2014\\n\\\"(a) entered the United States prior to June 28, 1940;\\n\\\"(b) has had his residence in the United States continuously since such entry;\\n\\\"(c) is a person of good moral character; and\\n\\\"(d) is not ineligible to citizenship.\\\" (72 Stat. 546)\\n. Both the plaintiff and the defendants agree that this was the plaintiff's initial entry into the United States.\\nPlaintiff need establish continuous residence in the United States only from June 27, 1940. Note 2, supra. Hence, a Question and answer at p. 2 of a sworn statement made by plaintiff on September 11, 1952 to the Service becomes irrelevant :\\n\\\"Q. How, when and where did you enter the United States the first time?\\nA. In 1924 in San Francisco as a seaman.\\\"\\n. In addition, the Order granted a waiver of inadmissibility under the 9th proviso of \\u00a7 3 of the Act of February 5, 1917, 8 U.S.C.A. \\u00a7 1182(d) (3) for entry into the United States from time to time as a bona fide crewman. And see \\u00a7 3(5) of the Act of May 26, 1924, 8 U.S.C.A. \\u00a3 1101(a) (15) (D).\\n. The Service does not question that the plaintiff was a \\\"resident\\\" in the United States from June 17, 1939 to September 22, 1945, within the meaning of \\u00a7 249.\\nFollowing 1945, the plaintiff continued to sail aboard vessels and was admitted to the United States at various times as a crewman under the provisions of \\u00a7 3(5) of the Act of May 26, 1924. On June 4, 1951, plaintiff was admitted to San Francisco under \\u00a7 3(5) for a period of twenty-nine days. On July 17,1951, he applied for suspension of deportation under the provisions of \\u00a7 19(0) of the Act of February 5,1917. A warrant of arrest in deportation proceedings was issued on September 17, 1951, but the plaintiff voluntarily departed before service.\\nOn September 12, 1952, he applied for permission to reapply after arrest and deportation, but this was denied on January 12, 1953 and no appeal was taken.\\nOn January 3, 1954, the plaintiff entered the United States under \\u00a7 252(a) of the Act of June 27, 1952, 8 U.S.O.A. \\u00a7 1282(a), and on February 9, 1954, the 29-day shore leave having expired, a warrant of arrest in deportation was issued charging that at the time of entry the plaintiff was inadmissible because he had been arrested and deported and had not been granted permission to re-apply. A hearing was held on February 10, 1954 and the plaintiff was allowed to depart at his own expense. No appeal was taken. Plaintiff departed on March 20, 1954 as a crewman.\\nOn June 30, 1954, plaintiff applied for permission to reapply for admission after deportation and permission was granted on June 30, 1954. However, plaintiff did not pursue the matter but, rather, shipped out.\\nOn December 13, 1957, plaintiff was admitted to the United States as a crewman for 29 days. Having overstayed this period, an order to show cause in deportation proceedings was issued on February 17, 1958. A hearing was held on February 26, 1958 and, once again, plaintiff was given the privilege of departing voluntarily. He departed on March 22, 1958.\\nOn December 2, 1958, the plaintiff filed the instant application. He alleged that he resided continuously in the United States since June 17,1939 and he requested \\u00a7 249 relief. The application was denied by the District Director on January 19, 1959 on the ground that plaintiff's departure on September 22, 1945 constituted a break in residence. Plaintiff appealed to the Regional Commissioner who, on April 13, 1959, affirmed the District Director's order. A further appeal was taken and on October 20, 1959, the Assistant Commissioner affirmed, holding that plaintiff's voluntary departure at a time when a warrant of deportation was outstanding constituted a deportation and \\\"[therefore, the continuity of his residence was broken.\\\" An additional ground was given: from November, 1945 to November, 1958, the plaintiff entered the United States as a non-immigrant crewman and on several occasions stated to the Service that he intended to reship as a crewman; the application form did not show a place of residence in the United States during this period but set forth only a mail drop. Having exhausted his administrative remedies, the plaintiff, on December 9, 1959, filed this suit for declaratory judgment.\\nBecause of the disposition of the question posed in the text, the Court need not consider whether residency, within the meaning of \\u00a7 249, is made out by shipping aboard a vessel of United States registry, when the vessel ships foreign. In its discussion of whether deportation interrupts residency, the Court has assumed that residency can be made out while aboard such a vessel.\\n. Points and Authorities in Support of Plaintiff's Motion for Summary Judgment, p. 3.\\nExpress provision is made for the voluntary departure of aliens at their own expense. \\u00a7 19(c) of the Act of February 5, 1917, 39 Stat. 889-890, as amended, Act of June 28, 1940, 54 Stat. 671-673, Act of December 8, 1942, 56 Stat. 1044; Act of July 1, 1948, 62 Stat. 1206. The statute applicable today is \\u00a7 101(g) of the Act of June 27, 1952, 66 Stat. 172, 8 U.S.C.A. \\u00a7 1101(g).\\n. \\\"Residence\\\" is defined as: \\\"the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent \\\" \\u00a7 101(a) (33) of the Act of June 27, 1952, 8 U.S.C.A. i 1101(a) (33).\\n\\\"Domicile\\\" is not defined by the statute; in Matter of M-, the Board said: \\\" 'domicile' must bear a relationship to actual residence and the broader legal fiction of domicile has no application. One may in a technical sense retain a domicile in a certain place without maintaining a residence there, and though he may be absent therefrom for many years. The rulings of the Attorney General require [for applicability of 7th proviso relief] more than a mere technical domicile, they require a residence.\\\" (at p. 92)\\n. In Kwong Hai Chew v. Colding, 1953, 344 U.S. 590, at page 596, note 4, 73 S. Ct. 472, 477, 97 L.Ed. 576, the terms were used as follows;\\n\\\"In this opinion 'exclusion' means preventing someone from entering the United States who is actually outside of the United States or is treated as being so. 'Expulsion' means forcing someone out of the United States who is actually within the United States or is treated as being so. 'Deportation' means the moving of someone away from the United States, after his exclusion or expulsion.\\\"\\n. Report of Senate Committee on Immigration to accompany H.R. 349, 70th Cong., 2nd Sess., p. 4. The provision is not mentioned in the House Report, see H.R. No. 13, 70th Cong., 1st Sess., because it was first inserted as an amendment in the Senate and agreed to in conference.\\n. \\u00a7 1 of the Act of June 29, 1906, 84 Stat. 596.\\n. \\\"We regard the act of 1929 as a remedial statute intended to minimize the frauds and mitigate the hardships resulting from the absence of contemporary records of arriving immigrants. The language of the act is 'any alien,' and the hardship it seeks to remedy is as' great in the case of a lawfully entered alien whose registry is inadvertently omitted or unfortunately lost as in the case of an unlawful alien who smuggles himself across the frontier.\\\" Linklater v. Perkins, supra, at page 72 of 69 App.D.C., at page 476 of 74 IT .2d.\\n. On September 12, 1945, Z. B. Jackson, Chief, Adjudications Division of the Immigration Service in San Francisco, sent the following communication to Stan Olson, Chief, Entry and Departure Section for San Francisco:\\n\\\"The above named alien has advised this office that he has signed on the SS 'Ira [sic] Berlanga' of the United Fruit Line as a 2nd cook. The vessel is now docked at Pier 24 and is expected to depart on September 21, 1945. He signed on the above-named vessel under the name Billy Sing.\\n\\\"It is requested that your office verify the departure of this alien in order that warrant of deportation may be executed and the bond exonerated.\\\"\\nThus it is clear that the Service knew of the plaintiff's proposed departure and assented.\\n. The Court need not consider the problem of where the plaintiff may be sent. In Cheng Fu Sheng v. Rogers, D.C.D.C. 1959, 177 F.Supp. 281, Judge Holtzoffi held that aliens could not be deported to Formosa. His reasoning was based on the enumeration of eight possibilities as places of deportation in \\u00a7 243 of the Act of June 27, 1952, 8 U.S.C.A. \\u00a7 1253, each one of which is a \\\"country\\\". Since Formosa is not a \\\"country\\\", deportation to Formosa was held impermissible. However, in Cheng there was a stipulation that the Government intended to execute the warrants by deporting the plaintiffs to Formosa. In the instant case, there is no such stipulation.\"}"
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+"{\"id\": \"160530\", \"name\": \"Irwin EISENSTEIN, Plaintiff-Appellant, v. Christie WHITMAN, New Jersey Administrative Office of the Courts, Psi Technologies Inc. (Policy Studies Inc.), Jeb Bush, John Doe, Jane Doe, Defendants-Appellees\", \"name_abbreviation\": \"Eisenstein v. Whitman\", \"decision_date\": \"2001-02-14\", \"docket_number\": \"No. 00-6051\", \"first_page\": \"24\", \"last_page\": \"26\", \"citations\": \"4 F. App'x 24\", \"volume\": \"4\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Second Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T21:30:17.036195+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present GRAAFEILAND, CALABRESI and SOTOMAYOR, Circuit Judges.\", \"parties\": \"Irwin EISENSTEIN, Plaintiff-Appellant, v. Christie WHITMAN, New Jersey Administrative Office of the Courts, Psi Technologies Inc. (Policy Studies Inc.), Jeb Bush, John Doe, Jane Doe, Defendants-Appellees.\", \"head_matter\": \"Irwin EISENSTEIN, Plaintiff-Appellant, v. Christie WHITMAN, New Jersey Administrative Office of the Courts, Psi Technologies Inc. (Policy Studies Inc.), Jeb Bush, John Doe, Jane Doe, Defendants-Appellees.\\nNo. 00-6051.\\nUnited States Court of Appeals, Second Circuit.\\nFeb. 14, 2001.\\nIrwin Eisenstein, Brooklyn, NY, pro se.\\nMichael J. Haas, Assistant Attorney General; George N. Cohen, on the brief, for John J. Farmer, Jr., Attorney General of New Jersey, Trenton, NJ, for appellees Whitman and New Jersey Administrative Office of the Courts.\\nSara A. Genzel-Steffen, Assistant Attorney General, for Robert A. Butterworth, Attorney General of Florida, Tallahassee, FL, for appellee Bush.\\nAndrew W. Loewi, Brownstein Hyatt & Farber, P.C., Denver, CO, for appellee PSI.\\nPresent GRAAFEILAND, CALABRESI and SOTOMAYOR, Circuit Judges.\", \"word_count\": \"560\", \"char_count\": \"3554\", \"text\": \"SUMMARY ORDER\\nUPON DUE CONSIDERATION, it is ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be and hereby is AFFIRMED.\\nIrwin Eisenstein appeals from the district court's (Hellerstein, J.) dismissal of his suit, under the False Claims Act (\\\"FCA\\\"), 31 U.S.C. \\u00a7 3729, and 42 U.S.C. \\u00a7 1983, 1985, and 1988 against Governor Jeb Bush, Governor Christine Whitman, the New Jersey Administrative Office of the Courts (\\\"AOC\\\"), and Policy Studies, Inc. (\\\"PSI\\\"). Eisenstein also appeals from the district court's denial of a motion for reconsideration, and moves this court for a writ of coram nobis, for sanctions, and for inclusion in the record of allegedly newly discovered evidence.\\nAs the district court found, Bush, Whitman, and the AOC lack sufficient contacts with New York to establish personal jurisdiction. In addition, because the FCA bars courts from hearing qui tam suits based on publicly disclosed information where the plaintiff was not an original source of the information, there is no subject matter jurisdiction over PSI as to the FCA claims. We also agree with the district court that because PSI is not a state actor and did not act under color of state law or as part of a conspiracy, Eisenstein's claims under \\u00a7 1983, 1985, and 1988 must fail. Finally, the district court correctly determined that Eisenstein's allegations of fraud against PSI were wholly conclusory and did not satisfy the heightened pleading requirements for fraud set out in Rule 9(b) of the Federal Rules of Civil Procedure.\\nDenial of Eisenstein's motion for reconsideration was well within the district court's discretion. See Devlin v. Transp. Communications Int'l Union, 175 F.3d 121, 132 (2d Cir.1999) (stating that the standard of review for denial of a motion for reconsideration is abuse of discretion).\\nWe have considered all of plaintiffs arguments, and find them to be without merit. The judgment of the district court is therefore AFFIRMED, and all of Eisenstein's motions to this court are DENIED.\\n. In the original order, the district court dismissed the claim against Bush for lack of venue. In subsequent orders, however, the court clarified that the claim was dismissed for lack of personal jurisdiction.\\n. The district court did not explicitly address Eisenstein's claims against John Doe and Jane Doe. When, however, an action is dismissed as to all defendants who have been served and only unserved defendants \\\"remain,\\\" as is the case here, the entry of a final judgment is not precluded \\\"since there is no basis for believing there will be any further adjudications in the action, or . for holding the dismissals subject to revision.\\\" Leonhard v. United States, 633 F.2d 599, 608 (2d Cir.1980).\"}"
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diff --git a/us/1768099.json b/us/1768099.json
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+"{\"id\": \"1768099\", \"name\": \"Heinz HABER, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee\", \"name_abbreviation\": \"Haber v. United States\", \"decision_date\": \"1987-10-21\", \"docket_number\": \"No. 87-1102\", \"first_page\": \"1051\", \"last_page\": \"1056\", \"citations\": \"831 F.2d 1051\", \"volume\": \"831\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the Federal Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T21:30:49.920860+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MARKEY, Chief Judge, NEWMAN, and BISSELL, Circuit Judges.\", \"parties\": \"Heinz HABER, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.\", \"head_matter\": \"Heinz HABER, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.\\nNo. 87-1102.\\nUnited States Court of Appeals, Federal Circuit.\\nOct. 21, 1987.\\nEdward Ord, Ord & Norman, of San Francisco, Cal., argued for plaintiff-appellant.\\nB. Paul Klein, Dept, of Justice, of Washington, D.C., argued for defendant-appellee. With him on the brief were Roger M. Olsen, Asst. Atty. Gen., Michael L. Paup and Gilbert S. Rothenberg.\\nBefore MARKEY, Chief Judge, NEWMAN, and BISSELL, Circuit Judges.\", \"word_count\": \"3063\", \"char_count\": \"18568\", \"text\": \"PAULINE NEWMAN, Circuit Judge.\\nMr. Heinz Haber (taxpayer) appeals an Order of the United States Claims Court granting the government's motion to dismiss his suit for refund based on foreign taxes paid. Haber v. United States, 8 Cl.Ct. 371 (1985). We reverse.\\nBackground\\nTaxpayer, a resident of the Federal Republic of Germany, relying on the ten-year limitation period set in the Internal Revenue Code for seeking refund based on credit for foreign taxes paid, filed claims in June, 1977 for the tax years 1970 and 1971, in the amounts of $21,338 and $17,059. The Internal Revenue Service sent taxpayer, through his accountant in the United States Mr. Lasker, a notice of disallowance dated November 14, 1977, stating that the ten-year limitation period for filing such claims did not apply, and that the claims were barred. The Service was at that time involved in litigation based on that position, and in 1978 received three adverse decisions: Allatt v. United States, 218 Ct.Cl. 694 (1978); Hart v. United States, 585 F.2d 1025, 218 Ct.Cl. 212 (Ct.C1.1978); and United States v. Woodmansee, 578 F.2d 1302 (9th Cir.1978). Similar adverse decisions had been received in the past, e.g., Bank of America v. United States, 377 F.2d 575 (Ct.C1.1967). These decisions held that 26 U.S.C. \\u00a7 6511(d)(3)(A) did indeed provide a ten-year limitation period for applying for refunds based on foreign taxes paid, and that other, shorter, periods of limitation did not apply.\\nMr. Lasker averred that he had telephone conversations with IRS personnel in Washington, D.C. and in the Philadelphia IRS Service Center where foreign taxpayers file returns \\\"during the two year period following the 1977 notice; that during these conversations he was \\\"lead [sic] to believe that the notice, dated November 14, 1977 . had been withdrawn and that an extension had been granted\\\" so that he \\\"could continue to pursue the matter on an administrative level\\\". He stated that he could not now (in 1985) remember the specific dates and names of the IRS personnel with whom he spoke because of the long time period between these conversations and the giving of his declaration. He stated that he discussed the Hart and Woodmansee cases with the IRS representatives, and that he \\\"did rely on these representations\\\" and believed that the 1977 dis-allowance was withdrawn. The IRS records of taxpayer Haber's files for this period have been destroyed, and thus provide no enlightenment as to the IRS' side of these conversations, the actions it took, and its reasons.\\nOn October 26,1982 the IRS sent taxpayer a notice of disallowance of his claim for the tax year 1970. This notice made no reference to the notice dated November 14, 1977, to which it was substantially identical. Both the 1977 and the 1982 notices contained the provision:\\nIf you wish to bring suit or proceedings for the recovery of any tax, penalties, or other moneys for which this disallowance notice is issued, you may do so by filing such a suit with the United States District Court having jurisdiction, or with the United States Court of Claims. The law permits you to do this within 2 years from the mailing date of this letter.\\nTaxpayer filed suit in the Claims Court on October 17, 1984, within two years after the 1982 notice of disallowance. The Claims Court held that taxpayer's suit is barred because it was not filed within 2 years after the 1977 notice.\\nDiscussion\\nTaxpayer contends that the period of limitation for this suit is measured from the October 26,1982 notice of disallowance, because the IRS's withdrawal of the 1977 notice removed it as an official action to which the limitation period applied.\\nThe taxpayer's version of the facts concerning the 1977 notice is uncontradicted. Further, as the Claims Court observed, factual inferences are required to be drawn favorably to Haber on this government motion to dismiss, which requires that \\\"the facts alleged by plaintiff [be accepted] as true.\\\" Featheringill v. United States, 217 Ct.Cl. 24, 26 (1978). See also Jewelers Vigilance Committee v. Ullenberg Corp., 823 F.2d 490, 492, 2 USPQ2d 2021, 2023 (Fed. Cir.1987).\\nThe issue thus is whether the taxpayer was entitled to rely on the oral statement by the Service that the 1977 notice was withdrawn. The government states that a prudent accountant should have filed suit within two years after the November 1977 notice, and that taxpayer did not act reasonably.\\nTaxpayer argues that it was clear, in view of the several contemporaneous decisions adverse to the IRS position, that the 1977 disallowance was in error. Since taxpayer was plainly entitled to the refund, he argues, it was reasonable to believe the oral statement that the notice was withdrawn. The government conceded before the Claims Court that the IRS could orally withdraw a notice of disallowance.\\nReinforcing taxpayer's argument is the 1982 notice of disallowance, which makes no reference to the 1977 notice. The 1982 notice supports an inference that the IRS considered the 1977 notice withdrawn because, without such withdrawal, there was no reason for the IRS to send a new notice five years later. No such reason has been offered by the government. The IRS offered no evidence to rebut the inference that the IRS considered that it was writing on a clean slate in its 1982 disallowance of the claim. The destruction by the Service of records of active cases has not been justified, and requires that the government face the same adverse inferences therefrom as would a private person. The government can not prevail on unsupported arguments that could be defeated by information reasonably expected to be contained in its destroyed files.\\nThe Claims Court found that the taxpayer did not act reasonably, in his inaction during the period after receipt of the 1977 notice. We agree that no sense of urgency wells from taxpayer's approach to the entire matter. The taxpayer's apparent unconcern for the passage of time is matched only by that of the Service, which issued a notice of disallowance in 1982 on a refund claim filed in 1977 for a 1970 tax, said notice bottomed on a legal position on which the courts have regularly held against the Service.\\nTaxpayer cites Beardsley v. United States, 126 F.Supp. 775 (D.Conn.1954), to support the argument that he was entitled to rely on the oral advice that the first notice was withdrawn. In Beardsley the taxpayers received a notice of disallowance without the customary thirty day letter. Taxpayers' attorney was orally told that the notice of disallowance could be ignored. More than two years later taxpayers received a letter \\\"reaffirming\\\" the disallowance. In rejecting the government's position that suit was barred by the statute of limitations measured from the date of the first notice, the court observed that \\\"the statute does not in specific terms prohibit withdrawal, revocation, or cancellation of the notice by the Commissioner\\\", id. at 777, and held that the original notice had been, in effect, withdrawn. The Claims Court stated that \\\"the facts in Beardsley closely parallel [Haber's] situation\\\", but distinguished Beardsley because there the parties had stipulated that an authorized IRS official had told the Beardsleys to ignore the first notice. Haber asserts that because the IRS failed to produce records during discovery, he could not adduce evidence that the personnel who led Mr. Lasker to believe that the first notice had been withdrawn were \\\"authorized\\\".\\nAlthough the significance of missing records is to be determined with respect to the circumstances of each case, the government's challenge to the authority of the personnel who gave the oral notice of withdrawal can not shift to taxpayer the burden of proving that the personnel were not unauthorized. The burden of coming forward remains with the government, and the prejudicial effect of its destruction of active files weighs against it. See Belton v. Commissioner, 562 F.Supp. 30, 31-33 (D.D.C.1982) (based on \\\"inactivity of the agency, and the government's [indication] that the files may have been destroyed\\\", the court found estoppel based on \\\"the cumulative prejudicial effect of the facts\\\").\\nThe government also argues that the two-year period for filing suit can be extended only in writing , and that an oral withdrawal of a notice is prohibited by the statute. In essence, the IRS argues that a withdrawal of a disallowance is the equivalent of an indefinite extension of time for filing suit. This position is not supported by the statute. Section 6532(a)(2) presupposes, and requires, that an effective notice of disallowance exists. If that notice was withdrawn, there is nothing to extend. The issue at bar is not whether there was an extension of a term of limitation; it is whether the term ever started.\\nWe conclude that the Claims Court erred in holding that taxpayer could not have reasonably believed that the November 1977 notice was withdrawn. Our predecessor court has stated that \\\"taxpayers and the court can and should reasonably view the second disallowance as incorporating a reconsideration of the . claim previously rejected____\\\" Southeast Bank of Orlando v. United States, 676 F.2d 660, 662, 230 Ct.Cl. 277 (1982). On the totality of cir cumstances herein discussed, we hold that taxpayer was entitled to rely on the IRS oral representation that the notice was withdrawn. The dismissal is reversed, and the case is remanded for proceedings on the merits of taxpayer's claim.\\nREVERSED AND REMANDED.\\n. 26 U.S.C. \\u00a7 6511(d)(3)(A): Special period of limitation with respect to foreign taxes paid or accrued.\\nIf the claim for credit or refund relates to an overpayment attributable to any taxes paid or accrued to any foreign country or to any possession of the United States for which credit is allowed against the tax imposed by subtitle A in accordance with the provisions of section 901 or the provisions of any treaty to which the United States is a party, in lieu of the 3-year period of limitation prescribed in subsection (a), the period shall be 10 years from the date prescribed by law for filing the return for the year with respect to which the claim is made.\\n. 26 U.S.C. \\u00a7 6532(a)(2): The 2-year period prescribed in paragraph (1) shall be extended for such period as may be agreed upon in writing between the taxpayer and the Secretary or his delegate.\"}"
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+"{\"id\": \"1882982\", \"name\": \"Clayton COFFEY, et al., Plaintiffs-Appellants, v. FOAMEX L.P., and Recticel Foam Corporation, Defendants-Appellees\", \"name_abbreviation\": \"Coffey v. Foamex L.P.\", \"decision_date\": \"1993-08-06\", \"docket_number\": \"No. 92-5990\", \"first_page\": \"157\", \"last_page\": \"163\", \"citations\": \"2 F.3d 157\", \"volume\": \"2\", \"reporter\": \"Federal Reporter 3d Series\", \"court\": \"United States Court of Appeals for the Sixth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"Before: MERRITT, Chief Judge; and GUY and BATCHELDER, Circuit Judges.\", \"parties\": \"Clayton COFFEY, et al., Plaintiffs-Appellants, v. FOAMEX L.P., and Recticel Foam Corporation, Defendants-Appellees.\", \"head_matter\": \"Clayton COFFEY, et al., Plaintiffs-Appellants, v. FOAMEX L.P., and Recticel Foam Corporation, Defendants-Appellees.\\nNo. 92-5990.\\nUnited States Court of Appeals, Sixth Circuit.\\nSubmitted June 18, 1993.\\nDecided Aug. 6, 1993.\\nSidney W. Gilreath, Richard Baker, Jr. (briefed), Gilreath & Associates, Knoxville, TN, for plaintiffs-appellants.\\nCharles T. Herndon, IV (briefed), Johnson City, TN, Henry W. Killeen, III, Harris, Beach & Wilcox, Buffalo, NY, for defendants-appellees.\\nBefore: MERRITT, Chief Judge; and GUY and BATCHELDER, Circuit Judges.\", \"word_count\": \"3158\", \"char_count\": \"20470\", \"text\": \"BATCHELDER, Circuit Judge.\\nPlaintiffs, three employees of defendants, and their wives, filed a complaint in District Court on October 11, 1991, claiming the plaintiffs (including their wives and children) suffered neurological injuries and illness caused by their exposure to chemicals at the workplace, primarily a chemical known as \\\"TDI.\\\" They claimed that the defendants \\\"actively practiced fraud upon the plaintiffs\\\" by failing to warn them of the dangers of contamination and by maintaining a hazardous work environment of which the plaintiffs were unaware. The complaint included a loss of consortium claim on behalf of the wives. The same three employees had each earlier filed state workers' compensation claims, and received benefits, for respiratory problems they said were caused by chemical exposure.\\nThe defendants filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6), arguing that plaintiffs had failed to state a claim upon which relief may be granted, and that the claims were barred under the exclusivity provisions of the Tennessee workers' compensation law. Plaintiffs amended their complaint on February 28,1992 to show proper diversity of citizenship.\\nOn March 4, 1992, the District Court dismissed the complaint in part, treating defendants' motion and attached affidavits as a motion for summary judgment. The District Court denied defendants' motion to dismiss the wives' personal injury claims. On appeal, we dismissed sua sponte, holding that the order was not final and appealable since it had preserved the wives' claims. Coffey v. Foamex, 966 F.2d 1451 (6th Cir.1992). Plaintiffs voluntarily dismissed these remaining claims without prejudice on July 16, 1992, rendering the order final and appealable. They filed a timely notice of appeal on July 22, 1992.\\nPlaintiffs claimed that defendants' fraud consisted of failure to warn them about the dangers of exposure to the chemicals, false representations about the chemicals' safety, and failure to disclose their knowledge about the dangers to plaintiffs, who lacked such information; these acts rose to the level of intentional tort. Plaintiffs now argue that since Tennessee recognizes fraud as an intentional tort, the Tennessee workers' compensation law $loes not bar their lawsuit. The injuries claimed in the suit at bar, they insist, are not the same as those for which they were compensated under workers' compensation; payments and settlements plaintiffs agreed to in the context of the earlier claim do not bar them from recovering for subsequent injuries caused by further contamination. We disagree.\\nWe review grants of summary judgment motions de novo. In reviewing a summary judgment disposition, the Court of Appeals must determine whether the party opposing the motion has put forth evidence which, if produced at trial, would withstand the movant's motion for a directed verdict. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Bare allegations by the non-moving party will not alone suffice; they must be supported by sufficient evidence such that \\\"reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict.\\\" Mitchell v. Toledo Hospital, 964 F.2d 577, 581-82 (6th Cir.1992) (quoting Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512). Where the non-moving party \\\"fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,\\\" granting the motion for summary judgment is appropriate. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.\\n1. Exclusivity of remedy under Tennessee workers' compensation law.\\nThe Tennessee Workers' Compensation Law provides:\\nRight to compensation exclusive \\u2014 (a) The rights and remedies herein granted to an employee subject to the Workers' Compensation Law on account of personal injury or death by accident . shall exclude all other rights and remedies of such employee . at common law or otherwise, on account of such injury or death.\\nTenn.Code Ann. \\u00a7 50-6-108 (1991). As in other jurisdictions, the courts have carved out an exception for intentional torts committed by an employer against an employee, see Cooper v. Queen, 586 S.W.2d 830, 833 (Tenn.App.1979) (Tenn. cert. denied); these torts give rise to a common law action for damages, id.\\nHowever, the Tennessee courts have consistently defined the scope of the intentional tort exception narrowly, holding that \\\"gross or criminal negligence\\\" is not considered an intentional tort for this purpose. Cooper, 586 S.W.2d at 833. The Cooper court explained, quoting a treatise on workers' compensation law:\\nSince the legal justification for the common law action is the non-accidental character of the injury from the defendant employer's standpoint, the common law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, wreekless, [sic] culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury.\\nId., (quoting Larson, Workmen's Compensation (desk ed.) \\u00a7 68.10). The court approvingly cited two cases from other jurisdictions in which \\\"gross or criminal negligence\\\" had been held not to constitute intentional torts; both cases involved employers which had \\\"knowingly permitted a hazardous work condition to exist\\\" and nonetheless directed workers to work in such conditions. Id. at 833-834.\\nWhile the Tennessee Supreme Court has never given its specific imprimatur to the intentional tort exception, the Tennessee courts have stuck with Cooper and have not extended its rule. In King v. Ross Coal, 684 S.W.2d 617 (Tenn.App.1984), the court followed Cooper and expounded on the rationale behind the narrow exception.\\nThe Workers' Compensation Law takes away from the employee his common law rights and gives him others, on the guarantee that these substituted rights shall be generously awarded, both for foregoing his common law rights and in consideration of the obligations of his employer to keep his employee from becoming a public charge. The legislature has made the rights of the employee and employer the exclusive remedy. Those who accept benefits under an act of this kind must likewise take the burdens.\\nKing, 684 S.W.2d at 619-20 (citations omitr., ted). The King court restated the requirement that the plaintiff show \\\"actual intent . to cause injury_ We hold that it takes more than a mere inference of tortious intent to convert the defendant's negligence into an intentional tort.\\\" Id. at 620. In continuing this line of eases, the Court of Appeals has declined to adopt the arguments of plaintiffs who argue for a less stringent standard such as the \\\"substantially certain [to cause injury]\\\" standard for intentional tort. \\\"Any departure from the stated public policy of this jurisdiction must come from the legislature or the Supreme Court.\\\" Mize v. Conagra, 734 S.W.2d 334, 336 (Tenn.App.1987).\\n2. Fraud as an intentional tort falling within the exception.\\nIn Brewer v. Monsanto Corp., 644 F.Supp. 1267 (M.D.Tenn.1986), plaintiffs- alleged, among other things, that their employer fraudulently concealed from them the \\\"true nature\\\" of PCB chemical contamination which ultimately caused them injury. Brewer, 644 F.Supp. at 1270. Noting that under Cooper, a corporation cannot perpetrate a tort \\\"in person\\\" upon an employee, and that an intentional tort by a co-employee is actionable, but not directly against the employer, the court held that \\\"a corporate employer [is] liable for intentional torts carried out at the behest of the corporate employer but through corporate employees.\\\" Id. at 1275. Since fraud is an intentional tort under Tennessee law, id. (citing Wynne v. Allen, 66 Tenn. 312 (7 Baxt.) (1874)), it falls outside the exclusivity provisions of the Workers' Compensation Law.\\nThe problem with Brewer is its assumption that since the Tennessee courts consider fraud to be an intentional tort, allegations of fraud resulting in worker injury necessarily fall outside the workers' compensation scheme. As the Tennessee cases show, the existence of the defendant's actual intent, not the nature of the tort, determines whether common law suit is permitted; again, \\\"it takes more than a mere inference of tortious intent to convert the defendant's negligence into an intentional tort.\\\" King, 684 S.W.2d at 620. See also Cooper, 586 S.W.2d at 833 (\\\"There is a distinct difference in fact and law between gross or criminal negligence and actual intent to injure.\\\"). Cases in which an employer \\\"knowingly permit[s] a hazardous work condition to exist [or] knowingly order[s] claimant to perform an extremely dangerous job . fall[ ] short of the kind of actual intention to injure that robs the injury of accidental character.\\\" Mize, 734 S.W.2d at 336 (quoting King, 684 S.W.2d at 619); see also Gonzales v. Alman Construction Co., 857 S.W.2d 42, 48 (Tenn. App.1993) (\\\"The law in this State provides that a breach of the employer's duty to provide a safe place to work is not equated with an actual intent to injure nor with intentional tortious conduct.\\\"). To permit a plaintiff otherwise covered by workers' compensation to pursue common law claims for gross negligence or willful misconduct simply by pleading them in terms of fraudulent concealment would be to circumvent completely the exclusivity provision of the workers' compensation scheme for all torts involving greater culpability than simple negligence.\\nThe facts alleged by plaintiffs do not, in any event, make out a prima facie intentional tort under Tennessee law. To establish the intentional tort of \\\"fraudulent misrepresentation\\\" in Tennessee, the alleged misrepresentation\\n(1) must have been a representation as to an existing fact; (2) must have been false; (3) must have been relied upon; and (4) must have been so material that it determined the conduct of the parties seeking relief.\\nAtkins v. Kirkpatrick, 823 S.W.2d 547, 552 (Tenn.App.1991). Plaintiffs Coffey, Owens, and Hawk aver that they \\\"used various chemicals produced and, in so using, breathed their vapors and/or came into contact with the chemicals on their skin.\\\" Complaint at 4, \\u00b6 11. The date of this occurrence is not specified. The complaint alleges that \\\"the chemicals . were in a defective condition or were unreasonably dangerous.\\\" Id., \\u00b6 13. The defendants were acting \\\"outside the scope and course of defendants' capacity as an employer [and] actively practiced fraud upon the plaintiffs and failed to warn plaintiffs of TDI contamination.\\\" Id. at 5, \\u00b6 20. \\\"The defendants, through their agents, are guilty of fraud as to the plaintiffs by exposing them to hazardous conditions in the work environment of which the plaintiffs were unaware.\\\" Id. at 5-6, \\u00b6 21. The \\\"agents\\\" mentioned are nowhere named or specified.\\nFed.R.Civ.P. 9(b) requires that averments of fraud must be stated with particularity. The Sixth Circuit reads this rule liberally, however, requiring a plaintiff, at a minimum, to \\\"allege the time, place, and content of the alleged misrepresentation on which he or she relied; the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud.\\\" Ballan v. Upjohn Co., 814 F.Supp. 1375, 1385 (W.D.Mich.1992) (citing Michaels Bldg. Co. v. Ameritrust Co. N.A., 848 F.2d 674, 679 (6th Cir.1988)). However, \\\"allegations of fraudulent misrepresentation must be made with sufficient particularity and with a sufficient factual basis to support an inference that they were knowingly made.\\\" Id. The threshold test is whether the complaint places the defendant on \\\"sufficient notice of the misrepresentation,\\\" allowing the defendants to \\\"answer, addressing in an informed way plaintiffs [sic] claim of fraud.\\\" Brewer, 644 F.Supp. at 1273.\\nHere, while the complaint fairly clearly alleges the existence of a dangerous workplace, the manner in which injury occurred, and, to a lesser extent, the injuries which resulted, the complaint is vague at best as to which specific acts or omissions of the defendants amounted to fraudulent misrepresentation. The allegation that \\\"defendants . actively practiced fraud upon the plaintiffs\\\" is purely eonclusory. That they \\\"faded to warn plaintiffs of TDI contamination,\\\" without more, does not give rise to fraudulent misrepresentation; neither does \\\"exposing [plaintiffs] to hazardous conditions in the work environment of which the plaintiffs were unaware.\\\" More importantly, perhaps, the complaint does not properly set out allegations of plaintiffs' reliance on defendants' supposed misrepresentations. The allegations set out in Brewer were apparently more detailed, even given the Brewer court's evidently generous consideration of the complaint. Nonetheless, despite the plaintiffs' failure to satisfy the requirements of Rule 9(b), in the absence of defendants' motion for more definite statement under Rule 12(e), dismissal on this basis alone would not be appropriate. See Hayduk v. Lanna, 775 F.2d 441, 445 (1st Cir.1985) (in meeting Rule 9(b) particularity requirement, \\\"federal courts must be liberal in allowing parties to amend their complaints\\\").\\nMore problematic to plaintiffs is the fact that all three had previously alleged injuries due to contact with the same harmful chemicals, and had received settlement payments under workers' compensation. This fact constituted the basis for the District Court's granting of summary judgment in favor of the defendants. Plaintiffs, of course, argue that this complaint is a different kettle of fish; they claim defendants \\\"fraudulently withheld important information on which each plaintiff relied,\\\" and that the present personal injury claims, for \\\"neurological\\\" disorders, constitute different injuries and claims based on them are not barred by the favorable disposition of the prior claims. Plaintiffs say that had the information (presumably, that the chemicals were dangerous) been available to them, they would not have continued working for defendants.\\nIt is difficult as a matter of logic to see how injuries such as plaintiff Hawk's burned larynx, for which he received compensation for three days of disability, and plaintiff Coffey's \\\"permanent partial disability\\\" due to inhalation of vapors, for which he was paid over fifty thousand dollars in settlement, would not have put the plaintiffs on notice that they were in danger, regardless of defendants' representations. More difficult to see is how plaintiffs relied on defendants' supposed representations of the chemicals' safety in the wake of these injuries, all of which happened several years ago. \\\"Where the plaintiff has actual knowledge . that the representation is false, an action for fraud will not lie.\\\" Pusser v. Gordon, 684 S.W.2d 639, 642 (Tenn.App.1984). Reliance on a fraudulent misrepresentation must be reasonable; \\\"if one knows the truth and is not deceived, he is not defrauded.\\\" Maddux v. Cargill, Inc., Til S.W.2d 687, 691-92 (Tenn.App.1989). Where the injured party is put on notice of potential harm or damage, even if given assurances of safety as well, his reliance on those assurances must be reasonable. If he does not attempt to investigate or otherwise guard against that about which he was warned, his reliance is rendered unreasonable, and he cannot claim fraudulent misrepresentation. See Atkins v. Kirkpatrick, 823 S.W.2d 547, 552 (Tenn.App.1991) (where agent told purchaser of lot that lot was approved for septic system and was buildable, but cautioned him to contact the inspectors for confirmation, and inspectors said lot was approved \\\"so long as it had not been disturbed by cut or fill,\\\" but purchaser did no further investigation, purchaser has no claim for fraudulent misrepresentation against agent where lot had been filled and was not fit for building). Since plaintiffs have neither alleged in their complaint nor provided evidence of facts which would support a finding that they reasonably relied on defendants' alleged fraudulent misrepresentation, plaintiffs have failed to establish an essential element of their claim, Celotex, 477 U.S. at 322, 106 S.Ct. at 2552, and their suit thus cannot survive summary judgment.\\n3. Settlements for previous claims as barring further claims.\\nThe District Court granted summary judgment in favor of defendants because plaintiffs had formerly agreed to settlement payments under workers' compensation for injuries caused by chemical exposure. While we do not believe (nor do we think the District Court meant to imply) that because an injured worker has received compensation, he is forever barred from claiming compensation for distinct future injuries that might be caused by the same hazard, we agree that in this case, because of the factors we have discussed, plaintiffs' claims are barred due to their previous successful claims.\\nWhile all three plaintiffs previously received compensation for chemically-caused injuries, Coffey's present case is the weakest, since, as the District Court pointed out, he specifically agreed to settle \\\"all claims of whatever kind or nature.\\\" But so far as the present complaint sets out the facts, there is no indication as to any of the plaintiffs that the inhalations and other contacts with the chemicals causing the complained-of neurological damage occurred on occasions different from those which caused the earlier injuries. We must assume that the harmful contacts were the same. Where a worker is compensated, or is entitled to compensation, for disability or for medical expenses, under the Workers' Compensation Act, \\\"the exclusive remedy provision of the Worker's [sic] Compensation Act extends to the entire injury and all its damages.\\\" Clayton v. Pizza Hut, Inc., 673 S.W.2d 144, 146 (Tenn.1984). Again, \\\"[t]hose who accept benefits under an act of this kind must likewise take the burdens.\\\" King v. Ross Coal Co., Inc., 684 S.W.2d 617, 619 (Tenn.App.1984) (in context of plaintiffs already receiving workers' compensation benefits). See also White v. Apollo-Lakewood, Inc., 290 Ark. 421, 720 S.W.2d 702 (1986) (where plaintiffs injured by inhaling chemicals received benefits, and then went back to work, direct, suit against employer, including allegations of fraudulent concealment, were barred by similar exclusive remedy provisions of Arkansas workers' compensation law). Even assuming plaintiffs' version of the facts to be undisputed, as we must in reviewing a grant of summary judgment, plaintiffs' assertion that the present complaint seeks compensation for injuries wholly different from those for which they have already been compensated is merely a \\\"bare allegation\\\" unsupported by fact. Mitchell, 964 F.2d at 582. The District Court did not err in concluding that the present complaint is barred.\\nFor the reasons given, the order of the District Court dismissing plaintiffs' claims is AFFIRMED.\\n. This court, in exercising diversity jurisdiction, applies the substantive state law in accordance with Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Where the relevant state law is unsettled, the court rules based on its assumption of how the highest state court would rule if faced with the same case. Comm'r of Internal Revenue v. Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967).\\n. For a criticism of Brewer's application of the Workers' Compensation Law exclusivity provisions, see Joseph H. King, Jr., The Exclusiveness of an Employee's Workers' Compensation Remedy Against His Employer, 55 Tenn.L.Rev. 405 (Spring 1988).\\n. We note that the fact that plaintiffs have already received workers' compensation benefits distinguishes the present case from Brewer.\"}"
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+"{\"id\": \"2063274\", \"name\": \"John W. GARDNER, Secretary of Health, Education and Welfare, Appellant, v. Eli M. HALL, Appellee\", \"name_abbreviation\": \"Gardner v. Hall\", \"decision_date\": \"1966-09-12\", \"docket_number\": \"No. 8650\", \"first_page\": \"132\", \"last_page\": \"136\", \"citations\": \"366 F.2d 132\", \"volume\": \"366\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the Tenth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T20:06:28.282448+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John W. GARDNER, Secretary of Health, Education and Welfare, Appellant, v. Eli M. HALL, Appellee.\", \"head_matter\": \"John W. GARDNER, Secretary of Health, Education and Welfare, Appellant, v. Eli M. HALL, Appellee.\\nNo. 8650.\\nUnited States Court of Appeals Tenth Circuit.\\nSept. 12, 1966.\\nJack H. Weiner, Attorney, Department of Justice (John W. Douglas, Asst. Atty. Gen., Bruce Green, U. S. Atty., David L. Rose, Attorney, Department of Justice, on the Brief), for appellant.\\nLowry McKee, Tulsa, Okl., for appellee.\\nBefore MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.\", \"word_count\": \"1936\", \"char_count\": \"11704\", \"text\": \"SETH, Circuit Judge.\\nThis action was commenced by a claimant for old age insurance benefits under the Social Security Act to review a decision by the Secretary of Health, Education and Welfare. 42 U.S.C.A. \\u00a7 405(g). The trial court reversed the decision of the Secretary which had imposed deductions against all of the claimant's old age insurance benefits for the year 1961 and thereafter. The trial court ruled there was no substantial evidence to sustain the findings of the Secretary.\\nThe record shows that the claimant when he attained the age of sixty-five years made application for old age insurance benefits. He was denied benefits on his application because the agency held that he had received remuneration of more than the permitted amount for services rendered to a family ranching corporation. 42 U.S.C.A. \\u00a7 403(f) (3). The claimant requested reconsideration and received a Reconsideration Determination in which it was stated that the benefits were denied because there was undistributed income and earnings \\\"channeled to him\\\" in the family corporation. A hearing was had before the Hearing Examiner who also found that the claimant was not entitled to benefits. Upon a review by the Appeals Council a decision was rendered which affirmed the decision of the Hearing Examiner with some modification. The claimant thereupon commenced the proceedings in the United States District Court from which this appeal has been taken.\\nThe record shows that the claimant, Mr. Hall, together with his wife and three adult sons, operated a farm or ranch as a partnership. Each of the part ners had a one-fifth interest in the partnership, but none of the partners drew salaries for their services. Mr. Hall was in active charge of the ranch during the partnership operation, and Mrs. Hall was likewise active in doing the bookkeeping for the ranch and related activities. In December 1960 a corporation was formed for the operation of the ranch, and each of the former partners received one-fifth of the capital stock and received credit on the corporate books in recognition of their partnership accounts. The corporation elected the claimant as president, his wife secretary-treasurer, and the three sons as vice presidents. Each of the officers, except Mr. Hall, received a salary of $12,000.00 a year. Mr. Hall received no salary. The corporation elected to be treated for federal income tax purposes as a partnership under Subchapter S of the Internal Revenue Code.\\nThe record also shows that Mrs. Hall, upon receipt of her annual salary from the corporation, would ordinarily deposit it in a joint checking account that she and her husband maintained. The record shows, however, that Mr. Hall during the period in question did not draw on this account although he was empowered to do so. Some of the household expenses were paid from this account. The balance was loaned by Mrs. Hall back to the corporation, and its accounts reflect this as a personal loan by Mrs. Hall.\\nThe claimant showed before the Hearing Examiner that he received no salary or other remuneration directly from the corporation for his personal services. The claimant's case thus showed in substance that he did perform some service to the corporation by way of advice to the other members of the family, and that this service amounted to some two or three hours of work daily. The record shows that Mrs. Hall spent some four or five hours' work daily in the performance of her services to the corporation. The claimant's case further showed that upon incorporation, all of the former partners with the exception of Mr. Hall commenced to receive salaries for their services. Testimony presented as part of the claimant's case thus showed that there was no switching of compensation from the husband to the wife at the time of the incorporation. Instead it showed that Mrs. Hall continued to perform the same services and was compensated as the other officers while Mr. Hall received nothing. In so presenting his case, the claimant met his statutory burden of proof.\\nThe Secretary's findings that Mr. Hall rendered services are based upon substantial evidence, including testimony of the claimant. The Secretary's finding as to the value of these services is likewise supported in the record. However, the principal issue throughout the proceedings has been whether or not the claimant actually received wages for these services. The Government during the course of these proceedings has advanced several theories in an attempt to demonstrate how Mr. Hall received remuneration from the corporation.\\nAs indicated above, in the initial determination and in the Reconsideration Determination, the theory adopted as to how the claimant was paid by the corporation for his services was that it was \\\"channeled\\\" to him and his wife \\\" in the form of undistributed income and dividends.\\\" It was also stated by the department that \\\"such income being called undistributed income and dividends does not alter the fact that it is actually remuneration for services being performed by the wage earner. \\\"\\nThe Hearing Examiner adopted a somewhat different theory to explain how the claimant was paid. He reasoned that since the salary paid to Mrs. Hall was deposited in the couple's joint bank account, claimant thereby received some benefit from it, and since claimant worked half as many hours as Mrs. Hall, his services were worth $6,000.00 per year. The Examiner thus stated in part that the claimant \\\" indirectly received income for his services in con nection with the business by reason of the access he had to the $12,000 per year salary received in the name of Helen Hall, his wife, by reason of their joint bank account.\\\"\\nAt the next step in the administrative proceedings, that is before the Appeals Council, the record shows their decision adopts the findings, conclusions, and inferences of the Hearing Examiner \\\" except as otherwise indicated herein.\\\" The Council does not mention the joint bank account theory in its opinion but instead discusses certain portions of the Internal Revenue Code of 1954, including Section 1375, which empowers the Commissioner of Internal Revenue to reallocate payments made from an electing small business corporation among the family shareholders.\\nThe Government on this appeal in its brief treats the issue as one of reallocation to Mr. Hall of part of the salary paid to Mrs. Hall as being within the power of the Secretary to reallocate compensation received from family corporations among members of the family.\\nThus the principal issue on this appeal revolves around the salary paid to Mrs. Hall by the corporation. Secondly it concerns the treatment as wages of undistributed profits and income of a corporation which has elected under the Federal income tax statutes to be taxed as a partnership.\\nThe Secretary has, without question, the authority and the duty to pierce any fictitious arrangements among family members, and others, to shift salary payments from one to the other when the arrangement is not in accord with reality. The cases clearly demonstrate, as in Folsom v. O'Neal, 250 F.2d 946 (10th Cir.), where a person receiving a salary was not a bona fide employee the payment may be ignored for qualification purposes. Or in Poss v. Ribicoff, 289 F. 2d 10 (2d Cir.), where there was a shifting of salary from husband to wife, and similarly in Flemming v. Lindgren, 275 F.2d 596 (9th Cir.); Newman v. Celebrezze, 310 F.2d 780 (2d Cir.), and Dondero v. Celebrezze, 312 F.2d 677 (2d Cir.). However, there must be facts clearly developed in the record to support such a reallocation of salary.\\nThe record before us contains no evidence, and no findings have been made that the salary paid Mrs. Hall is in any way excessive or not earned by her. There is no evidence to show that there was any shifting in the corporation of salary payments from the husband to the wife. As described above, the Secretary found that Mr. Hall's services were worth as much as Mrs. Hall's, that he worked half as long as she did, and his services were worth $6,000.00 per year. Necessarily therefore Mrs. Hall's services were found to be worth $12,000.00 per year. This being the case, there are no dollars paid to Mrs. Hall by way of salary which in reality represent services rendered by Mr. Hall. Therefore, the series of cases cited by the Secretary in his brief for reallocation of salaries, referred to above, are not applicable here. Furthermore since Mrs. Hall's salary was all her money, the fact that it may have been deposited in a joint bank account makes no difference, she could do what she wished with it including the use of it for household expenses, and the loan of it to the corporation.\\nWe find no authority whatever which would empower the Secretary of Health, Education and Welfare to allocate a portion of the corporation's undistributed profit and income to Mr. Hall as remuneration for his services. The Commissioner of Internal Revenue has authority to make some reallocation for tax purposes among family member shareholders, but this certainly does not give the Secretary of Health, Education and Welfare such authority. The fact that there is a Subchapter S corporation here concerned makes no difference, as the corporate entity must be respected. There is no evidence, nor any finding whatever that the corporation was in any manner a sham or a pretense; instead it was an entirely bona fide corporate entity.\\nThe findings of the Secretary are, of course, conclusive if supported by substantial evidence, 42 U.S.C.A. \\u00a7 405 (g); Folsom v. O'Neal, 250 F.2d 946 (10th Cir.); Dvorak v. Celebrezze, 345 F.2d 894 (10th Cir.), and the inferences drawn from the facts are accorded like treatment. However, when as here, the record does not contain any evidence upon which a finding of receipt of wages may be made the de\\u00f3ision of the Secretary must fail. The various theories adopted by the Secretary during the administrative and judicial proceedings to establish a constructive payment are not valid.\\nAffirmed.\"}"
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+"{\"id\": \"2212787\", \"name\": \"James E. MIDDLEBROOK, Plaintiff-Appellant, Mae Middlebrook, Plaintiff, v. CITY OF BARTLETT, TN; W.R. McClanahan, Individually and in his capacity as Director and City Engineer; Defendants-Appellees, Ken Fulmar, Individually and in his capacity as Mayor; Jay Rainey, Individually and in his capacity as Chief Administrative Officer; Charles Goforth, Individually and in his capacity as Director of Planning and Economic Development. Defendants\", \"name_abbreviation\": \"Middlebrook v. City of Bartlett\", \"decision_date\": \"2004-06-10\", \"docket_number\": \"No. 03-5570\", \"first_page\": \"560\", \"last_page\": \"562\", \"citations\": \"103 F. App'x 560\", \"volume\": \"103\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Sixth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:02:41.436721+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James E. MIDDLEBROOK, Plaintiff-Appellant, Mae Middlebrook, Plaintiff, v. CITY OF BARTLETT, TN; W.R. McClanahan, Individually and in his capacity as Director and City Engineer; Defendants-Appellees, Ken Fulmar, Individually and in his capacity as Mayor; Jay Rainey, Individually and in his capacity as Chief Administrative Officer; Charles Goforth, Individually and in his capacity as Director of Planning and Economic Development. Defendants.\", \"head_matter\": \"James E. MIDDLEBROOK, Plaintiff-Appellant, Mae Middlebrook, Plaintiff, v. CITY OF BARTLETT, TN; W.R. McClanahan, Individually and in his capacity as Director and City Engineer; Defendants-Appellees, Ken Fulmar, Individually and in his capacity as Mayor; Jay Rainey, Individually and in his capacity as Chief Administrative Officer; Charles Goforth, Individually and in his capacity as Director of Planning and Economic Development. Defendants.\\nNo. 03-5570.\\nUnited States Court of Appeals, Sixth Circuit.\\nJune 10, 2004.\\nRehearing Denied Aug. 19, 2004.\\nJames E. Middlebrook, Memphis, TN, pro se.\\nEdward J. McKenney, Jr., Hanover, Walsh, Jalenak & Blair, Memphis, TN, for Defendant-Appellee.\\nBefore KENNEDY and GILMAN, Circuit Judges; and SHADUR, District Judge.\\nThe Honorable Milton I. Shadur, United States District Judge for the Northern District of Illinois, sitting by designation.\", \"word_count\": \"856\", \"char_count\": \"5489\", \"text\": \"ORDER\\nJames E. Middlebrook, proceeding pro se, appeals a district court judgment dismissing his civil rights action filed pursuant to 42 U.S.C. \\u00a7 1982 and 1983; the Fair Housing Act (FHA), 42 U.S.C. \\u00a7 3601-3631; and the Tennessee Human Rights Act (THRA), Tenn.Code Ann. \\u00a7 4-21-101. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).\\nOn September 6, 2001, Middlebrook and his wife, Mae (the plaintiffs), filed a complaint, through counsel, against the City of Bartlett, Tennessee (City), and the following City officials: Mayor Ken Fulmar, Director and Engineer W.R. McClanahan, and Chief Administrative Officer Jay Rainey. The plaintiffs subsequently amended their complaint to add Charles Goforth, the City's Director of Planning and Economic Development, as a defendant. The plaintiffs, who are African-American, alleged that the defendants refused to provide water and sewer service to their prop erty because of their race. They sought injunctive and monetary relief.\\nThe defendants filed a motion for summary judgment, to which the plaintiffs responded. The district court granted the defendants' motion in part and denied the motion in part. Specifically, the district court dismissed the plaintiffs' civil rights claims filed pursuant to \\u00a7 1982, \\u00a7 1983, and the THRA because they were time-barred. The district court dismissed the plaintiffs' claims against all of the individual defendants, except McClanahan, because the complaint contained no allegations against Fulmar and Rainey in their individual capacities and the claims against Goforth were time-barred. The plaintiffs' remaining FHA claims against the City and McClanahan were subsequently tried to a jury. The jury returned verdicts in favor of the City and McClanahan and the district court entered an order and judgment in accordance with the jury verdicts on Mary 24, 2003. James Middlebrook has filed a timely appeal. He is now proceeding pro se.\\nWhile Middlebrook has listed five issues which he desires to raise on appeal, he has not offered any argument or citations in support of those issues. The failure to present an argument in an appellate brief waives appellate review. Buziashvili v. Inman, 106 F.3d 709, 719 (6th Cir.1997); Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 881, (6th Cir.1996).\\nNevertheless, even if this court were to decide to review the unsupported issues raised by Middlebrook, he is not entitled to any relief. To the extend that Middlebrook's appellate brief may be construed as a challenge to the district court's partial grant of summary judgment, his challenge fails. See Lanier v. Bryant, 332 F.3d 999, 1003 (6th Cir.2003). Middle-brook's claims against the defendants based upon the City's failure to provide sewer and water service were time-barred by the applicable one-year statute of limitation. See Tenn.Code Ann. \\u00a7 4-21-311(d), 28-3-104(a)(3); Merriweather v. City of Memphis, 107 F.3d 396, 398 (6th Cir.1997).\\nTo the extent that Middlebrook's appellate brief may be construed as a challenge to the jury verdicts in favor of the City and McClanahan, his challenge fails as well. First, there is no evidence in the record that Middlebrook properly preserved a sufficiency of the evidence issue for appeal by moving for either a new trial or a judgment notwithstanding the verdict. See United States v. L.E. Cooke Co., 991 F.2d 336, 343 (6th Cir.1993); Dixon v. Montgomery Ward, 783 F.2d 55, 55 (6th Cir.1986). Second, Middlebrook failed to file a transcript of the proceedings held in the district court. Without a transcript, it is impossible for this court to meaningfully review the sufficiency of the evidence relied upon by the jury to support its verdicts. See Hawley v. City of Cleveland, 24 F.3d 814, 821 (6th Cir.1994); King v. Carmichael, 268 F.2d 305, 306 (6th Cir.1959).\\nFinally, to the extent that Middle-brook requests this court to add additional defendants and an \\\"additional specific issue of discrimination on appeal,\\\" his request is inappropriate. Unless exceptional circumstances are present, issues which were neither raised nor ruled upon by the district court are not properly before this court. See United States v. $100,875.00 in U.S. Currency, 70 F.3d 438, 441 (6th Cir. 1995); Noble v. Chrysler Motors Corp., Jeep Div., 32 F.3d 997,1002 (6th Cir.1994). No exceptional circumstances exist in this case.\\nAccordingly, we affirm the district court's judgment. Rule 34(j)(2)(C), Rules of the Sixth Circuit.\"}"
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+"{\"id\": \"240953\", \"name\": \"Horace EVANS, Plaintiff-Appellee, v. Raymond G. MAHAL and Keith Mahal, Defendants-Appellants\", \"name_abbreviation\": \"Evans v. Mahal\", \"decision_date\": \"1962-03-07\", \"docket_number\": \"No. 14610\", \"first_page\": \"192\", \"last_page\": \"197\", \"citations\": \"300 F.2d 192\", \"volume\": \"300\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the Sixth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:06:16.709960+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Horace EVANS, Plaintiff-Appellee, v. Raymond G. MAHAL and Keith Mahal, Defendants-Appellants.\", \"head_matter\": \"Horace EVANS, Plaintiff-Appellee, v. Raymond G. MAHAL and Keith Mahal, Defendants-Appellants.\\nNo. 14610.\\nUnited States Court of Appeals Sixth Circuit.\\nMarch 7, 1962.\\nRobert B. Ray, Poore, Cox, Baker & McAuley, Knoxville, Tenn., for appellants.\\nJ. D. Lee, Knoxville, Tenn., for appellee.\\nBefore McALLISTER, CECIL, and WEICK, Circuit Judges.\", \"word_count\": \"2658\", \"char_count\": \"15599\", \"text\": \"PER CURIAM.\\nIn an action for damages for negligence arising out of a collision between a truck in which appellee Evans was riding as a guest, and an automobile owned by one of the appellants, who was riding in it at the time of the accident while it was being driven by another appellant who was the son of the owner, the jury brought in a verdict in favor of appellee, upon which judgment was entered. Error is claimed because of the failure of the district court to charge the jury on \\\"remote contributory negligence\\\" under the law of Tennessee, and it is claimed that, because of such error, the jury, which could have mitigated the damages, rendered an excessive verdict.\\nThe district court refused to charge the jury on remote contributory negligence, on the ground that it was not applicable to the case. The court, however, did charge that negligence was the failure to exercise ordinary care; that appellee, although a guest in the truck, was chargeable with the duty of exercising ordinary care for his own safety; that if on this occasion, or prior to this occasion, Mr. Berry, the so-called host driver of the truck in which appellant was riding as a guest, was driving the truck in a negligent manner, or, in the driving of it, he was failing to exercise the ordinary care of an ordinarily prudent person under the circumstances that then existed, then it was the duty of Mr. Evans to call attention to his failure to exercise ordinary care; and that if Mr. Berry then failed to heed the call of Mr. Evans, and continued to drive negligently, then it was appellee's duty to continue to tell him to drive with care, and that if the jury thought that, under the circumstances, he was driving so negligently for a sufficient length of time, and would not pay any attention to appellee, if he asked him to drive carefully, and that he did not drive carefully, then the jury would be at liberty to say that appellee should have demanded that Mr. Berry stop the truck, and that appellee should get out of the truck in order to protect himself. The court stated: \\\"The question is, was or was not Mr. Evans (the appellee) guilty of any negligence, contributory negligence, under the circumstances.\\\"\\nAppellants do not refer to any negligence on the part of appellee that they characterize as remote contributory negligence.\\nWe have examined the cases cited, which, however, were not quoted or commented upon by appellants, in support of their claim that it was error on the part of the district court not to charge, as requested, on the subject of the alleged remote contributory negligence of appellee.\\nIn Bejach v. Colby, 141 Tenn. 686, 214 S.W. 869, the trial court had charged the jury that if it believed, from the evidence, that plaintiff was guilty of gross contributory negligence, there could be no recovery regardless of whether it was one of the proximate causes of the accident. On appeal, it was held by the Supreme Court of Tennessee that the instruction was erroneous, since contributory negligence that proximately contributed to the injury is a bar to the action. The court went on to say that \\\"where negligence on the part of the plaintiff is remotely connected with the cause of the injury, the question to be determined is whether the defendant, by the exercise of ordinary care and skill, might have avoided the injury. If he could have done so, the remote and indirect negligence of the plaintiff cannot be set up as an answer to the action. Such negligence will only be considered in mitigation of the damages. If the plaintiff were guilty of negligence which directly and proximately contributed to bring about the injury, it would make no difference whether that negligence was slight or gross, he could not recover. If, however, such negligence did not directly contribute to bring about the injury, the plaintiff can recover; the degree of negligence being immaterial, except in so far as it goes in mitigation of the damages.\\\"\\nIn Railroad Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, the Supreme Court of Tennessee said:\\n\\\"In Byrne v. K. C., F. S. & M. R. R., 61 F. 605, 9 C.C.A., 679, 24 L.R.A. 693, a case which arose in Tennessee, Judge Lurton, in commenting on this subject said as follows: 'The Supreme Court of Tennessee has been very stringent in requiring that trial judges should instruct juries, in cases under this statute, that they must reduce damages for contributory negligence.\\n\\\" 'The court should also say to the jury that they must, if they find that the bell was not ringing, reduce the damages to be awarded to the plaintiff by reason of the intestate's gross negligence.' etc.\\\"\\nIn Saucier v. Roberts, 2 Tenn.App. 211, the facts disclose that a young girl, alighting from a streetcar, saw defendant's automobile approaching, and attempted to run from the streetcar track to the sidewalk before the automobile could reach her, but was struck down by the automobile before she reached the sidewalk. On rendition of a verdict of $300, the plaintiff assigned error on the ground that the trial court had refused a proposed instruction to the jury that if defendant had been driving his car more than twenty miles per hour in violation of the statute, then he was guilty of willful misconduct, and the plea of contributory negligence was not available to him. On review, the Court of Appeals of Tennessee held that while it was true that contributory negligence is not ordinarily available as a defense to one who acted willfully and wantonly, and that, if the wrong on the part of the defendant is so wanton and gross as to imply a willingness to inflict the injury, the plaintiff may recover, notwithstanding his own ordinary negligence. However, the court said that merely because a defendant is operating an automobile in violation of the statute fixing the speed limit at twenty miles per hour, he is not necessarily guilty of willful misconduct that will preclude him from relying on the proximate contributory negligence of the plaintiff as a defense. The Court of Appeals held that, in any event, assuming that plaintiff's request to charge had been correct, the refusal of the trial judge to give it worked no harm to plaintiff, insofar as the request related to proximate contributory negligence on the part of the plaintiff, for the reason that the jury found all of the issues touching the negligence of the defendant and the proximate contributory negligence, in favor of plaintiff. This, said the court, was the necessary implication from the verdict, as the jury was instructed that if the plaintiff was guilty of negligence which proximately contributed to the occurrence of the accident, the verdict of the jury should be for the defendant. The court declared that, in the ascertainment of the nature and extent of plaintiff's injuries and the amount of damages which would compensate plaintiff therefor, it was the duty of the jury to find whether plaintiff was guilty of any remote contributory negligence, and, if so, to reduce her damages accordingly. The trial court had charged the jury: \\\"If you find plaintiff was guilty of some negligence but that this negligence did not directly and proximately cause or contribute to the injury, then this matter must be taken into consideration by you and a reduction must be made from the damages that otherwise you would allow.\\\" The foregoing, the court said, was a proper instruction. From the above, it appears that there was substantial evidence from which the jury could have found the plaintiff to have been guilty of negligence in trying to run across the street to the sidewalk before the automobile could reach her.\\nIn McClard v. Reid, 190 Tenn. 337, 229 S.W.2d 505, the Supreme Court was called upon to pass upon the correctness of the following instruction of the trial court to the jury:\\n\\\"You are further instructed, however, that if you find from the preponderance of the evidence and believe therefrom that the plaintiff was guilty of some act of negligence upon the occasion or accident, but that this failure to exercise due care was not one of the direct and proximate causes of the collision or accident, but was only a remote circumstance or fact, then your verdict will be for the plaintiff, provided you further find and believe from the evidence that the defendant was guilty of one or more acts of negligence charged against him, provided that you further find from the evidence that the negligence of the defendant thus found was the direct and proximate cause of the accident and injury.\\\"\\nThe court held that the foregoing was error, inasmuch as the effect of this charge was \\\"to affirmatively charge that remote contributory negligence is not to be considered by the jury. The law of this State is to the contrary. It has long been the law in Tennessee that remote contributory negligence must be considered by the jury in mitigation of damages.\\\"\\nIn Anderson v. Carter, 22 Tenn.App. 118, 118 S.W.2d 891, where a judgment in favor of a plaintiff in a personal injury case was affirmed, the court said:\\n\\\"The general rule is that the question of the contributory negligence .of plaintiff, as well as the question of the negligence of the defendant, is one for submission to the jury under proper instruction by the Court. The exception to the rule is that where there is no conflict in the evidence, or where under all the evidence reasonable minds could reach but one conclusion, and then it becomes a question of law for the Court. All reasonable inferences are to be resolved in favor of the jury verdict.\\n\\\"Under the facts of the present case, when viewed most favorably to plaintiff's case, we cannot say that reasonable men could not agree as to whether the conduct of plaintiff constituted proximate negligence, so as to bar a recovery, or remote negligence which contributed to the accident. While it is true the plaintiff did not observe the city ordinance requiring him to bring his ear to a stop before entering the street, yet this of itself, although negligence per se, did not, as a matter of law, constitute remote contributory negligence, but it remained for the jury to determine the question as to whether his failure to bring his ear to a full stop before crossing the intersection constituted contributory negligence to the collision and resulting injuries. The jury could have reasonably reached the conclusion that if the automobile driven by the defendant was travelling at a rate of speed of approximately 40 miles per hour and was about 200 feet east of the street intersection when plaintiff entered the street intersection, that the violation by the defendant of the city ordinance of 25 miles per hour was the sole, proximate, and efficient cause of the collision, notwithstanding plaintiff's failure to bring his ear to a complete stop before entering and attempting to cross the street.\\\"\\nSeveral of the cases on this subject in Tennessee refer, for support of the rule therein announced, to Railroad Co. v. Martin, 113 Tenn. 266, 278, 87 S.W. 418, 421, where it was stated:\\n\\\"The wisdom and soundness of this rule must be apparent on a moment's reflection, for if, as a matter of law, it is not the duty of the jury, in the assessment of damages, to mitigate the recovery in proportion to the contribution of the plaintiff to the injuries, cases would occur where gross injustice would be inflicted upon defendants, in the exercise of the jury's discretion, in ignoring altogether the contributory negligence of the plaintiff.\\\"\\nThe above rule applies where contributory negligence is proved.\\nSee also 22 Tennessee Law Review 1030 referring to the doctrine of remote contributory negligence as peculiar to the State of Tennessee. Because the facts in the foregoing cases are so dissimilar to those of the case at bar, we do not consider any of them to be here controlling.\\nThe pleadings of appellants raised only the question of the proximate contributory negligence of appellee Evans. There were pretrial proceedings, and the order of the district court thereon set forth the theories upon which appellants relied to defeat recovery. While such order disclosed that appellants relied on the contributory negligence of appellee Evans to defeat recovery, no mention was made of the defense of remote contributory negligence. But even without consideration of the foregoing, we are of the opinion that other factors obliterate the defense of remote contributory negligence.\\nEvans was a poor man. He lives at the Soldiers' Home in Johnson City. Twenty years ago, he had been a \\\"woods foreman\\\" for the Ritter Lumber Company. The only work he has done since that time was, off and on, as a migrant farm worker on short-job farm hand work in Florida and elsewhere. Mr. Berry, the \\\"host driver\\\" of the car in which Evans was riding at the time of the accident, had given him a job two days before, skidding pulpwood. Mr. Berry did the cutting, and Evans hooked the harness onto the wood, and drove a mule with the load to Mr. Berry's truck. Evans was knocked unconscious in the collision and did not know when he was hit. It is to be emphasized that Evans was a guest, and that no possible negligence of Mr. Berry could be imputed to him. It is difficult to imagine this poor, migrant worker, Evans, with his experience, and in his circumstances, telling Mr. Berry, his \\\"boss,\\\" how to drive his truck, especially at a time when judgment and experience in driving a car were crucial. It was too thin a case, with no shadow of evidence, to permit this court to hold that it was error on the part of the district court to submit to the jury whether such a guest, under these circumstances, was guilty of remote contributory negligence.\\nWe are not persuaded, and do not believe that it is the rule in Tennessee that in every negligence case, it is necessary to charge the jury on the possible remote contributory negligence of a plaintiff, especially where the jury finds him guilty of no negligence whatever.\\nIn the instant case, we can find no evidence upon which the district court could have properly based a charge to the jury on remote contributory negligence \\u2014 unless in every negligence case, after absolving the plaintiff of any negligence, it is necessary to instruct the jury that it can mitigate the damages on the ground of remote contributory negligence. It seems to us that there must be something in the case to show such remote contributory negligence before plaintiff's damages can be so mitigated.\\nIn interpreting and passing upon the subject of remote contributory negligence, which is a doctrine peculiar to the law of Tennessee, and which apparently has aspects that have often perplexed the trial courts of that state, as well as leading authorities on the law of torts (see 22 Tennessee Law Review 1030, 1038), we attach importance to the circumstance that the district court, in ruling upon this question, had been an experienced practitioner in the law in that state, and has, for a number of years, been an experienced member of the federal judiciary of Tennessee; and we concur in the view expressed by the district judge that remote contributory negligence was not applicable in this case.\\nIn consideration of the foregoing, the judgment of the district court is affirmed.\"}"
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+"{\"id\": \"284753\", \"name\": \"FAMILY SMALL LOAN CO. OF RICHMOND, Inc., v. MASON. In re MASON\", \"name_abbreviation\": \"Family Small Loan Co. of Richmond, Inc. v. Mason\", \"decision_date\": \"1933-10-14\", \"docket_number\": \"No. 3524\", \"first_page\": \"207\", \"last_page\": \"207\", \"citations\": \"67 F.2d 207\", \"volume\": \"67\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the Fourth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T23:25:53.578945+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FAMILY SMALL LOAN CO. OF RICHMOND, Inc., v. MASON. In re MASON.\", \"head_matter\": \"FAMILY SMALL LOAN CO. OF RICHMOND, Inc., v. MASON. In re MASON.\\nNo. 3524.\\nCircuit Court of Appeals, Fourth Circuit.\\nOct. 14, 1933.\\nSimeon M. Atkinson, of Richmond, Va. (Walter M. Evans, Virgil R. Goode, and W. H. Cardwell, all of Richmond, Va., on the brief), for appellant.\\nT. Nelson Parker, of Richmond, Va., for appellee.\\nBefore PARKER, NORTHCOTT, and SOPER, Circuit Judges.\", \"word_count\": \"406\", \"char_count\": \"2280\", \"text\": \"PER CURIAM.\\nThis is an appeal in a bankruptcy case from an order staying proceedings in a state court on a claim alleged to be a dischargeable debt of the bankrupt. While the pleadings in the state court were not made a part of the record, it is admitted by counsel that the action was one for fraud and deceit. The facts were stipulated; and from this stipulation it appears that the bankrupt had obtained $100 from appellant by means of a false statement to the effect that he owed no other debts, whereas in fact he was largely indebted at the time. This constituted the obtaining of money by false pretenses and resulted in the creation of a liability which would not be discharged by bankruptcy. Forsyth v. Vehmeyer, 177 U. S. 177, 182, 20 S. Ct. 623, 44 L. Ed. 723; Friend v. Talcott, 228 U. S. 27, 33 S. Ct. 505, 57 L. Ed. 718. A court of bankruptcy may stay suits against the bankrupt, not involving his property, only where same are founded upon claims from which a discharge would be a release. 11 USCA \\u00a7 29 (a). And a discharge will not release a bankrupt from liabilities for obtaining property by false pretenses or false representations. 11 USCA \\u00a7 35 (second). Since, therefore, it was admitted that the suit in the state court was one to enforce a liability arising out Of the obtaining of money by false pretenses, it was not one in which the court of bankruptcy was authorized to stay proceedings. Interesting questions discussed in the briefs as to whether the bankruptcy court should hear evidence on the nature of the debt where the pleadings in the state court show a debt that is not dischargeable, need not be considered, as here the court considered the evidence presented in the form of a stipulation by counsel; and this evidence, as well as the pleadings in the state court, showed a debt which was not dischargeable. The order of the court below will be reversed.\\nReversed.\"}"
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index 0000000000000000000000000000000000000000..2c1dd8b825e1cbe47f01b69a74c8c414a0d867ef
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+"{\"id\": \"3191027\", \"name\": \"McQUAY, INC., Plaintiff, v. SAMUEL SCHLOSBERG, INC., Defendant\", \"name_abbreviation\": \"McQuay, Inc. v. Samuel Schlosberg, Inc.\", \"decision_date\": \"1971-01-19\", \"docket_number\": \"No. 4-70 Civ. 327\", \"first_page\": \"902\", \"last_page\": \"908\", \"citations\": \"321 F. Supp. 902\", \"volume\": \"321\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the District of Minnesota\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:16:30.854086+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"McQUAY, INC., Plaintiff, v. SAMUEL SCHLOSBERG, INC., Defendant.\", \"head_matter\": \"McQUAY, INC., Plaintiff, v. SAMUEL SCHLOSBERG, INC., Defendant.\\nNo. 4-70 Civ. 327.\\nUnited States District Court, D. Minnesota, Fourth Division.\\nJan. 19, 1971.\\nDorsey,' Marquart, Windhorst, West & Halladay, by John D. Levine, and Joseph Edward Olson, Minneapolis, Minn., for plaintiff.\\nRobins, Davis & Lyons, by Gary H. Levinson, Minneapolis, Minn., for defendant.\", \"word_count\": \"3422\", \"char_count\": \"21051\", \"text\": \"NEVILLE, District Judge.\\nPlaintiff, a Minnesota based manufacturing corporation, in bringing this diversity action has attempted to effect service of process upon the defendant, a New York corporation, under the Minnesota long-arm statutes, Minn.Stat. \\u00a7 303.13 Subd. 1(3) and 543.19 Subd. 1. Defendant is a heating and air conditioning contractor with its principal and only office and place of business in New York City. It is one of plaintiff's customers. The only connection it has or has had with the State of Minnesota is that it submitted a purchase order to plaintiff to buy some of its Minnesota manufactured air conditioning equipment. Defendant has no office nor agent in Minnesota, has no license to do business in Minnesota and has no telephone, address, agents or representatives in Minnesota. Defendant has never come into Minnesota to solicit any business. Rather in the instance involved in the case at bar as on previous occasions an agent for plaintiff, operating within the State of New York solicited defendant to make a purchase of plaintiff's product or goods. The purchase contract was negotiated and executed in New York. Delivery of the equipment subsequently was made in New York. The purchase price was payable in Minnesota.\\nDefendant claims the equipment sold was defective and that plaintiff has breached its contract and warranties. It has thus refused to pay some $90,000 of the purchase price for the recovery of which this suit is brought. The equipment was used in three different installations, two in the State of New York and one in New Jersey.\\nThe only portion of the contract performable in Minnesota is the payment of the purchase price. Plaintiff does point out, however, that the parties had substantial negotiations prior to commencement of this suit in an effort to adjust their differences and this involved correspondence with and telephone calls to and from plaintiff and its counsel in Minnesota. Further, plaintiff and defendant have had business relationships with each other over a period of many years prior to the present contract in dispute.\\nPlaintiff takes the view that defendant's purchase order engendered substantial activity in Minnesota, caused plaintiff to manufacture equipment costing some $147,865.13 and constituted sufficient activity within, and minimal contracts with, the State of Minnesota to constitute \\\"doing business\\\" in Minnesota within the meaning of Minn.Stat. \\u00a7 303.13 Subd. 1(3) which provides:\\n\\\"(3) If a foreign corporation makes a contract with a resident of Minnesota to be performed in whole or in part by either party in Minnesota, or if such foreign corporation commits a tort in whole or in part in Minnesota against a resident of Minnesota, such acts shall be deemed to be doing business in Minnesota, by the foreign corporation and shall be deemed equivalent to the appointment by the foreign corporation of the secretary of the state of Minnesota and his successors to be its true and lawful attorney upon whom may be served all lawful process in any ac tions or proceedings against the foreign corporation arising from or growing out of such contract or tort. Such process shall be served in duplicate upon the secretary of state . The making of the contract or the committing of the tort shall be deemed to be the agreement of the foreign corporation that any process against it which is so served upon the secretary of state shall be of the same legal force and effect as if served personally within the state of Minnesota.\\\"\\nIt is clear that the contract literally is \\\"to be performed in whole or in part by either party in Minnesota\\\" ; that plaintiff is a resident of Minnesota; that the purchase price was to be paid to plaintiff in Minnesota; and that the goods were to be manufactured in Minnesota. Plaintiff claims the combination of engendering activity within Minnesota by submitting a purchase order, the contract provision for payment of the purchase price in Minnesota, the long-distance contracts with plaintiff and with Minnesota counsel in attempting to adjust the present dispute and the fact of past dealings between the parties over many years, taken together, are sufficient contact with and activities within the State of Minnesota to permit the service of process which it made on the Minnesota Secretary of State under this long-arm statute.\\nAlternatively plaintiff claims the most recently enacted (1969) Minnesota long-arm statute \\u00a7 543.19 Subd. 1 applies. This provision as follows:\\n\\\"As to a cause of action arising from any acts enumerated in this subdivision, a court of this state with jurisdiction of the subject matter may exercise personal jurisdiction over any foreign corporation or any non-resident individual, or his personal representative, in the same manner as if it were a domestic corporation or he were a resident of this state. This section applies if, in person or through an agent, the foreign corporation or non-resident individual;\\n\\n(b) Transacts any business within the state,\\n-x- *\\nSubd. 2. The service of process may be made by personally serving the summons upon the defendant outside of this state with the same effect as though the summons had been personally served within this state.\\\"\\nPlaintiff contends, for all of the reasons above recited, that this statute also permits personal service on defendant outside the state. Accordingly plaintiff effected such personal service on defendant through the United States Marshal in New York.\\nAs to both statutes plaintiff claims after pointing out that read literally by their terms they apply in this case:\\n(1) The courts of the State of Minnesota would uphold service of process in the manner here made and\\n(2) The securing of in personam jurisdiction in this case is consistent with and not violative of federal due process.\\nAny plaintiff, when challenged, has the burden to prove that it has obtained in personam jurisdiction. Williams v. Connolly, 227 F.Supp. 539, 550 (D.Minn.1964). A prima facie showing on a pretrial motion is sufficient however. Kornfuehrer v. Philadelphia Bindery, Inc., 240 F.Supp. 157, 158 (D.Minn. 1965); United Barge Co. v. Logan Charter Service, Inc., 237 F.Supp. 624, 631 (D.Minn.1964). The leading case in the Eighth Circuit is Aftanase v. Economy Baler Co., 343 F.2d 187 (8th Cir. 1965), in which the Court of Appeals analyzed the various Minnesota cases and reiterated the requirements of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), that valid exercise of jurisdiction requires that non-resident defendants have \\\"certain minimum contacts such that the maintenance of the suit does not offend \\\"traditional notions of fair play and substantial justice\\\". Aftanase recognized that more recent federal cases have \\\"greatly relaxed the due process limitations on personal jurisdiction\\\". It was there acknowledged that a state may impose stricter limitations than those proscribed by the bounds of due process and a federal court should observe these further limitations where a diversity case is instituted in a United States District Court or is one removed from a State court.\\nThe Minnesota Supreme Court has indicated that it will assert maximum jurisdiction consistent with the limitations imposed by due process. This court interprets the Minnesota Supreme Court holdings to mean that the outer limits of due process are co-extensive and equate with the limits of permissive service of process on foreign corporations under long arm statutes. In McNeely v. Clayton & Lambert Mfg. Co., 292 F.Supp. 232, 236 (D.Minn. 1968), this court observed that Minnesota will assert maximum jurisdiction permissible, citing a number of Minnesota cases including Dahlberg Co. v. Western Hearing Aid Center Ltd., 259 Minn. 330, 107 N.W.2d 381, cert. denied 366 U.S. 961, 81 S.Ct. 1921, 6 L.Ed.2d 1253 (1961). See the subsequent case of Hunt v. Nevada State Bank, 285 Minn. 77, 172 N.W.2d 292 (1969), cert. denied Burke v. Hunt, 397 U.S. 1010, 90 S.Ct. 1239, 25 L.Ed.2d 423 (1970).\\nSince the reaches of due process are co-extensive with m personam jurisdiction allowed by the Minnesota Supreme Court, in reality it becomes immaterial to determine what action the Minnesota Supreme Court would take in this case since the Minnesota Supreme Court could not exceed limitations of due process and would not be more restrictive. The Minnesota Supreme Court in frequent utterances has however required \\\"at least minimal\\\" contacts with Minnesota. This court doubts whether the Minnesota Supreme Court would sustain jurisdiction in this instance despite certain broad language in the most recent cases of Hunt v. Nevada State Bank, supra, and Wuertz v. Garvey, 287 Minn. 353, 178 N.W.2d 630, 631 (1970), both sustaining jurisdiction under the long-arm statutes. The prior cases of Fourth Northwestern Nat. Bank v. Hilson Industries Inc., 264 Minn. 110, 117 N.W.2d 732 (1962), and Marshall Egg Transport Co. v. Bender-Goodman Co. Inc., 275 Minn. 534, 148 N.W.2d 161 (1967), particularly the former, are persuasive. The Hilson Industries case was a suit to recover on promissory notes which grew out of a transaction whereby a Minnesota manufacturer of automatic ice vending machines sold 50 coolers to a foreign corporation in Ohio. After a dispute and a trip to Ohio by a representative of the Minnesota manufacturer, certain stipulations were then arrived at, including the execution of three promissory notes. The notes were payable in Minnesota and were then subsequently assigned to the Fourth Northwestern National Bank which, after commencing suit thereon, .reassigned the same to the original payee who continued the suit. The court quashed the service of summons and dismissed the action on the basis that application there of Section 303.13 violated the due process provisions of the Fourteenth Amendment. The court held that where the only connection with Minnesota is the fact that the notes are payable here, such is not sufficient jurisdictional conferment. Counsel for plaintiff attempts to draw a distinction between the fact that the suit in Hilson Industries was on the notes rather than on the underlying contract purchase price and that such \\\"led the court to ignore the substantial impact on the commerce of Minnesota which was foreseeable and produced by defendant's consummation of the transaction involving its purchase of 50 large coolers produced by plaintiff in Minnesota.\\\" This is a specious distinction. It seems to this court that the Minnesota Supreme Court would be most apt to follow the rationale of Hilson Industries and hold that long-arm service is ineffective in a case such as at bar where the only connection with Minnesota is the fact that the purchase price is payable here and to decree that such would be in violation of the due process provision of the Fourteenth Amendment. The Marshall Egg Transport case is an a fortiori from Hilson Industries for there certain eggs, the property of an Iowa corporation, were shipped from Iowa to New Jersey and later to New York, never coming into nor being produced in Minnesota. The only connection with Minnesota was that Marshall Egg Transport Co. \\\"brokered\\\" the transaction, conferred with defendant over the long-distance phone and a $3,600 check (payment later stopped) was mailed to Minnesota. The court held that the application of Minn.Stat. \\u00a7 303.13 would violate due process. The purchase order, if any in that ease, generated no manufacturing activity in Minnesota.\\nFundamentally it seems to the court that to permit in personam jurisdiction in this case under either of the Minnesota long-arm statutes is to offend traditional notions of fair play and substantial justice. If plaintiff's position is sound, then it or any other Minnesota manufacturer can sue all of its customers wherever they may be located in the .United States who for good or bad reason have failed to pay their bills or the purchase price of goods. Counsel would argue that the activity generated by virtue of a corporation in a foreign state giving a salesman who is travelling in that foreign state an order which is to be filled in Minnesota is sufficient minimal contacts to give jurisdiction. By the same token, if this were sound, the plaintiff could be sued in any state where it submits a purchase order for raw materials and supplies and the goods are shipped to Minnesota. This concept almost completely obliterates state lines and would lead to the result that anyone who deals with a Minnesota resident in any way or buys a product manufactured by any Minnesota company, can be brought into the Minnesota courts to respond to a suit.\\nThe general philosophy of long-arm statutes is to protect citizens of a state where a nonresident comes into the State directly or indirectly to sell something or solicit sales, or where, even though out of state, a nonresident sells a product which is brought into or comes to rest in the State. The nonresident thus receives the benefit and protection of the state's laws and profits or hopes to from its adventure therein. The nonresident is the aggressor or initiator. It is appropriate that such a nonresident seller should respond to service of process in that state. Quite the contrary, however, where in a case such as at bar the plaintiff is the movant, the aggressor so to speak not in Minnesota but by going to New York, soliciting defendant's business, making a contract in New York, selling the defendant merchandise to be manufactured in Minnesota and delivered in New York and the price to be remitted to plaintiff in Minnesota. If merely because the manufacturing process and payment of the price is to occur in Minnesota such confers jurisdiction in Minnesota, then it's hard to conceive of any case where the long-arm statutes do not apply. The Minnesota Supreme Court itself in the Hilson Industries case supra, drew the distinction between suing a non-resident seller and invoking Minn.Stat. \\u00a7 303.13 against a non-resident buyer.\\nThe court said:\\n\\\"We believe it is significant that the Beck [Beck v. Spindler, 256 Minn. 543, 99 N.W.2d 670]; Adamek [Adamek v. Michigan Door Co., 260 Minn. 54, 108 N.W.2d 607], and Paulos [Paulos v. Best Securities Inc., 260 Minn. 283, 109 N.W.2d 576] cases all resulted in the protection of individuals damaged in one way or another by nonresident defendants who sold their products in this state or whose products found their way here and caused injury to a Minnesota resident. In each instance the nonresident defendant had been the aggressor, so to speak, and had had substantial contact with the forum, invoking its protec tion for the privilege of doing business here. It had subjected itself to the reciprocal obligation of amenability to suit in return for the right to compete for sales in our market places. \\\" 117 N.W.2d at 735\\n-K-\\n\\\" -\\\\ye have, instead, a corporate resident plaintiff who has taken the initiative in response to a nonresident corporation's inquiries. The nonresident corporation enjoys no particular privilege or protection in purchasing products from the resident seller, none akin to the rights exercised by a party seeking to distribute its products within the forum state. It would seem short-sighted indeed to discourage the sale of Minnesota products to nonresidents by subjecting buyers to our jurisdiction where the contacts are so casual.\\\" 117 N.W.2d at 736\\nAgain, on the- question of repeated transactions, the Minnesota Supreme Court stated the following in Marshall Egg Transport, supra:\\n\\\"* \\u2022 [W]here a single transaction would lack the degree of participation necessary to require defendant's submission to the jursidiction of this state, such a deficiency could not be cured merely by repeated similar transactions.\\\" 148 N.W.2d at 164\\nPlaintiff's position is not completely without support. See Simpson Timber Co. v. Great Salt Lake Minerals & Chemicals Corp., 296 F.Supp. 243 (D. Or.1969), which appears under an Oregon long-arm statute to adopt a theory compatible to plaintiff's contention. That court seemed to feel that the \\\"causing of a consequence in the forum state\\\" can satisfy the minimum contacts test of International Shoe Company. See also Southern Machine Company v. Mohasco Industries, Inc., 401 F.2d 374 (6th Cir. 1968); Custom Leasing, Inc. v. Gardner, 307 F.Supp. 161 (N.D.Miss. 1969). On the contrary, the United States Supreme Court in Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), stated:\\n\\\" But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the 'minimal contacts' with that State that are a prerequisite to its exercise of power over him.\\\" 357 U.S. at 251, 78 S.Ct. at 1238..\\nElectro-Craft Corp. v. Maxwell Electronics Corp., 417 F.2d 365 (8th Cir. 1969), is sufficiently distinguishable _ on its facts to be inapposite here.\\nThe latest case in this court, dutifully and responsibly called to this court's attention by plaintiff's counsel himself, is Guardian Packaging Corp. v. Kapak Industries, Inc., 316 F.Supp. 952 (D.Minn. 1970). This was a motion to dismiss by a nonresident purchaser on whom service had been attempted under Minn.Stat. \\u00a7 303.13 Subd. 1(3). The court rather clearly held that in view of the defendant's status as a nonresident purchaser from a Minnesota seller \\\"single act\\\" long-arm service was not a sufficient basis for in personam jurisdiction interpreting the Minnesota cases.\\nIn sum, what plaintiff asks is that this court hold that any purchaser from any Minnesota based corporation where goods have been manufactured in Minnesota may be sued in the Minnesota courts within due process limitations, and thus in diversity actions in this court, irrespective of whether that defendant has any connection with the State of Minnesota other than that the purchase price is payable in Minnesota and that by the submission of its purchase order the nonresident has engendered some activity within the State. It would seem to this court that to do so would violate traditional standards or notions of fair play and substantial justice and would go beyond the parameters permitted by the Fourteenth Amendment due process clause.\\nTraditional notions of fair play contemplate that a defendant has the right to be sued in the jurisdiction and venue of his residence. So within Minnesota itself, if a defendant is sued even in a county other than that in which he resides, he is entitled automatically and without any order of court in the first instance to a change of venue to the county of his residence unless the cause of action arose in the county where sued. Minn.Stat. \\u00a7 542.10. The rationale behind this long time statutory precedent is that a defendant ought to be entitled to defend himself among people and in a community where he resides and is known, his witnesses generally will reside in or near the place of his residence, his counsel will be from his community, the goods he has purchased (if the case is one of this type) likely will be situate in his home community. Such concepts have roots deep in common law traditions. It would seem that this is what the United States Supreme Court meant by \\\"traditional notions of fair play and substantial justice\\\" in International Shoe, supra. The above arguments and reasoning become far more cogent and applicable when one thinks in terms of two states, rather than counties within a state, and particularly where separated by some 1,500 or more miles. These arguments the court recognizes are not applicable under long-arm statutes where a defendant takes the initiative or is the aggressor and goes into another state to transact business or to sell his wares.\\nCertainly in a case such as at bar where the alleged defective equipment costing over $100,000 is in New York and nearby New Jersey, witnesses who have used it and experienced it are there and only the manufacturer is in Minnesota, the court certainly would be faced with a motion for a change of venue. As a practical matter, were the rule not as herein decided, the federal courts would be presented in many if not most cases with motions to transfer under 28 U.S. C. \\u00a7 1404(a) for forum non conveniens and frequently such motions would of necessity have to be granted. This is a relevant consideration. See Guardian Packaging Corp. v. Kapak Industries, Inc., supra at p. 955\\nA separate order quashing service and dismissing the action has been entered.\"}"
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+"{\"id\": \"3251191\", \"name\": \"Yuanliang LIU, Petitioner, v. U.S. DEPARTMENT OF JUSTICE, Attorney General Alberto Gonzales, Respondents\", \"name_abbreviation\": \"Yuanliang Liu v. U.S. Department of Justice\", \"decision_date\": \"2006-07-11\", \"docket_number\": \"Docket No. 05-0031-AG\", \"first_page\": \"106\", \"last_page\": \"118\", \"citations\": \"455 F.3d 106\", \"volume\": \"455\", \"reporter\": \"Federal Reporter 3d Series\", \"court\": \"United States Court of Appeals for the Second Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"Before CALABRESI, WESLEY, and HALL, Circuit Judges.\", \"parties\": \"Yuanliang LIU, Petitioner, v. U.S. DEPARTMENT OF JUSTICE, Attorney General Alberto Gonzales, Respondents.\", \"head_matter\": \"Yuanliang LIU, Petitioner, v. U.S. DEPARTMENT OF JUSTICE, Attorney General Alberto Gonzales, Respondents.\\nDocket No. 05-0031-AG.\\nUnited States Court of Appeals, Second Circuit.\\nSubmitted: Jan. 30, 2006.\\nDecided: July 11, 2006.\\nKhagendra Gharti-Chhetry, Chhetry & Associates P.C., New York, N.Y., for Petitioner.\\nJames S. Carroll III, Assistant United States Attorney, for Anthony J. Jenkins, United States Attorney for the Virgin Islands, St. Thomas, V.I., for Respondents.\\nBefore CALABRESI, WESLEY, and HALL, Circuit Judges.\\nPursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Alberto R. Gonzales is automatically substituted for for mer Attorney General John Ashcroft as the respondent in this case.\", \"word_count\": \"5856\", \"char_count\": \"36789\", \"text\": \"CALABRESI, Circuit Judge.\\nIn August 2002, petitioner Yuanliang Liu (hereinafter \\\"petitioner\\\" or \\\"Liu\\\"), a native and citizen of the People's Republic of China, applied for asylum and withholding of removal under the Immigration and Nationality Act (\\\"INA\\\"), 8 U.S.C. \\u00a7 1158, 1281, and for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (\\\"CAT\\\"), Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. In January 2004, two years after petitioner first came to the United States, an immigration judge (\\\"U\\\") denied Liu's claims on adverse credibility grounds. The IJ also concluded that petitioner's application was frivolous under Section 208(d) of the INA, 8 U.S.C. \\u00a7 1158(d). Both of these determinations were affirmed, without opinion, by the Board of Immigration Appeals (\\\"BIA\\\"). Petitioner subsequently sought our review of the BIA's decision.\\nBefore us, petitioner challenges the IJ's credibility decision and her finding of frivolousness. We conclude that substantial evidence supports the credibility ruling against Liu. We remand the finding of frivolousness, however, to give the BIA an opportunity, in the first instance, to formulate standards for deciding when an asylum seeker's application may be deemed frivolous.\\nBACKGROUND\\nAfter living his entire life in the Fujian province of China, petitioner, then 35-years old, fled his native country for the United States and arrived in Los Angeles in January 2002. He left behind two children \\u2014 a son born in September 1989 and a daughter born in May 1991 \\u2014 and his wife of twelve years. In August of 2002, petitioner submitted an 1-589 application (\\\"original application\\\") in which he explained that he feared persecution because he and his wife were practitioners of Falun Gong. In this original application, Liu asserted that although China's family planning policy made it \\\"stressful\\\" for him and his wife to have a second child after the birth of their son, they managed to do so, and his wife gave birth to their daughter in 1991.\\nNearly a year after petitioner completed his first written application, Liu filed an amended 1-589 application (\\\"amended application\\\"). In it, petitioner claimed that his wife was forced to wear an intrauterine device (\\\"IUD\\\") after the birth of their first child. According to the amended statement, the IUD was \\\"lost automatically\\\" at some point, and, by August 1990, petitioner's wife was pregnant for a second time. Liu reported that his wife's pregnancy was eventually detected by family planning officials who made her abort her pregnancy on April 21, 1991. The revised application also said that, shortly after the coerced abortion, petitioner's older sister discovered an abandoned infant girl, whom Liu and his wife decided to adopt and raise as their own.\\nAt a full merits hearing, petitioner adhered to the narrative he had presented in his amended application rather than the one that he gave in his original application. Thus, Liu testified that his wife was required to implant an IUD once their son was born; after petitioner's wife lost her IUD, became pregnant, and missed several required IUD checkups, she was forced to have an abortion. Liu reiterated that he and his wife had adopted an abandoned baby that his sister had found a few weeks after his wife's abortion. Petitioner also added that family planning officials learned of the unauthorized adoption in December 1996, and, as a result, imposed a 14,000 RMB fine. Liu was able to pay off 5,000 RMB in October 1998, but never settled the remainder of the penalty.\\nIn addition, petitioner recounted that, starting in June 1998, his wife found refuge from the emotional pressures following the forced abortion and the undisclosed adoption by practicing Falun Gong. Once the Chinese government outlawed the practice of Falun Gong in July 1999, however, Liu and his wife were both instructed to attend reeducation courses. Petitioner speculated that he was associated with his wife's activities because members of Falun Gong had practiced at his home. After he and his wife had each failed to attend these mandatory sessions, police officers confiscated books and videotapes relating to Falun Gong from their home (at a time when neither of them were home). Liu testified further that he and his wife separately went into hiding after they learned of these events. Subsequently, while petitioner's wife remained in China (at a different home than the one they shared), Liu crossed into Thailand in August 2001, and paid his way to America.\\nDuring cross-examination, the government asked Liu to address (a) the seemingly significant omissions in his original application, ie., his wife's IUD and coerced abortion, and the purported adoption of their second child, all of which were mentioned for the first time in Liu's amended application and at his asylum hearing; (b) the formal references in his household registration booklet to the daughter he had supposedly adopted without authorization; and (c) the fact that a letter from his wife was not mailed from the town in which she had purportedly relocated.\\nAt the end of the hearing on January 22, 2004, the IJ issued her ruling, denying petitioner's asylum claims on adverse credibility grounds and deeming his application frivolous. On December 10, 2004, the BIA affirmed the IJ's decision without opinion.\\nDISCUSSION\\nOn appeal to us, petitioner disputes both the validity of the credibility ruling against him and the IJ's finding that his asylum application was frivolous. The case therefore presents two separate questions for review: (1) whether substantial evidence supports the IJ's adverse credibility ruling, and (2) whether the IJ correctly decided that petitioner's asylum application was frivolous. The first of these is not uncommon among immigration appeals, and, based on our full review of the record, we find that \\\"the evidence so overwhelmingly supports the IJ's [adverse credibility] finding that, notwithstanding identified errors, there is no realistic possibility of a different result on remand.\\\" Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 395 (2d Cir.2005); see also Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144, 161-62 (2d Cir.2006). The second question raises issues with which we deal far less frequently and on which the BIA has, thus far, provided no substantial guidance. Under the circumstances, we conclude that it is appropriate to remand the IJ's finding of frivolousness so that the BIA may, in the first instance, develop clear standards for how these determinations should be made and evaluated. We discuss each of these two questions in turn.\\nI. Adverse Credibility\\nIn cases where the BIA summarily affirms an IJ's decision without issuing an opinion, see 8 C.F.R. \\u00a7 1003.1(e)(4), we review the reasoning and decision of the IJ directly, treating it as the final agency determination. See Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). We owe \\\"particular deference\\\" to an IJ's credibility finding, \\\"mindful that the law must entrust some official with responsibility to hear an applicant's asylum claim, and the IJ has the unique advantage among all officials involved in the process of having heard directly from the applicant.\\\" Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). Hence, our review of an IJ's credibility assessment is an \\\"exceedingly narrow inquiry to ensure that the IJ's conclusions were not reached arbitrarily or capriciously . [and] that credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice.\\\" Id. at 74 (internal citations and quotation marks omitted).\\nWe may, however, vacate and remand an adverse credibility determination if we find that the IJ has failed to \\\"act fairly in judging credibility and in assessing the sufficiency of the evidence,\\\" Cao He Lin, 428 F.3d at 394, e.g., where the IJ based the credibility ruling \\\"upon speculation or upon an incorrect analysis of the testimony,\\\" id. at 400, or where the IJ unduly relied on inconsistencies that are \\\"relatively minor and isolated and do not concern material facts,\\\" Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000) (citation omitted). Notwithstanding these types of errors, we may still affirm a credibility finding if we can confidently predict that \\\"there is no realistic possibility that, absent the errors, the IJ or BIA would have reached a different conclusion.\\\" Cao He Lin, 428 F.3d at 401.\\nIn the case before us, the IJ presented numerous grounds for her conclusion that petitioner was not credible. A number of these reasons are unavailing, and, as a consequence, do not provide support for the IJ's credibility ruling. For example, the IJ's doubts about two aspects of petitioner's testimony \\u2014 (1) that Liu's wife would not have taken greater precautions to keep her second pregnancy hidden from local authorities, and (2) that the Chinese government would countenance petitioner's failure to pay the full amount of his fine \\u2014 rested on speculation. See Zhou Yun Zhang, 386 F.3d at 74. In addition, with respect to one of the IJ's other concerns (i.e., where Liu's wife stayed while in hiding), the IJ erred in failing \\\"actively [to] appraise the explanations that an applicant, in order to rectify discrepancies in his testimony, gave.\\\" Ming Shi Xue v. BIA, 439 F.3d 111, 123 (2d Cir.2006) (citation omitted). Finally, the putative inconsistency in petitioner's testimony about reeducation classes was not supported by the record, nor did the IJ or the government bring this concern to Liu's attention during the hearing; as a result, petitioner was deprived of an opportunity to clarify this minor (and arguably nonexistent) discrepancy, which was first mentioned by the IJ in her decision. See Ming Shi Xue, 439 F.3d at 114-15; cf. Xian Tuan Ye v. Dep't of Homeland Security, 446 F.3d 289, 295 (2d Cir.2006) (per curiam).\\nThese missteps cannot be easily ignored. The IJ, however, also gave several valid grounds for doubting Liu's credibility, two of which are especially significant. First, the IJ found it \\\"important to note\\\" that Liu's daughter \\u2014 who was purportedly adopted without official authorization after being found abandoned in their village\\u2014 was registered in the household registration booklet and had an official birth certificate. When confronted with this, Liu claimed that the documents, though legitimate, were provided as a favor to petitioner's elder brother. As the IJ explained, Liu's reply, understandably, did not allay the IJ's credibility concerns. On the contrary, petitioner's testimony as to the circumstances surrounding the procurement of his supporting documents served to cast doubt on their authenticity.\\nSecond, the IJ emphasized that Liu's original 1-589 application, submitted with the aid of counsel in August 2002, stated that his wife gave birth to their second child. In his amended application, filed just a year later, petitioner claimed, as he did during his asylum hearing, that family planning officials forced his wife to abort her second pregnancy, and that afterwards he and his wife illegally adopted a child who had been abandoned in their village. When asked about the differences between the earlier and later applications, petitioner answered that he had not mentioned his wife's coerced abortion or the unauthorized adoption of their daughter because he did not realize that China's family planning practices were a potential basis for asylum.\\nThis might explain why petitioner did not emphasize and elaborate on his wife's abortion and their undisclosed adoption. It does not address, however, why petitioner suggested in his original application that his wife gave birth to their second child, rather than simply reporting (without emphasis or elaboration) that they had adopted their daughter in May 1991. The IJ rightly characterized this as the \\\"most glaring discrepancy\\\" in petitioner's case: the IJ's conclusion is supported by substantial evidence; the problem was raised and re-raised by the IJ without satisfactory resolution; and the discrepancy bears directly on the main thrust of petitioner's asylum claims.\\nTogether, these error-free grounds reflect serious and unmistakable differences between the basic premise and facts of petitioner's original asylum application, on the one hand, and the story told in all of Liu's subsequent submissions, ie., his amended application, his household registration, and his live testimony, on the other. The valid reasons on which the IJ relied, which include what the IJ described as the \\\"most glaring discrepancy\\\" in petitioner's case, easily eclipse the errors we earlier identified in the IJ's decision, which, without exception, pertain to more trivial and tangential aspects of petitioner's claims. Accordingly, we conclude, on the basis of those concerns properly found by the IJ for doubting petitioner's credibility, that \\\"notwithstanding admitted errors \\u2014 overwhelming evidence supporting the administrative adjudicator's findings makes it clear that the same decision would have been reached in the absence of the errors.\\\" Cao He Lin, 428 F.3d at 402.\\nII. Frivolous Application\\nHaving concluded that the IJ's credibility ruling was supported by substantial evidence, we turn to the second issue presented on appeal, ie., whether the IJ correctly decided that petitioner's asylum application was frivolous.\\nSection 208(d) of the INA, 8 U.S.C. \\u00a7 1158(d), as amended by the Immigration Reform and Immigrant Responsibility Act of 1996 (\\\"IRIRA\\\"), provides in relevant part:\\n(d) Asylum procedure\\n(4) Notice of privilege of counsel and consequences of frivolous application At the time of filing an application for asylum, the Attorney General shall \\u2014 \\u2022\\n(A) advise the alien of the privilege of being represented by counsel and of the consequences, under paragraph (6), of knowingly filing a frivolous application for asylum .\\n(6) Frivolous applications\\nIf the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(A), the alien shall be permanently ineligible for any benefits under this chapter, effective as of the date of a final determination on such application.\\n8 U.S.C. \\u00a7 1158(d)(4)-(6). Thus, a final decision that an asylum application is frivolous permanently forecloses the petitioner from all benefits under the immigration laws of this country.\\nBecause of the severe consequences of a finding of frivolousness under 8 U.S.C. \\u00a7 1158(d)(6), the corresponding federal regulations prescribe the parameters within which an IJ and the BIA must operate in making these determinations:\\nFor applications filed on or after April 1, 1997, an applicant is subject to the provisions of section 208(d)(6) of the Act only if a final order by an immigration judge or the Board of Immigration Appeals specifically finds that the alien knowingly filed a frivolous asylum appli cation. For purposes of this section, an asylum application is frivolous if any of its material elements is deliberately fabricated. Such finding shall only be made if the immigration judge or the Board is satisfied that the applicant, during the course of the proceedings, has had sufficient opportunity to account for any discrepancies or implausible aspects of the claim....\\n8 C.F.R. \\u00a7 208.20; see Scheerer v. U.S. Att'y Gen., 445 F.3d 1311, 1317 (11th Cir. 2006).\\nThe regulation's text indicates that a finding of frivolousness requires record evidence that an alien has (1) \\\"deliberately fabricated\\\" (2) a \\\"material\\\" element of his asylum application, and (3) has been given a \\\"sufficient opportunity\\\" to address the perceived problems with his claim. But, the BIA has not, to our knowledge, issued any decisions from which reviewing courts can derive guidance as to how to interpret and apply the regulating language.\\nSimilarly, our court has not addressed how we should evaluate frivolousness decisions on appeal. As a result, we have no binding circuit law on, inter alia, who carries the burden of proof, what degree of certainty is required, when an opportunity to be heard will be deemed sufficient, how \\\"deliberate\\\" and \\\"material\\\" a fabrication must be, and what deference the BIA owes to an I J's finding in this context.\\nSeveral other circuits, however, have begun to formulate some law in this area. From their decisions, three principles seem to be emerging. First, the Third and Eleventh Circuits have explicitly held that \\\"an adverse credibility determination alone cannot support a finding of frivolousness.\\\" Scheerer, 445 F.3d at 1317. The Third Circuit's decision in Muhanna v. Gonzales, 399 F.3d 582 (3d Cir.2005), on which the Scheerer court relied, explained:\\n[Ujnder 8 C.F.R. \\u00a7 208.20 a finding of frivolousness does not flow automatically from an adverse credibility determination in any event. Inconsistencies between testimony and an asylum application, while certainly relevant to a credibility determination that may result in the denial of an applicant's asylum claim, do not equate to a frivolousness finding under Section 1158(d)(6), which carries with it much greater consequences.\\nMuhanna, 399 F.3d at 589.\\nSecond, prompted by the requirement in 8 C.F.R. \\u00a7 208.20 that an alien be given a \\\"sufficient opportunity to account for any discrepancies or implausible aspects of the claim,\\\" the Ninth Circuit has concluded that, even where an applicant has received an opportunity to reconcile some of the inconsistencies that concerned an IJ, a finding of frivolousness is not valid unless the alien had a chance to address specifically those concerns on which the frivolousness ruling was based:\\n[Petitioner] had ample opportunities to explain the discrepancies that led to the adverse credibility finding.... To support the finding of frivolousness, however, the IJ relied with particularity on different discrepancies between what [petitioner] said and the extrinsic evidence. [Petitioner] was not given an adequate opportunity to address those additional discrepancies before the ruling on frivolousness was made.... The absence of a proper opportunity for [petitioner] to explain all discrepancies in the record, however, requires us to overturn the conclusion that the application was knowingly frivolous.\\nFarah v. Ashcroft, 348 F.3d 1153, 1158 (9th Cir.2003) (internal quotation marks omit ted).\\nIn all three cases discussed above, Scheerer, Muhanna, and Farah, the IJ's finding of frivolousness was overturned. These, along with Alexandrov v. Gonzales, 442 F.3d 395 (6th Cir.2006), see infra note 4, are the only published federal court decisions that we have found in which a frivolousness ruling has been declared invalid. Similarly rare are published decisions in which a federal court has upheld a finding of frivolousness. Indeed, we have located only four such decisions. From these latter eases, one can arguably discern another guideline. For the circumstances surrounding all four eases of \\\"frivolousness\\\" suggest that concrete and conclusive evidence of fabrication is needed to warrant a ruling that renders an alien permanently ineligible for immigration benefits in the United States.\\nFor example, in Efe v. Ashcroft, 293 F.3d 899 (5th Cir.2002), the Fifth Circuit affirmed an IJ's finding that an applicant had knowingly made false statements. Id. at 908. The basis for the IJ's ruling was the existence of, inter alia, unrefuted den-ta1 records that contradicted the alien's statements about his age at the time he claimed to have entered the United States. See id. at 902 n. 1. Similarly, in Ignatova v. Gonzales, 430 F.3d 1209 (8th Cir.2005), the Eighth Circuit upheld a frivolousness finding where the IJ had concluded that the hospital record introduced by the alien was plainly fraudulent. The IJ had so found on the basis of a letter from the issuing hospital that disavowed the alien's submission: \\\"Ignatova's submission described treatment allegedly given to her by certain doctors and bore stamps and seals, but the record contains a letter from the hospital denying that those doctors were employed there, that the stamps and seals were authentic, or that Ignatova had been treated there.\\\" Id. at 1214.\\nAnd, in Selami v. Gonzales, 423 F.3d 621 (6th Cir.2005), the Sixth Circuit had no trouble affirming a frivolousness decision based on the IJ's finding that the alien had submitted a forged newspaper article. To strengthen his asylum petition, the applicant entered into evidence a March 30, 2001, article purportedly from an Albanian newspaper. Shortly thereafter, the IJ received an authentic copy of that very issue of the same paper from the Library of Congress, which had requested it directly from the National Library of Albania. The applicant's article clearly did not match the true copy. See id. at 624, 626.\\nFinally, in Barreto-Claro v. U.S. Att'y Gen., 275 F.3d 1334 (11th Cir.2001), the asylum seeker filed a second application admitting that he lied in his first application. The Barreto-Claro court emphasized that the applicant did not argue that his fraudulent statements were not material nor knowingly made, but instead sought to explain why he lied, i.e., as the court and BIA described it, \\\" 'why concededly material fabrications were knowingly made.' \\\" Id. at 1339.\\nIn each of these four cases, the frivolousness ruling against the applicant was connected to tangible evidence of fabrication that could not reasonably be disputed, i.e., dental records casting serious doubt on the asylum seeker's alleged age, an official hospital letter denying the authenticity of a document purportedly created by that hospital, an original newspaper that demonstrates beyond peradventure that an alien's proffered article is counterfeit, and a confession to a material fabrication. Looking at both those cases that have affirmed findings of frivolousness and those that have vacated them, it would not be unreasonable to conjecture that federal courts seem to require a heightened evi-dentiary standard in evaluating frivolousness. Without a well-developed body of case law, however, it is premature to say how much beyond the \\\"garden-variety\\\" inconsistencies that are the routine basis of adverse credibility decisions is required to support a finding of frivolousness. We simply have too few data points from which to extrapolate, with any confidence, a uniform federal standard.\\n\\nHow the case before us would fare under these emergent standards is also uncertain. The IJ's conclusion that Liu's application was frivolous was based on (a) the IJ's apparent belief that petitioner's claim was \\\"marred with inconsistencies and implausibilities and [was] suggestive of fraudulent documentation,\\\" and (b) the significant discrepancy between petitioner's original application (in which he claimed that his wife gave birth to their daughter) and his subsequent story that his wife was forced to abort her second pregnancy and that their daughter was actually adopted. Under Scheerer and Muhanna, the first of these reasons, which attempts to parlay an ordinary adverse credibility decision into a finding of frivolousness automatically, would seem to be invalid. The IJ's reliance on credibility concerns is especially doubtful in this case since (a) the IJ's adverse credibility ruling is not free of error, see supra, and (b) the IJ herself indicates that the evidence is only \\\"suggestive\\\" of fraudulent documents.\\nHad the IJ relied exclusively on her general credibility ruling to conclude that Liu's application was frivolous, we might have decided that we could summarily reverse the frivolousness decision ourselves (as has occurred in more than one case in our circuit). But the IJ's second ground is potentially more valid. Petitioner acknowledged that his original 1-589 statement contained incorrect information about the natural birth of the daughter he now maintains was adopted. For the purposes of analyzing the IJ's frivolousness determination, Liu's admission raises a number of difficult questions. Is Liu's concession that his first statement included erroneous information tantamount to a confession that he \\\"deliberately fabricated\\\" either his first (or his second) application? Cfi Bamto-Claro, 275 F.3d at 1337-39. Are we permitted to find that an application is frivolous when we know only that one of two written statements was incorrect, but cannot be certain which one? Even if we accept the IJ's credibility ruling (notwithstanding its errors), could we conclude with sufficient confidence that Liu knowingly invented a story about an adopted daughter? (There is, after all, some chance that Liu simply chose, because he was unaware of the full range of asylum claims he could assert, not to include in his application what he considered to be extraneous information.) Moreover, does a misstatement in a first submission, which did not further the specific asylum claim pressed in a second application, qualify, for the purposes of frivolousness, as a deliberate fabrication of a material element?\\nThese are not easy questions. As a result, we cannot comfortably ascertain the proper outcome in this case in the absence of a set of standards for adjudicating frivolousness appeals. As noted earlier, to date, neither the BIA nor this court have squarely addressed the issue of when and under what circumstances a finding of frivolousness is proper. Hence, were we to generate standards ourselves, we would be forced to start essentially from scratch. Federal courts, of course, do sometimes answer questions of first impression without administrative guidance. But they need not do so in all cases. And, for the reasons we give below, we believe this is an appropriate occasion to vacate and remand the IJ's frivolousness determination to the BIA so that it may, in the first instance, set down clear and explicit standards by which frivolousness decisions may be judged. In doing so, we encourage the BIA to consider not only the relevant statutes and regulations, but also the principles articulated by our sister circuits in the decisions surveyed above.\\n\\nBecause we conclude, as a matter of discretion, that it is prudent and useful for us to remand the issue of frivolousness, we need not address the more complicated question of when remands to the BIA are required by elementary principles of administrative law. Cf. Gonzales v. Thomas, - U.S. -, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (per curiam). There are six reasons why this case is, in our view, an especially attractive candidate for remand.\\nInsufficient agency attention \\u2014 Our review of the record suggests that neither the IJ, who made her frivolousness determination in the course of a few short paragraphs, nor the BIA, which summarily affirmed the IJ's decision, considered seriously the difficult issues and questions of first impression that this appeal presents. Under the circumstances, it is clearly desirable to have the BIA clarify this neglected, but important, issue of asylum law.\\nNational uniformity \\u2014 In the frivolousness context, uniformity is not just uniquely possible, but is also of unusual importance. Since none of the circuit courts have, as yet, produced a substantial body of law with respect to frivolousness, there is a real opportunity for the BIA to take the lead in the establishment of uniform national standards for deciding when a finding of frivolousness is appropriate. It is, of course, desirable for all asylum petitions to be handled in a consistent manner by the various circuits. But, the grave consequences of a frivolousness finding amplify the importance of ensuring that an applicant's eligibility for asylum benefits in this country does not depend on the circuit that, by fortune or fate, reviewed the case.\\nStatutory ambiguity \\u2014 There is language in the relevant statute, 8 U.S.C. \\u00a7 1158(d), and in the corresponding regulation, 8 C.F.R. \\u00a7 208.20, that arguably requires interpretation and clarification. Unlike appeals that raise issues that either do not implicate statutory language, or do not involve possibly ambiguous language, here there is every reason for the BIA to have the first opportunity to construe the laws that Congress has charged it to administer. See generally Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).\\nDearth of circuit law \\u2014 Our circuit has literally no case law on this subject. That makes remand a desirable option for at least two reasons. First, we may send the case to the BIA without concern that our decision to do so (a) would countermand the approach taken in binding circuit precedent, or (b) would create needless conflict between circuit holdings and agency law. Cf. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (holding that a court's earlier construction of a statute trumps an agency's more recent construction only if the original interpretation by the federal court was thought to be premised on the unambiguous terms of the statute). Second, we do not even have related case law to which we can turn, or from which we can extract some basic principles to guide us in determining what approach our circuit should take to frivolousness.\\nHigh volume \\u2014 This is not an idiosyncratic case where the dearth of prior law is a natural product of the infrequency with which the issue presents itself. On the contrary, as we are starting to see, virtually every asylum case that contains an adverse credibility ruling has the potential of giving rise to a finding of frivolousness. Given the high volume of cases that may include this issue, and because the BIA, in performing its appellate function, will review these decisions long before they are brought before us, we believe there is great value in having the BIA develop standards as it addresses these cases, which, in turn, will inform how we appraise findings of frivolousness when they reach us in the future.\\nImportance of the issue \\u2014 A finding of frivolousness is a potential \\\"death sentence\\\" for an alien's immigration prospects. See Muhanna, 399 F.3d at 588. But cf. supra note 2. Where so much can be lost \\u2014 and especially in an area of law in which, even in the ordinary case, a lot is at stake, see Ming Shi Xue, 439 F.3d at 114 (\\\"Whether the danger is of religious discrimination, extrajudicial punishment, forced abortion or involuntary sterilization, physical torture or banishment, we must always remember the toll that .is paid if and when we err.\\\") \\u2014 it is imperative that claims be adjudicated in a fair and reasoned way. Standardless and ad hoc deci-sionmaking by federal courts or by individual immigration judges is especially to be avoided with respect to the issue before us today. And the place to start in determining standards is in the agency empowered by Congress to administer the law, the BIA.\\n*\\nFor the foregoing reasons, we DENY the petition for review with respect to the IJ's adverse credibility ruling, we GRANT the petition for review with respect to the finding of frivolousness, and we VACATE that finding and REMAND the case to the BIA for further proceedings consistent with this opinion.\\n. Significant to our decision that remand, with respect to the IJ's adverse credibility determination, is unnecessary in this case is the fact that the ground on which the IJ explicitly placed the greatest weight, i.e., what she described as the \\\"most glaring discrepancy\\\" in petitioner's claim, is entirely free of error.\\nIn this regard, we note our recent decision in Lin Li Hua v. U.S. Dep't of Justice, 453 F.3d 99, 2006 WL 1755289 (2d Cir. June 28, 2006). As in the instant case, Lin Li Hua involved a decision by an IJ who had expressly identified the credibility concern most significant to him, and, there too, the BIA summarily affirmed the IJ's decision. Lin Li Hua, at *9. In Lin Li Hua, however, the credibility concern described by the IJ to be \\\"most critical\\\" was found to be flawed. Under those circumstances, we held that \\\"[t]he more central an errant finding was to the IJ's adverse credibility determination . the less confident we can be that remand would be futile.\\\" Id.\\nThus, in deciding that a remand would not be futile in Lin Li Hua, we stressed that the ground we found to be erroneous was precisely the ground on which the IJ, according to his opinion, had relied most heavily in finding that the applicant was not credible. Conversely, in this case, because the ground on which the IJ (and, by inference, the BIA) relied most substantially is error free, we are able to conclude that \\\"the same decision is inevitable on remand.\\\" Lin Li Hua, at 6.\\n. The alien may still be eligible for withholding of removal or similar temporary protections where a deportation would result in dire persecutions. See 8 C.F.R. \\u00a7 208.20 (\\\"For purposes of this section, a finding that an alien filed a frivolous asylum application shall not preclude the alien from seeking a withholding of removal.\\\"). Thus, our reference to \\\"all benefits under the immigration law of this country\\\" should not be construed to include withholding of removal or other similar temporary protections, or to bar an alien, who is determined to have filed a frivolous application, from seeking any relief that is not otherwise barred by 8 U.S.C. \\u00a7 1158(d)(6) or any other applicable law.\\n. The Farah court's holding also suggests that, when a finding of frivolousness is possible, a petitioner is entitled to an opportunity to address perceived problems in his application that goes beyond the usual opportunity to be heard that an alien is typically accorded during immigration proceedings. Requiring a more comprehensive opportunity to be heard in the' frivolousness context makes sense in light of what is at stake in a frivolousness decision, for both the alien and the government. See In re S-M-J, 21 I. & N. Dec. 722, 727 (BIA 1997) (\\\"[IJmmigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.\\\"). Giving aliens a meaningful opportunity to address an IJ's concerns is part of guarantying due process, and it is well-settled that the requirements of due process \\\"are flexible and dependent on the circumstances of the particular situation examined.\\\" Augustin v. Sava, 735 F.2d 32, 37 (2d Cir.1984) (citing Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Cl. 864, 74 L.Ed.2d 675 (1983)). Thus, what qualifies as a \\\"sufficient opportunity\\\" for the purposes of satisfying the agency regulations governing frivolousness findings would, we would think, have to be more ample than what suffices in the ordinary course of asylum proceedings. Cf. Ming Shi Xue, 439 F.3d at 114-15 (holding, with respect to standard credibility rulings, that \\\"when an inconsistency is not self-evident, an IJ may not rely on it to support a credibility determination without first bringing the perceived discrepancy to the alien's attention, thereby giving the alien an opportunity to address and perhaps reconcile the seeming inconsistency\\\") (emphasis added). But, these are precisely the questions that we expect the BIA to further explore on remand in expounding standards, in the first instance, for how frivolousness cases should be handled.\\n. See also Alexandrov v. Gonzales, 442 F.3d 395, 407 (6th Cir.2006) (concluding that an immigration court's reliance on hearsay evidence, e.g., State Department reports, to support a finding of frivolousness violated the asylum seeker's due process rights).\\n. At least two findings of frivolousness have been vacated or reversed by panels of this Court through unpublished summary orders in the past few months. See Ji Fang Tian v. Gonzales, 2006 WL 1070915 (2d Cir. April 21, 2006) (reversing frivolousness finding); Min Xin Yang v. BCIS, 2006 WL 1049070 (2d Cir. April 19, 2006) (vacating frivolousness finding).\"}"
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+"{\"id\": \"3290071\", \"name\": \"John PARK et al., Plaintiffs, v. HYATT CORPORATION, Defendant\", \"name_abbreviation\": \"Park v. Hyatt Corp.\", \"decision_date\": \"2006-06-30\", \"docket_number\": \"Civil Action No. 06-179 (RWR)\", \"first_page\": \"60\", \"last_page\": \"67\", \"citations\": \"436 F. Supp. 2d 60\", \"volume\": \"436\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States Court of Appeals for the District of Columbia\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:55:13.148366+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John PARK et al., Plaintiffs, v. HYATT CORPORATION, Defendant.\", \"head_matter\": \"John PARK et al., Plaintiffs, v. HYATT CORPORATION, Defendant.\\nCivil Action No. 06-179 (RWR).\\nUnited States District Court, District of Columbia.\\nJune 30, 2006.\\nHarold Edmund Brazil, Washington, DC, for Plaintiffs.\\nChristopher E. Hassell, Bonner Kiernan Trebach & Crociata, Washington, DC, for Defendant.\", \"word_count\": \"2833\", \"char_count\": \"18008\", \"text\": \"MEMORANDUM OPINION AND ORDER\\nROBERTS, District Judge.\\nPlaintiffs John Park, Philip Park, and After Six Entertainment, Inc. sued defendant Hyatt Corporation (\\\"Hyatt\\\") asserting contract and tort claims, violations of the D.C. Human Rights Act (\\\"DCHRA\\\") and federal civil rights statutes, and claims of \\\"discrimination\\\" and punitive damages. Hyatt moves to dismiss all but plaintiffs' breach of contract claim, and moves for leave to file counterclaims against plaintiffs. Plaintiffs have alleged sufficient facts to state contract and tort claims and violations of the DCHRA and federal civil rights statutes, and Hyatt's motion to dismiss will be denied with respect to those claims. The \\\"discrimination\\\" claim is du-plicative and will be dismissed, and the punitive damages claim will be treated as part of a prayer for relief and not as a cause of action. Because Hyatt seeks to add counterclaims arising from the same transaction or occurrence and plaintiffs have demonstrated no prejudice to them, Hyatt's motion for leave to file counterclaims will be granted.\\nBACKGROUND\\nPlaintiffs allege that they entered into a signed agreement with the Hyatt Regency Washington on Capitol Hill in December 2004, authorizing plaintiffs to use the Hyatt's facilities for a New Year's Eve party that year in exchange for a fee. (Comply 5.) Plaintiffs state that they planned to charge attendees a fee to attend the party and also charge them for food and alcoholic beverages, and that Hyatt knew of these plans. (Id. \\u00b6 6.) The festivities did not go according to plan. According to plaintiffs, Hyatt intentionally sabotaged plaintiffs' event by failing to provide the size room for the buffet dinner that previously had been represented to plaintiffs, failing to provide a sufficient amount of food for the buffet dinner, failing to place wine on the dinner tables at the buffet dinner, ending the buffet an hour early, locking plaintiffs and party attendees out of their hotel rooms, failing to provide adequate security, and being rude and condescending to plaintiffs. (Id. \\u00b6 10-13, 15, 17.) In addition, plaintiffs contend that Hyatt \\\"unilaterally raised the price of premium drinks at plaintiffs' event but charged less for drinks sold by the Hyatt[,]\\\" creating \\\"an incentive for the attendees at plaintiffs' event to buy drinks from the Hyatt rather tha[n] buy them at plaintiffs' event.\\\" (Id. \\u00b6 8.) Plaintiffs John Park and Philip Park are Korean Americans, and the party was attended overwhelmingly by persons of Asian descent. (See id. \\u00b6 14, 16; Pis. Opp'n to Hyatt's Mot. to Dismiss at 1.)\\nPlaintiffs filed their complaint in D.C. Superior Court in December 2005, alleging breach of contract, tortious interference with contract, negligent infliction of emotional distress, intentional infliction of emotional distress, violations of the DCHRA and federal civil rights statutes, discrimination, and punitive damages. Plaintiffs allege pecuniary loss, loss of reputation, loss of good will, severe emotional distress and other losses. (Compl.1ffl22, 28, 34.) Hyatt answered the complaint without stating any compulsory counterclaims, and removed the case to this court in February 2006. Hyatt now moves to dismiss all but plaintiffs' breach of contract claim and requests leave to file counterclaims. Plaintiffs oppose both motions.\\nDISCUSSION\\n\\\"A Rule 12(b)(6) motion is intended to test the legal sufficiency of the complaint. But the complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues. In light of these liberal pleading requirements, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.\\\" Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir.2003) (citations and internal quotation marks omitted).\\nIn considering a Rule 12(b)(6) motion, a court must accept all the allegations in a plaintiffs complaint as true and construe them in the light most favorable to the plaintiff. Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1027 (D.C.Cir.1997). \\\"Dismissal under Rule 12(b)(6) is proper when, taking the material allegations of the complaint as admitted, and construing them in plaintiff['s] favor, the court finds that the plaintiff[] ha[s] failed to allege all the material elements of [his] cause of action.\\\" Weyrich v. The New Republic, Inc., 235 F.3d 617, 623 (D.C.Cir.2001) (internal quotation marks and citations omitted) (quoting Taylor v. FDIC, 132 F.3d 753, 761 (D.C.Cir.1997)).\\nI. TORTIOUS INTERFERENCE WITH CONTRACT\\nIn the District of Columbia, in order to state a claim for tortious interference with contract, a plaintiff must allege (1) the existence of a contract between the plaintiff and a third party, (2) knowledge of the contract by the defendant, (3) intentional procurement by the defendant of a breach of contract; and (4) damages resulting from the breach. See Casco Marina Dev., L.L.C. v. D.C. Redevelopment Land Agency, 834 A.2d 77, 83 (D.C.2003); see also Restatement (Second) of Torts \\u00a7 766-66C (1979).\\nPlaintiffs sufficiently, if inartfully, state a claim for tortious interference with contract. Plaintiffs' allegations can be read fairly to assert that a contract existed between plaintiffs and the attendees, whereby attendees paid a fee and agreed to purchase premium drinks in exchange for being able to attend the plaintiffs' New Year's Eve party with various services to be provided by plaintiffs. {See Compl. \\u00b6 6, 24-25.) Plaintiffs also assert knowledge of the contract by Hyatt, intentional procurement of a breach by Hyatt, and damages from the procured breach in the form of lost profits and loss of reputation among other things. {See Compl. \\u00b6 8-9, 24-28.)\\nNonetheless, Hyatt argues that plaintiffs' claim for tortious interference with contract fails to state a claim because it does not allege damages resulting from the breach allegedly induced by Hyatt. Moreover, Hyatt contends that plaintiffs' claim fails because the complaint alleges that Hyatt procured a breach by the plaintiffs and not a third party. In other words, \\\"[plaintiffs appear to allege that they were damaged by their own breach of contract, which was allegedly, procured by the Defendant. This is insufficient to state a claim for tortuous [sic] interference with contract as a matter of law.\\\" (Hyatt's Mem. of P. & A. in Supp. of Mot. to Dismiss (\\\"Hyatt's Mot. to Dismiss\\\") at 3.)\\nHyatt's arguments are unpersuasive. First, plaintiffs do allege lost profits resulting from the attendees' alleged breach of contract in purchasing drinks directly from the hotel and not plaintiffs. Moreover, plaintiffs allege loss of reputation from plaintiffs' own inability to perform on its contract with attendees due to Hyatt's tortious interference. Second, a plaintiff may recover for tortious interference with contract if the defendant forces the plaintiff to breach a contract with a third party. See Restatement (Second) of Torts \\u00a7 766A (1979) (\\\"One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person, by preventing the other from performing the contract or causing his performance to be more expensive or burdensome, is subject to liability to the other for the pecuniary loss resulting to him.\\\"); see also DeKine v. District of Columbia, 422 A.2d 981, 988 (D.C.1980) (recognizing the Restatement (Second) of Torts \\u00a7 766-766C).\\nII. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS\\nTo state a claim for intentional infliction of emotional distress, a plaintiff must allege \\\"(1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress.\\\" Paul v. Howard Univ., 754 A.2d 297, 307 (D.C.2000) (internal quotation marks omitted). Hyatt argues that \\\"[plaintiffs have failed to allege any extreme or outrageous conduct or sufficiently severe emotional distress.\\\" (Hyatt's Mot. to Dismiss at 5.)\\nHyatt's arguments cannot prevail. Racial discrimination can amount to extreme or outrageous conduct. See Howard Univ. v. Best, 484 A.2d 958, 986 (D.C. 1984) (holding that racial or sexual harassment and other \\\"[a]ctions which violate public policy may constitute outrageous conduct sufficient to state a cause of action for infliction of emotional distress\\\"). However, the D.C. Court of Appeals has explained that Best applied only \\\"to cases in which the plaintiff can show 'a pattern of harassment! ]' \\\" and not to cases where a plaintiff alleges \\\"a few isolated incidents.\\\" Paul, 754 A.2d at 308. Here, plaintiffs allege repeated acts of discrimination and racially motivated sabotage by Hyatt \\u2014 intentionally diminishing plaintiffs' drink sales by undercutting the prices of drinks sold by plaintiffs to their attendees, failing to provide adequate food, cutting short the time of the planned buffet, and locking the plaintiffs and attendees of plaintiffs' party out of their rooms \\u2014 over the entire period the contractual obligations were executed. These alleged acts were neither few nor isolated, and if proven, could amount to extreme and outrageous conduct by Hyatt. In addition, plaintiffs allege that they suffered \\\"severe emotional distress including embarrassment and ridicule.\\\" (ComplA 34.) The burden will be on plaintiffs to prove actual severe emotional distress, but they have pled it sufficiently to survive a motion to dismiss.\\nIII. D.C. HUMAN RIGHTS ACT AND FEDERAL CIVIL RIGHTS STATUTES\\nIt is unlawful to discriminate against individuals on the basis of their race in places of public accommodation. See 42 U.S.C. \\u00a7 2000a (\\\"All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.\\\"); D.C.Code \\u00a7 2-1402.31(a)(l) (making it unlawful to \\\"deny, directly or indirectly, any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodations\\\" on the basis of that person's race or national origin). In addition, federal law declares that \\\"[all] persons . shall have the same right . to make and enforce contracts . and to the full and equal benefit of all laws and proceedings . as is enjoyed by white citizens.\\\" 42 U.S.C. \\u00a7 1981(a). A plaintiff may state a claim under \\u00a7 1981 if the plaintiff can show that (1) he is a member of a protected racial group; (2) the defendant had an intent to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in the statute. See Mitchell v. DCX, Inc., 274 F.Supp.2d 33, 44-45 (D.D.C.2003). Hyatt argues that plaintiffs have failed to state a claim under District of Columbia and federal law because \\\"[p]laintiffs fail to allege that other hotel guests that were not members of a protected class were treated differently\\\" and because \\\"[plaintiffs have no standing to assert a claim for discrimination based upon the violation of the rights of their guests.\\\" (Hyatt's Mot. to Dismiss at 6.)\\nThese arguments are without merit. Hyatt's first argument amounts to a contention that plaintiffs must state a prima facie case of discrimination in their complaint in order to survive a motion to dismiss. However, a plaintiff is not required to plead a prima facie case of discrimination in the complaint, nor specifically to point to similarly situated individuals given preferential treatment in order to survive a motion to dismiss. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C.Cir.2000). Plaintiffs have provided a short and plain statement of their claim, that Hyatt discriminated against plaintiffs in a place of public accommodation and impeded plaintiffs' ability to enforce their contract with Hyatt all because of plaintiffs' race (see Compl. \\u00b6 38-42), giving Hyatt fair notice of the claim and the grounds upon which it rests. That is all that plaintiffs must provide at this stage. See Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Hyatt's second argument fails because it mischaracterizes the allegations in the complaint. Plaintiffs allege that they, along with their guests, were unlawfully denied \\\"equal treatment and enjoyment of [Hyatt's] hotel facilities, including its banquet facilities and hotel rooms.\\\" (CompU 38.)\\nHyatt does not appear to argue that plaintiffs have not stated a claim for which relief can be granted under \\u00a7 1981. In any event, plaintiffs have alleged facts sufficient to survive a motion to dismiss on that claim.\\nIV. CLAIMS FOR DISCRIMINATION AND PUNITIVE DAMAGES\\nPlaintiffs allege additional claims for \\\"discrimination\\\" and punitive damages. (See Compl. \\u00b6 44-50.) Plaintiffs' discrimination claim is duplicative of plaintiffs' claims under the DCHRA and federal civil rights statutes, and will therefore be dismissed. See Johnson v. District of Columbia, Civil Action No. 04-936(RMC), 2005 WL 1903551, at *9 (D.D.C.2005) (dismissing duplicative claim). Though punitive damages are available to plaintiffs if they can show Hyatt's conduct \\\"was accompanied by 'fraud, ill will, recklessness, wantonness, willful disregard of the plaintiff[s'] rights, or other circumstances tending to aggravate the injury!,]'\\\" Dyer v. William S. Bergman & Assocs., Inc., 657 A.2d 1132, 1139 n. 10 (D.C.1995) (quoting Washington Medical Ctr. v. Holle, 573 A.2d 1269, 1284 (D.C.1990)), punitive damages are not an independent cause of action. The claim for punitive damages, then, will be treated instead as part of an ad damnum clause.\\nV. HYATT'S COUNTERCLAIMS\\nFederal Rule of Civil Procedure 13(a) requires that \\\"[a] pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim.\\\" When a pleader fails to set up a counterclaim through \\\"oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment.\\\" Fed.R.Civ.P. 13(f). \\\"[DJelay alone will not generally justify denying a motion to amend a pleading absent a showing of prejudice from the delay.\\\" King v. Cooke, 26 F.3d 720, 723 (7th Cir.1994).\\nHyatt moves for leave to file counterclaims against the plaintiffs for breach of contract and unjust enrichment, alleging that plaintiffs breached their contract with Hyatt by not paying for the full amount of goods and services expended and facilities provided by Hyatt and that plaintiffs were unjustly enriched by their breach. (See Hyatt's Mot. for Leave to File at 9-10.) Plaintiffs oppose the motion, arguing the counterclaims are untimely, prejudicial and filed in bad faith. (Pis.' Opp'n to Hyatt's Mot. for Leave to File at 2-3.)\\nPlaintiffs produce no facts to suggest that Hyatt's motion is filed in bad faith and offer no explanation as to why plaintiffs will be prejudiced by addition of the counterclaims, other than the bare assertion that they will be \\\"placed in the untenable position of prosecuting and defending themselves against this untimely counterclaim.\\\" (Id. at 3.) Notably, Hyatt filed its motion before discovery commenced and only two months after Hyatt removed the case to federal court and answered the complaint. Plaintiffs received ample notice of the counterclaims, and addition of the counterclaims will not unfairly prejudice plaintiffs.\\nCONCLUSION AND ORDER\\nBecause plaintiffs sufficiently allege claims of tortious interference with contract, intentional infliction of emotional distress, violations of the DCHRA and federal civil rights statutes, Hyatt's motion to dismiss with respect to these claims will be denied. Because plaintiffs' claim of \\\"discrimination\\\" is duplicative, Hyatt's motion to dismiss this claim will be granted. Plaintiffs' claim for punitive damages will be treated as part of a prayer for relief and not as an independent cause of action. Because no evidence indicates that Hyatt filed its motion for leave to file counterclaims in bad faith and because it will not unfairly prejudice plaintiffs, Hyatt's motion for leave to file counterclaims will be granted. Accordingly, it is hereby\\nORDERED that Hyatt's motion [3] to dismiss be, and hereby is, GRANTED in part and DENIED in part. It is granted as to plaintiffs' claim of \\\"discrimination,\\\" denied as to plaintiffs' claims of tortious interference with contract, intentional infliction of emotional distress and violations of the DCHRA and federal civil rights statutes, and denied as moot as to plaintiffs' claim of negligent infliction of emotional distress. Plaintiffs' claim for punitive damages shall be treated as part of a prayer for relief and not as a cause of action. It is further\\nORDERED that Hyatt's motion [14] for leave to file counterclaims be, and hereby is, GRANTED.\\n. Hyatt's motion is moot as to plaintiffs' negligent infliction of emotional distress claim since plaintiffs withdrew the claim in their opposition. (See Pis.' Opp'n to Hyatt's Mot. to Dismiss at 5.)\"}"
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+"{\"id\": \"3385119\", \"name\": \"J.F. ALLEN COMPANY AND WILEY W. JACKSON COMPANY, A JOINT VENTURE, Plaintiff, v. The UNITED STATES, Defendant\", \"name_abbreviation\": \"J.F. Allen Co. & Wiley W. Jackson Co. v. United States\", \"decision_date\": \"1992-02-19\", \"docket_number\": \"No. 578-87C\", \"first_page\": \"312\", \"last_page\": \"326\", \"citations\": \"25 Cl. Ct. 312\", \"volume\": \"25\", \"reporter\": \"United States Claims Court Reporter\", \"court\": \"United States Court of Claims\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:05:58.751974+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J.F. ALLEN COMPANY AND WILEY W. JACKSON COMPANY, A JOINT VENTURE, Plaintiff, v. The UNITED STATES, Defendant.\", \"head_matter\": \"J.F. ALLEN COMPANY AND WILEY W. JACKSON COMPANY, A JOINT VENTURE, Plaintiff, v. The UNITED STATES, Defendant.\\nNo. 578-87C.\\nUnited States Claims Court.\\nFeb. 19, 1992.\\nNicholas A. Pasciullo, Pittsburgh, Pa., attorney of record, for plaintiff.\\nGeorge M. Beasley, III, Commercial Litigation Branch, Civil Div., Dept, of Justice, Washington, D.C., with whom was the Asst. Atty. Gen., and Director David M. Cohen, attorneys of record, for defendant.\", \"word_count\": \"8492\", \"char_count\": \"52988\", \"text\": \"OPINION\\nHORN, Judge.\\nBACKGROUND\\nThe plaintiff, J.F. Allen Company and Wiley W. Jackson Company, a joint venture, filed this action to recover from the United States alleged damages arising out of the joint venture's construction contract with the United States Army Corps of Engineers (Corps). The jurisdiction of this court is uncontested under 28 U.S.C. \\u00a7 1491 (1988), and the Contract Disputes Act of 1978, 41 U.S.C. \\u00a7 609 (1988). The issues described in this Opinion originally were presented to the court on the plaintiff's motion for partial summary judgement on what the parties have denominated the \\\"section-skipping requirement,\\\" the defendants's motion for summary judgement on the whole case (the section-skipping requirement and the damages on the second issue presented, denominated the \\\"low grout take\\\" issue), and the defendant's alternative motion in limine to preclude the plaintiff from using the \\\"total cost\\\" method to calculate damages related to the low grout take issue. The plaintiff claims that the imposition of the section-skipping requirement, which is more fully defined below, constituted a constructive change or breach of contract. The defendant has conceded liability on the low grout take issue, but disputes the damages to which plaintiff might be entitled.\\nThe case arises out of a contract executed between the Corps and the plaintiff for the construction of the Stonewall Jackson Lake Dam, West Fork River, Lewis County, West Virginia. Performance of the contract required the plaintiff to complete foundation drilling and grouting at the dam. The present dispute stems from the drilling and grouting operations performed by the plaintiff's subcontractor, Pennsylvania Drilling Company, Inc. (Penn Drilling).\\nIn its complaint, the plaintiff alleges that: (1) contrary to paragraphs 5.1 and 5.1.2 of Section 20 of the plaintiff's contract with the Corps, authorized representatives of the Corps and the contracting officer issued orders prohibiting simultaneous drilling and grouting in adjacent one-hundred foot sections, which orders constituted a constructive change or, alternatively, a breach of contract, entitling the plaintiff to recover for the increased costs and lost profits associated with this alleged change in the drilling sequence; and (2) because of the low grout take, which occurred in performance of the contract, the plaintiff is entitled to an equitable adjustment, pursuant to the Differing Site Conditions and Variations in Quantity clauses in the contract.\\nAfter the plaintiff's motion for partial summary judgment, the defendant's motion for summary judgment and the defendant's alternative motion in limine had been briefed and argued, the plaintiff filed a motion for enlargement of time to file a motion for summary judgment on the issue of the low grout take. The plaintiff claims that it was prompted to file this motion by the discussion that had ensued at the oral argument. The defendant filed its opposition to plaintiff's motion for enlargement of time to file a motion for summary judgment, arguing that the plaintiff should not be allowed to raise new issues so far along in the proceedings, especially after oral argument had been held and post-argument briefs had been filed by both parties.\\nThe plaintiff, however, was allowed to file a supplemental brief in opposition to defendant's motion for summary judgment, which essentially is a restyled version of the arguments the plaintiff would have made in a motion for summary judgment. In its supplemental brief, the plaintiff claims that as a matter of law, the contracting officer had not correctly computed the amount of damages the plaintiff was entitled to as result of the differing site conditions which resulted in the low grout take.\\nOn November 28, 1989, the defendant filed its response to plaintiff's supplemental brief in which it stated that the plaintiff had \\\"... finally raised a genuine issue of material fact as to whether it may be able to establish allowable costs in addition to those already paid.\\\" The defendant, there fore, requested that its motion for summary judgment on the issue of low grout take be withdrawn, without prejudice. The court, hereby, grants the defendant's request to withdraw its motion for summary judgment on the low grout take/differing site conditions issue. Accordingly, the issues remaining for the court's consideration are those involving the change encountered by the plaintiff in the drilling and grouting sequence (the section-skipping requirement), on which both parties have requested summary judgment, and the defendant's request for a ruling at this time to prohibit the plaintiff from using the total cost method to calculate damages.\\nAfter careful consideration of the briefs filed by the parties, the oral argument held on the cross-motions for summary judgment and the motion in limine, and for the reasons stated below: (1) the plaintiff's motion for partial summary judgement on the section-skipping requirement or alternative breach of contract claim is DENIED; (2) the defendant's motion for summary judgment on the section-skipping requirement is GRANTED; and (3) the defendant's alternative motion in limine is DENIED.\\nFACTS\\nBased on the documentary evidence submitted by the parties, the facts of the case appear to be as follows. The plaintiff, J.F. Allen Company and Wiley W. Jackson Company, a joint venture, entered into a contract (No. DACW59-83-C-0053) with the United States Army Corps of Engineers (Corps) for the construction of the Stonewall Jackson Lake Dam, West Fork River, Lewis County, West Virginia. The contract executed by the parties contains the basic General Provisions found in construction contracts issued by the Corps (May 1983 Edition), e.g., General Provision 3, Changes, General Provision 4, Differing Site Conditions. The contract also contains the June, 1982 edition of the Variations in Estimated Quantities Subdivided Items.\\nA portion of the plaintiff's contract calls for the construction of a grout curtain beneath the dam. The contract specifies that this grout curtain is to be constructed in accordance with Section 20 of the technical provisions of the contract entitled \\\"Foundation Drilling and Grouting and Drainage Holes.\\\" The plaintiff subcontracted with Crown Pressure Grouting Company to perform the drilling and grouting work required by the contract. Subsequently, it appears that the plaintiff entered into a replacement subcontract with Pennsylvania Drilling Company, Inc. (Penn Drilling). The present dispute stems from the drilling and grouting operations performed by Penn Drilling during the construction of the grout curtain.\\nPenn Drilling began drilling and grouting on January 6, 1986, and completed operations on June 4, 1986. The drilling and grouting work performed by Penn Drilling took place in a gallery, or tunnel, inside the dam. Pursuant to paragraph 5.1 of the technical provisions of the contract, drilling and grouting was to be completed \\\"by zones, using the split spacing, stage grouting method as described herein.\\\" Furthermore, the technical provisions specify that the dam gallery was to be divided into sections no longer than one-hundred feet in length. Specifically, paragraph 5.1.2 of Section 20 of the contract specifications provides, \\\"[a] section is a reach along the grout curtain, not more than 100 feet in length.\\\" Paragraph 5.1.2 also states that, \\\"[gjrouting operations will not be permitted in a section at the same time drilling in that section is in progress.\\\"\\nUpon mobilization at the project site, Mr. Jim Adams, Job Superintendent for Penn Drilling, contacted Mr. Warren David Nu-gen, Project Geologist for the contract. In a signed declaration submitted to the court, Mr. Nugen described himself as the project geologist, assigned to the Stonewall Jackson Lake Project Office, responsible for supervising placement of the grout curtain in the foundation of the dam. Furthermore, Mr. Nugen described himself as being responsible for insuring that the grout cutoff was effective and met the design intent of the contract. The parties have stipulated to the fact that Mr. Nu-gen's supervisory duties included directing the drilling and grouting program of the contract. Moreover, although Mr. Nugen directed the sequence of the hole drilling, it was not his job and he did not direct the actual performance of the drilling operation.\\nPrior to the beginning of drilling and grouting operations at the dam, Mr. Nugen developed a drilling and grouting plan to be implemented in order to insure that the grout cutoff was effective and met the design intent of the contract. The parties have stipulated that Mr. Nugen was the Corps' authorized representative, acting within the scope of his authority when he prepared the drilling and grouting plan. The parties have also stipulated that the plan prepared by Mr. Nugen did not have to be authorized or affirmed by anyone else. According to Mr. Nugen, he had no authority to make changes to the contract or order work performed which was outside the scope of the contract. The Corps directed Penn Drilling to perform the drilling and grouting work according to the contract specifications, as implemented by the drilling and grouting plan Mr. Nugen prepared and authorized.\\nThe drilling and grouting plan prepared by Mr. Nugen divided the dam into eight sections as follows:\\n/4-R/ /3-R/ /2-R/ /1-R/ /1-L/ /2-L/ /3-L/ /4-L/\\nUnder the plan, the contractor was required to skip at least one section between drilling and grouting operations, i.e., when the drilling contractor completed first stage holes in section /1-R/, the plan required the contractor to move one-hundred feet away, skipping section /2-R/, to begin first stage holes in section /3-R/. Grouting would then commence in section /1-R/. The plan did not provide for drilling and grouting simultaneously in adjacent sections.\\nEarly during the drilling and grouting operations, the contractor orally notified the Corps Resident Engineer, Mr. William Woodburn, that the set up and moving time involved in the section-skipping requirement of the plan was causing difficulties with the work. The basic equipment for drilling grout holes consists of drills, drill bits, drill steel, tools, water source, and a power supply. Each time Penn Drilling's workers completed a section, the section-skipping requirement imposed by the plan required the workers to disassemble the drill into its three components, and move these components one at a time, as well as tools, boxes of drill steel, and drill bits, across the length of the section adjacent to where they had just completed work, to the next section. The plaintiff alleges that each time Penn Drilling was required to move its equipment a section or more, this move resulted in the loss of a half to one full work shift and interfered significantly with grouting operations. The plaintiff asserts that there would not have been significant down-time had Penn Drilling been permitted to drill the holes sequentially from one end of the dam to another.\\nThe plaintiff asserts that under a \\\"fair and reasonable reading of the specifications,\\\" Penn Drilling should have been allowed to drill each hole in sequence, followed immediately at a distance of one-hundred feet by grouting operations. The section-skipping requirement imposed by Mr. Nugen's drilling and grouting plan made it impossible for Penn Drilling to drill and grout sequentially, as the plaintiff alleges Penn Drilling had planned to do when it submitted its bid. Therefore, because the section-skipping requirement of Mr. Nugen's drilling and grouting plan forced Penn Drilling to jump back and forth between different sections of the dam in order to complete the work, the plaintiff claims that the section-skipping requirement constituted a change in the contract specifications and that the Changes clause of the contract permits both the contractor, the joint venture of J.F. Allen Company and Wiley W. Jackson Company, and its subcontractor, Pennsylvania Drilling Company, Inc., to receive an equitable adjustment for the resulting additional costs.\\nAfter Mr. Nugen instructed Penn Drilling to follow the drilling and grouting plan, no representative of Penn Drilling advised Mr. Nugen that the company intended to take the matter of the drilling and grouting plan to the contracting officer, and Mr. Nugen was not made aware of any complaints by the plaintiff or Penn Drilling with respect to his plan. Furthermore, Col. Robert B. Wilson, the contracting officer at the time of contract performance, stated in his signed declaration:\\nNo individual, representative, or employee of J.F. Allen Company and Wiley N. Jackson Company, a Joint Venture, or from Pennsylvania Drilling Company, Inc., ever questioned me or asked me if it were necessary to follow Warren David Nugen's instructions relative to any drilling and grouting sequence. Further, I received no oral or written complaints from such representatives that Plaintiff or its subcontractor was being required to follow a drilling and grouting sequence not required by the terms of the contract.\\nBy letters dated November 25, 1986, and December 12, 1986, and certifications dated January 19, 1987, and March 19, 1987, the plaintiff submitted a claim on behalf of Penn Drilling in the amount of $469,868.98 to Col. Robert D. Brown III, the contracting officer who replaced Col. Wilson on the Stonewall Jackson project. In the claim submitted to the contracting officer, the plaintiff asserted (1) that the low grout take associated with the performance of the contract entitled the plaintiff and its subcontractor to an equitable adjustment pursuant to the contract's Differing Site Conditions clause and the Variation in Estimated Quantity clause; and (2) that the Corps' refusal to let Penn Drilling drill and grout simultaneously in adjacent one-hundred foot sections was a constructive change and/or breach of contract because Corps' representatives required work conditions contrary to those identified in the contract specifications.\\nOn May 15, 1987, the contracting officer reviewed the plaintiffs' claim and rendered a decision on the merits of the claim. The contracting officer recognized that a partial equitable adjustment pursuant to the Differing Site Conditions Clause was due the plaintiff as a result of the low grout take, which had an underrun of approximately 82 percent. The contracting officer determined that the plaintiff was entitled to an equitable adjustment of $38,450.30. The remaining issues were considered on their merits and denied.\\nIn reviewing the section-skipping portion of the plaintiffs' claim, the contracting officer wrote that, \\\"[w]ith respect to the method of drilling that was followed, it is noted that the drilling and grouting specifications for this contract are for a well-defined stage grouting process.\\\" The contracting officer defined the plaintiff's section-skipping claim as being, \\\"based upon the Corps not permitting you to perform the job using the stop grouting procedure.\\\" Such procedures, the contracting officer wrote, \\\"are not a part of your contract specifications.\\\" According to the contracting officer, the drilling and grouting plan prepared by the Corps allowed the contractor the flexibility to perform the work in a manner that was permissible given the one-hundred foot and twenty-four hour grouting restrictions under paragraph 5.4.2 of Section 20. In denying the claim, the contracting officer wrote that the drilling and grouting plan prepared by the Corps, \\\"cannot be construed as a constructive change.\\\"\\nDISCUSSION\\nRule 56 of the Rules of the United States Claims Court (RUSCC) is patterned on Rule 56 of the Federal Rules of Civil Procedure (Fed.R.Civ.P.) and is similar in language. Both Rules provide that summary judgment \\\"shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\\\" RUSCC 56(c) and Fed.R.Civ.P. 56(c). RUSCC 56(c) provides that in order for a motion for summary judgment to be granted, the moving party bears the burden of showing that there is no genuine issue of material fact and is entitled to judgment as a matter of law. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1969); Rust Communications Group, Inc. v. United States, 20 Cl.Ct. 392, 394 (1990); Lima Surgical Assoc., Inc. Voluntary Employees' Beneficiary Assn. Plan Trust v. United States, 20 Cl.Ct. 674, 679 (1990), aff'd, 944 F.2d 885 (Fed.Cir.1991).\\nAs stated in Webster University v. United States, 20 Cl.Ct. 429 (1990): Id. at 432 (emphasis deleted). Disputes over facts which are not outcome determinative under the governing law will not preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Summary judgment will not be granted if \\\"the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.\\\" Id.; see also Uniq Computer Corp. v. United States, 20 Cl.Ct. 222, 228-29 (1990).\\nAn issue is genuine only if, on the entirety of the record, a reasonable jury could resolve a factual matter in favor of the non-movant, see, e.g., Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1562 (Fed.Cir.1987), while the materiality of a fact is determined by reference to applicable legal standards. Id., 833 F.2d at 1567.\\nMoreover, the facts presented must be viewed in the light most favorable to the nonmoving party. Adickes v. Kress & Co., 398 U.S. at 147, 90 S.Ct. at 1602. If the moving party has carried its initial burden of showing that there is no genuine issue of material fact, then the nonmoving party bears the burden to present \\\"specific facts showing that there is a genuine issue for trial.\\\" RUSCC 56(f); see also Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510 (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)); Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Uniq Computer, 20 Cl.Ct. at 228 (stating that the non-movant \\\"must proffer countervailing evidence sufficient to create a genuine issue of material fact\\\"); and Spirit Leveling Contractors v. United States, 19 Cl.Ct. 84, 89 (1989) (stating that the party opposing the motion must \\\"prove by sufficient evidence that a genuine issue of material fact positively remains\\\").\\nWhen making a summary judgment determination, the judge's function is not to weigh the evidence, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. at 2510; see, e.g., Cloutier v. United States, 19 Cl.Ct. 326, 328 (1990), aff'd, 937 F.2d 622 (Fed.Cir.1991). The judge must determine whether the evidence presents a sufficient disagreement to require submission to fact finding or whether it is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-52, 106 S.Ct. at 2511-12. When the record could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial, and the motion must be granted. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356. If, however, the nonmoving party produces sufficient evidence to raise a question as to the outcome of the case, then the motion for summary judgment should be denied. As indicated above, any doubt over factual issues must be resolved in favor of the party opposing summary judgment, to whom the benefit of all presumptions and inferences runs. Id.; see also Litton Indus. Prods., Inc. v. Solid State Sys. Corp., 755 F.2d 158, 163 (Fed.Cir.1985); and H.F. Allen Orchards v. United States, 749 F.2d 1571, 1574 (Fed.Cir.1984), cert. denied, 474 U.S. 818, 106 S.Ct. 64, 88 L.Ed.2d 52 (1985).\\nIn Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Supreme Court added an additional provision to the long standing summary judgment guidelines outlined above when it indicated that the initial burden on the party moving for summary judgment to produce evidence showing the absence of a genuine issue of material fact may be discharged, if the moving party can show, alternatively, that there is an absence of evidence to support the nonmoving party's case. Id. at 325, 106 S.Ct. at 2553; see also Lima Surgical Assoc., 20 Cl.Ct. at 679. If the moving party makes this showing, the burden is then on the nonmoving party to present evidence in support of its case and show that a genuine factual dispute exists by making a showing sufficient to establish the existence of an element of its case upon which it bears the burden of proof. Lima Surgical Assoc., 20 Cl.Ct. at 679. The logic behind this addition is simple, if under no scenario can the nonmoving party present the necessary evidence to support its case, then there should be no genuine need for the parties to undertake the time and expense of a trial, and the moving party should prevail without further proceeding. Under Rule 56, the motion for summary judgment may be made by the moving party and succeed, whether or not accompanied by affidavits and other documentary evidence in addition to the pleadings already on file. Generally, however, in order to prevail, the nonmoving party will need to go beyond the pleadings, by use of evidence such as affidavits, depositions, answers to interrogatories and other admissions, in order to show that a genuine issue for trial exists. Celotex v. Catrett, 477 U.S. at 324, 106 S.Ct. at 2553. The type of evidence provided by the party opposing summary judgment need not meet the standards for admissibility at trial. The nonmovant, however, must produce evidence beyond the mere pleadings to survive the summary judgment motion and proceed to trial. Id.\\nAfter careful review of the pleadings, and consideration of the oral arguments presented by both parties, the court finds that the issue of whether the plaintiff is entitled to an equitable adjustment as a result of the implementation of the section-skipping plan implemented by the Corps can be resolved on summary judgment. There exists no dispute as to any of the material facts surrounding the issue. The only dispute left to be settled is a legal one: whether, given the established facts, and under the applicable law, the plaintiff is entitled to an equitable adjustment for costs incurred as a result of implementation of the section-skipping requirement.\\nIn order to recover under the changes clause of a government contract, either for an express or constructive change, the government representative, by actions or deeds, must have required the contractor to perform work which was not a necessary part of the contract. Furthermore, that government representative must have had the requisite authority to make changes to the contract. See Shank-Artukovich v. United States, 13 Cl.Ct. 346, 355 (1987), aff'd, 848 F.2d 1245 (Fed.Cir.1988). A general rule for resolving disagreements between the government and the contractor under the changes clause has been stated as follows:\\nWhere as a result of the Government's misinterpretation of contract provision a contractor is required to perform more or different work, or to higher standards, not called for under its terms, the Contractor is entitled to equitable adjustments pursuant to the Changes Article _\\nJohn Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government Contracts 325 (2d ed.1986).\\nOn May 15, 1987, the contracting officer issued his decision on the claims at issue. In his decision, the contracting officer carefully analyzed the claims presented by plaintiff and granted certain limited portions of the plaintiff's claim under the low grout take modification, but denied the balance of the plaintiff's claims. The following portions of the contracting officer's well-reasoned decision are relevant to this court's review in the instant case.\\nWith respect to the method of drilling that was followed, it is noted that the drilling and grouting specifications for this contract are for a well-defined stage grouting process. In essence, your claim is based upon the Corps not permitting you to perform the job using stop grouting procedure. Such procedures are not a part of your contract specifications.\\nThe specifications, under paragraph 5, \\\"Definition of Procedures for Drilling and Grouting\\\" defined the manner in which the work was to be performed. The work was to be done by section to full depth of the first zone and then the second zone. Paragraph 5.2.9 indicates that upon completion of the section to the full depth of the second zone, then other sections along the grout curtain were to be grouted in a like manner. Upon completion of drilling and grouting a stage in a section, you were permitted to drill and grout in alternate sections to avoid the 24 hour and 100 foot restrictions imposed by paragraph 5.4.2. Had you requested, at the time of performance of work, permission to drill and grout in the adjacent sections, such permission would have been granted, subject to the 24 hour and 100 foot limitations. These limitations would have added greatly to both your time and cost of performance of the work.\\nYour proposed plan for progressively drilling from point A to point B was not submitted until some five and one-half months after the work was completed. This plan ignored the definition of section as per the specifications and considered the limits of the whole zone as one section. It failed to handle treatment of the overlapping grout curtain beneath Monoliths 9 and 10 and did not address the inefficiencies and down times that would result at various times. Inefficiencies and down time in your plan would arise due to the staging requirement, completion of all primary holes to zone depth prior to beginning secondary holes, completion of all secondary holes to zone depth prior to beginning zone 2, and completion of all primary and second holes to full zone 2 depth prior to beginning tertiary holes. Additionally, exploratory drilling would be delayed until zone 2 was essentially complete. Furthermore, drain hole drilling would not be permitted until the grout curtain was completed which would throw further delays and interruptions into your plan. Based upon this review, it becomes quite apparent that your plan would not have been acceptable.\\nDrilling and grouting in alternate sections has been standard stage grouting procedures on Federal Government Agency Projects in order to eliminate time and distance restrictions so as not to delay the work. With the manner in which the Corps permitted you to perform by sections, you were never without a place to drill. Upon completion of the work on the right side of the Dam, you were permitted to perform exploratory drilling to check the effect of grouting for the grout curtain which thus permitted you to begin drain hole drilling at a much earlier time. This method also permitted an orderly manner of drilling and grouting of the overlapping right and left side grout curtains under Monoliths No. 9 and No. 10.\\nTherefore, with respect to the manner in which the work was performed, the Corps allowed you to do the work in a manner than was permissable, given the 100 foot and 24 hour grouting restrictions under 5.4.2. This cannot be construed as being a constructive change.\\nThe court agrees with the carefully crafted decision issued by the contracting officer in this case. In addition, on its face, paragraph 5.4.2 of Section 20 does not discuss section-skipping between drilling and grouting operations. The twenty-four hour and one-hundred foot limitation described in 5.4.2 concerns time and distance restrictions on drilling from hole to hole and not on drilling and grouting in an entire section. The primary holes are spaced ten feet apart, ten to a section. As long as the contractor drilled at least ten holes away from grouting operations during the twenty-four hour period, it would remain one-hundred feet away from a hole, and satisfy the details of the specifications of paragraph 5.4.2.\\nAnother contract provision which imposes a drilling and grouting spacing requirement is paragraph 5.1.2 of Section 20, which states;\\n5.1.2 A section is a reach along the grout curtain, not more than 100 feet in length. Grouting operations will not be permitted in a section at the same time drilling in that section is in progress. Insofar as practicable, the grout curtain will be subdivided into sections in a manner which will facilitate the Contractor's operations.\\nThis contract provision only requires that drilling and grouting may not be conducted simultaneously within one section. Paragraph 5.1.2 is silent regarding drilling and grouting in adjacent sections.\\nIn both the defendant's brief in support of its motion for summary judgment and in its post argument brief, it cites to several paragraphs in Section 20 of the contract which, the defendant alleges, express the Corps' reservation of control over the drilling and grouting sequence of the contractor. A few of the Section 20 paragraphs relied on by the defendant are set out below:\\n1.2 Program. The amount of drilling and grouting will be determined by the Contracting Officer. The amount of drilling and grouting which actually will be required is unknown, and will be governed by conditions encountered as the work progresses. The Contracting Officer reserves the right to require drilling and grouting operations at any location within the limits of the work area.\\n1.4 Procedures. Grouting mixes, pressures, the pumping rate and the sequence in which the holes are drilled and grouted will be determined in the field and shall be as directed.\\n4.1 General. Holes for grouting or exploration as determined by the Contracting Officer, shall be drilled at the locations, in the direction and to the depths shown on the drawings or as directed by the Contracting Officer. The location of succeeding sets of (tertiary) holes, if necessary as determined by the Contracting Officer, shall be determined by the split spacing method as defined in paragraph 5.1.4. The number of succeeding sets of holes will be increased, progressively, by the split spacing method as deemed necessary by the Contracting Officer until the amount of grout used indicates that the foundation is tight.\\n4.5 Exploratory Nx Hole Drilling. The Contractor, as directed by the Contracting Officer, shall perform such exploratory drilling as may be required to determine the condition of the rock prior to grouting or the effectiveness of the grouting operations after grouting.\\n5.1.1 Zone. A zone is a predetermined partial depth of curtain. The first zone extends 30 feet from a baseline determined by factual foundation excavation and the second zone extends approximately 20 feet downward from the bottom of the first zone. It is anticipated that hole spacing will average 10 feet in the first zone and 10 feet in the second zone. However, these spacings will be varied in accordance with conditions encountered and as directed.\\n5.2.2 The holes thus drilled shall be washed and pressure tested, and then grouted, except that when pressure testing indicates a relatively tight hole, the Contracting Officer may direct that the grouting of that hole be omitted for that stage and the hole be left open for drilling and grouting of the next stage.\\nIn addition paragraphs 5.2.4, 5.2.5, 5.2.7, 5.2.8, 5.2.9, 5.3, 5.4.1, 5.4.2, 5.5, 5.6, 5.6.1, 5.6.2, also cited to by the defendant, clearly address the issue of contractor's reservation of direction during contract performance.\\nIn its post-argument brief, the defendant asserts that when the pertinent provisions of the contract are considered, the essence of Section 20 of the contract is to give the Corps, not the contractor, almost complete control over the drilling and grouting work as it progressed. The court agrees. Moreover, the defendant asserts that these provisions are an example of the Corps' express reservation of the right to require drilling and grouting in any part of the work area and that, therefore, the plaintiff is not entitled to an equitable adjustment.\\nThe court finds that the provisions in Section 20 of the contract, which set out the scope and work procedures for the foundation drilling, grouting and drainage holes, clearly indicate that the Corps re tained an enormous degree of control over the drilling and grouting methods to be used by the contractor. Of particular note is Paragraph 1.2 of Section 20, which states that \\\"[t]he Contracting Officer reserves the right to require drilling and grouting operations at any location within the limits of the work area,\\\" and paragraph 1.4 which states that \\\"[gjrouting mixes, pressures, the pumping rate and the sequence in which the holes are drilled and grouted will be determined in the field and shall be as directed.\\\" In addition, paragraph 4.1 adds that \\\"[h]oles for grouting or exploration as determined by the Contracting Officer, shall be drilled at the locations, in the direction and to the depths shown on the drawings or as directed by the Contracting Officer.\\\" These contract provisions indicate that the plan authorized by Mr. Nugen was well within the confines of the contract, and did not constitute a change to the contract.\\nAlthough in the instant case, the text of the contract cannot be reasonably interpreted to preclude drilling and grouting using the plaintiff's one-hundred foot sequential method, the contract clearly indicates that sequencing shall be determined in the field and performed as directed by the government. The plaintiff's interpretation of the contract, that it should have been permitted to drill and grout without skipping a section, although possibly within the parameters of the contract language, was not given an absolute imprimatur by the contract as the only way to proceed. It is clear to the court that the government did not deviate from the contract and scope of work envisioned in the technical specifications, and that in the instant case the contractor was on notice that the sequence of operations under the contract was to be performed at the discretion of, and under the direction of the government officials. As stated above, the contract makes it clear that under paragraph 1.4 of Section 20 of the contract, decisions regarding the sequence of hole drilling and grouting were to be determined in the field as directed by the government's representatives and, not necessarily, by the contracting officer.\\nFurthermore, there is no evidence that the plaintiff or its subcontractor, Penn Drilling, advanced their current interpretation of the contract, on which they base their claim entitling them to compensation for an express or constructive change, pri- or to the submission of the administrative claim. The plaintiff's failure to properly protest the drilling and grouting plan at the time they were directed to follow it shows acceptance of the direction and presumptive acknowledgment that Mr. Nugen was acting within the scope of his authority, and within the terms of the contract, when he developed and implemented the drilling and grouting plan. Additionally, there is no evidence that Penn Drilling or the plaintiff ever communicated their alleged dissatisfaction with Mr. Nugen's direction on the drilling and grouting specifications to the contracting officer.\\nEven, however, if the court were to determine that Mr. Nugen had issued directions which went beyond the terms of the contract, it is well established in law and in practice that parties entering into contracts with the United States Government understand that only an authorized government representative, and generally only the contracting officer, has the requisite authority to authorize changes to the contract which obligate the government to pay additional money for performance. In such cases the contractor must show that its interpretation of the contract was correct, that there was a constructive change order issued and that the person ordering the alleged change had the authority to act for the contracting officer, or the contractor must show that the orders issued were ratified by a contracting officer. See, John Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government Contracts 330 (2d ed. 1986). The Claims Court has followed this doctrine closely. In Calfon Constr. Inc. v. United States, 17 Cl.Ct. 171 (1989), the court stated:\\nTo recover under the contract's changes clause on the basis of a constructive change \\u2014 for work beyond that required by the contract, but without a formal change order \\u2014 the contractor must show that the requirements of the contract were enlarged and that the additional work was not volunteered, but was ordered by a government officer having the requisite authority.\\nId. at 177 (citing Len Co. & Assoc. v. United States, 181 Ct.Cl. 29, 38-39, 385 F.2d 438, 443 (1967)). Similarly, the court in IBI Sec. Service, Inc. v. United States, specified that contractors may not recover increased costs unless they result from additional work beyond the minimal standards required by the contract, and that the work was ordered by the words or deeds of contracting officials. 19 Cl.Ct. 106, 111 (1989), aff'd, 918 F.2d 188 (Fed.Cir.1990). Therefore, even if the section-skipping requirement could be read to effectively change the terms of the contract, in order to recover, the plaintiff would still have to show that Mr. Nugen, the government official who ordered the section-skipping requirement had the requisite contracting authority to issue a change to the contract which obligated the government to pay additional money under the contract.\\nIn his declaration, Mr. Nugen specifically states that he did not have authority to make changes to the contract or to order work performed outside the scope of the contract. Mr. Nugen was the Project Geologist at the Stonewall Jackson Lake Dam. In the joint stipulation of uncontroverted facts, the parties agree that Mr. Nugen was responsible \\\"... for the coordination of the drilling and grouting program of the contract\\\" and that he \\\"was authorized to prepare the Drilling and Grouting Plan utilized in Contract DACW59-83-C-0053.\\\" These stipulations indicate only that Mr. Nugen had authority to direct the plan within the confines of the contract at issue. The plaintiff has failed to present any evidence demonstrating Mr. Nugen's authority to order an actual change order to the contract which would obligate the government to pay additional contract costs, nor has the plaintiff offered any evidence to indicate that the contracting officer ratified Mr. Nugen's directions.\\nTherefore, it is clear to the court that the section-skipping requirement appears not to have constituted a change to the terms of the contract. But, even if the plaintiff could successfully urge that such was the case, Mr. Nugen did not possess the requisite authority to order a change to the contract or to obligate the government to pay additional monies. Moreover, the drilling and grouting plan designed by Mr. Nu-gen pursuant to the terms of the contract, and implementation of that plan, does not constitute a breach of the contract as the plaintiff alleges. The court concludes, therefore, that the defendant's motion for summary judgment on the section-skipping claim must be GRANTED.\\nMotion in Limine \\u2014 Total Cost Measure of Damages\\nIn addition to its motion for summary judgment on the section-skipping claim, the defendant has also filed an alternative motion in limine claiming that the plaintiff, as a matter of law, should not be allowed to rely on the \\\"total cost\\\" method of recovery to compute damages.\\nThe total cost method is not favored and will not be used if there is another more reliable method available to establish cost. Wunderlich Contracting Co. v. United States, 173 Ct.Cl. 180, 193, 351 F.2d 956, 965 (1965). The principal objection to this method of calculating an equitable adjustment is that, if used improperly, it can reimburse a contractor for losses not necessarily related to the reason for the adjustment in the first place. Nevertheless, the use of the total cost approach is not prohibited. Boyajian v. United States, 191 Ct. Cl. 233, 423 F.2d 1231 (1970). Certain safeguards have, however, been established by the courts when it is applied. In WRB Corp. v. United States, 183 Ct.Cl. 409, 426 (1968), the Court of Claims laid down the following guidelines for the use of the total cost method:\\nThe acceptability of the method hinges on proof that (1) the nature of the particular losses make it impossible or highly impracticable to determine them with a reasonable degree of accuracy; (2) the plaintiff's bid or estimate was realistic; (3) its actual costs were reasonable; and (4) it was not responsible for the added expenses.\\nThe defendant claims that the plaintiff cannot meet prerequisite (2) of the WRB test, because Penn Drilling's bid was clearly unrealistic. The defendant asserts that Penn Drilling's bid to plaintiff, the joint venture, J.F. Allen Company and Wiley W. Jackson Company, in August, 1985 was unreasonably low in view of the fact that the fair and reasonable cost estimate, which Penn Drilling furnished to the government in June of 1983, was significantly higher than the amount Penn Drilling agreed to accept from the plaintiff in 1985.\\nThe plaintiff, relying on paragraphs 6-8 of the affidavit of Mr. Thomas B. Sturges, President of Penn Drilling, argues that the bid was not unrealistic. The plaintiff contends that the bid cannot be compared with the June, 1983, reasonable cost estimate because the 1983 estimate was submitted for the sole purpose of creating a budget for the contract. Mr. Sturges, in his affidavit, claims that Penn Drilling's normal practice when asked for budget amounts, is to provide high estimates in order to ensure that sufficient money is budgeted for the drilling and grouting program. The defendant, in its reply brief, argues that paragraphs 6-8 of Mr. Sturges' affidavit fail to comply with RUSCC 56(f), since they do not show that Mr. Sturges has personal knowledge of the information included in the affidavit. The defendant contends that paragraphs 6-8 of Mr. Sturges' affidavit are based on \\\"rank hearsay,\\\" namely, on alleged oral statements made to Mr. Sturges by Mr. Jack Woleslagle, the former Vice-President and Estimator for Penn Drilling, who furnished the quotations to the Corps.\\nRUSCC 56(f) provides, in pertinent part, as follows:\\nSupporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.\\nRUSCC 56(f) sets out three tests to determine whether the contents of an affidavit supporting or opposing a motion for summary judgment may be considered by the court. First, the party's affidavit must be made on \\\"personal knowledge.\\\" Affidavits based on reports and the statements of others, without personal knowledge cannot be considered. Second, the statements set forth in the affidavit must be facts that would be admissible in evidence. Conclusory statements, without factual support, are not admissible and do not comply with rules of this court. Third, the affidavit must show affirmatively that the affiant is competent to testify to the matters stated in the affidavit under RUSCC 56(f). MacMurray v. United States, 15 Cl.Ct. 323, 331 (1988) (citations omitted). If an affidavit does not meet all three of the above tests, it has no value to the court when deciding a summary judgement motion. In applying Rule 56(f), however, the court must only disregard the inadmissible portions of the affidavit in ruling on the motion. Id. at 331-32.\\nThe court agrees that certain portions of paragraphs 6-8 of the Sturges' affidavit are inadmissible, for example, the first sentence of paragraph 6, which describes a conversation to which Mr. Sturges was not a party. However, the court finds that the admissible portions of Mr. Sturges' testimony, regarding the general practices of Penn Drilling and their approach to the contract at issue, provide enough evidence to demonstrate a genuine factual dispute concerning whether or not the plaintiff's bid was reasonable. For example, the evidence presented demonstrates a factual dispute to the court concerning the purpose of the numbers used in the plaintiff's 1983 estimate.\\nThe law is clear that an issue cannot be resolved on summary judgment unless there exists no genuine issue of material fact. RUSCC 56(c). The purpose of the 1983 estimate is a dispositive fact in determining whether the plaintiff's 1985 estimate was realistic. Since the plaintiff's 1985 bid must be realistic in order for the plaintiff to use the total cost method for calculating damages, see WRB Corp. v. United States, 183 Ct.Cl. at 426, the factual dispute concerning the purpose of the 1983 estimate is a material one. Therefore, at this stage of the proceedings, although the court remains skeptical that damages awarded to the plaintiff, if any, should be computed utilizing the total cost method for calculating damages, the defendant's alternative motion in limine is premature and is, therefore, DENIED, subject to renewal at a later date.\\nCONCLUSION\\nFor the reasons discussed above: (1) the plaintiff's motion for partial summary judgment on the section-skipping requirement or alternative breach of contract claim is DENIED; (2) the defendant's motion for summary judgment on the section-skipping requirement is GRANTED; and (3) the defendant's alternative motion in limine is DENIED.\\nIT IS SO ORDERED.\\n. A grout curtain is constructed by drilling and grouting a row of holes, spaced ten feet apart, across the length of the dam. The purpose of the grout curtain is to effect a cement barrier by filling in the cracks and voids in the foundation rock so as to make the rock an impervious and continuous barrier against water seepage.\\n. The program contemplated for drilling and grouting is outlined in paragraph 1.2 of Section 20 of the technical provisions of the contract with the minimum quantity of drilling being represented by grout holes on five-foot centers. Paragraph 1.2 also states:\\nThe amount of drilling and grouting will be determined by the Contracting Officer. The amount of drilling and grouting which actually will be required is unknown, and will be governed by conditions encountered as work progresses. The Contracting Officer reserves the right to require drilling and grouting operations at any location within the limits of the work area.\\n. The parties have stipulated that Warren David Nugen was the Project Geologist for contract DACW59-83-C-0053. In the index to the appendix to the defendant's motion for summary judgment and alternative motion in limine, there is a listing for \\\"Position Description of David Nugen.\\\" That document included in the appendix, and referred to in the index as \\\"Position Description of David Nugen,\\\" does not clearly show that it is the position description for Mr. Nugen. Rather, the document included in the appendix is a numbered job description with several lines crossed out and, although barely readable, Mr. Nugen's name hand-written in the upper right hand corner of the page.\\n. The parties have stipulated to the fact that the Corps has traditionally retained detailed control over grouting operations as they are performed. Furthermore, the parties have stipulated that work at the jobsite is generally directed by the contracting officer or his authorized representative.\\n. \\\"R\\\" and \\\"L\\\" are used to show the right and left sides of the dam, as depicted in the \\\"West Fork River, Foundation Treatment Grouting Plan, Elevation and Sections,\\\" included in plaintiffs appendix.\\n. Although the subcontractor, Penn Drilling, submitted a written plan for progressive drilling in adjacent sections, its plan was not submitted to the Corps until the administrative claim was submitted, which was not until after all drilling and grouting work had been completed. Moreover, this plan, the contracting officer wrote, \\\"ignored the definition of section as per the specifications and considered the limits of the whole zone as one section.\\\" Based upon his review of the Penn Drilling plan, the contracting officer felt that its plan \\\"would not have been acceptable.\\\"\\n. The breakdown of the claim presented to the contracting officer is as follows:\\n(1) An amount of $182,452.25 was claimed as a result of the Corps allegedly requiring work conditions contrary to those identified in the specifications, refusing to permit Penn Drilling to drill and grout in a rational sequence, and for extensive delays in the washing out of grout holes. The plaintiff claimed this amount under the Differing Site Conditions clause or under a constructive change theory.\\n(2) An amount of $109,749.00 was claimed for placing cementitious grout under the Differing Site Conditions clause as a result of a grout underrun, which was more than 80 percent below expected levels.\\n(3) An amount of $31,090.50 was claimed for lost profit on the unused bags of cement as a result of the grout underrun. This portion of the claim was calculated under the Variations in Estimated Quantity clause.\\n(4) An amount of $45,000.00 was claimed to cover fees for consultants, in-house expenses and legal fees. These miscellaneous expenses were allegedly incurred in discussion of job activities, coordination of documentation and preparation of the claim.\\n(5) An amount of $101,577.23 was claimed for markup and support by the plaintiff.\\n. Since RUSCC 56(c) is closely patterned upon Fed.R.Civ.P. 56(c), precedent under the Fed. R.Civ.P. is relevant to interpreting RUSCC 56(c). See Imperial Van Lines Int'l, Inc. v. United States, 821 F.2d 634, 637 (Fed.Cir.1987); Lichtfeld-Massaro, Inc. v. United States, 17 Cl.Ct. 67, 70 (1989).\\n. Section 5.4.2 of Section 20 of the Contract provides:\\n5.4.2 Second Stage. After all first stage grouting in any section has been completed, as specified above, the Contractor shall pro ceed, when so directed, with second stage drilling and grouting in accordance with the procedure outlined herein, but in no case shall the deepening of any hole preparatory to grouting be commenced before a minimum period of 24 hours has elapsed since completion of the previous stage of grouting at that hole; nor shall second stage grouting be conducted within a distance of approximately 100 feet of any hole in which a previous stage of grouting has been completed until the grout in such previous stage hole has set for a period of 24 hours. Grouting at subsequent stages shall conform to the same requirements as to minimum time and distance.\\n. The position description included in the appendix to the defendant's motion for summary judgment describes the geologist's duties with respect to drilling and grouting as \\\"supervise placement of grout curtains\\\" and \\\"[djecides drilling pattern.\\\" Moreover, paragraph 1.4 of Section 20 specifically states that, \\\"... the sequence in which the holes are drilled and grouted will be determined in the field and shall be as directed.\\\"\\n. The total cost method computes damages by calculating the difference between actual expenses and bid or estimated costs. See WRB Corp. v. United States, 183 Ct.Cl. 409, 426 (1968).\\n. At oral argument, in responding to the court's observations regarding the defendant's motion in limine, the defendant's counsel described its motion as \\\"a long shot.\\\" The defendant's counsel went on to say:\\nIt may not be established to the Court's satisfaction, that this contractor had made an unreasonably low bid, and is trying to make itself whole here. Whether we can establish it on Summary Judgment, all we can establish is that they did submit a lower bid for the exact same contract, not a bid but an estimate to us, and they are challenged to why that wasn't reliable.\"}"
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+"{\"id\": \"3546055\", \"name\": \"Pedro TAMAYO-TAMAYO, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent\", \"name_abbreviation\": \"Tamayo-Tamayo v. Holder\", \"decision_date\": \"2013-02-28\", \"docket_number\": \"No. 08-74005\", \"first_page\": \"795\", \"last_page\": \"798\", \"citations\": \"709 F.3d 795\", \"volume\": \"709\", \"reporter\": \"Federal Reporter 3d Series\", \"court\": \"United States Court of Appeals for the Ninth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T21:12:54.457911+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: JOHN T. NOONAN, SUSAN P. GRABER, and RAYMOND C. FISHER, Circuit Judges.\", \"parties\": \"Pedro TAMAYO-TAMAYO, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.\", \"head_matter\": \"Pedro TAMAYO-TAMAYO, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.\\nNo. 08-74005.\\nUnited States Court of Appeals, Ninth Circuit.\\nArgued and Submitted Jan. 16, 2013.\\nFiled Feb. 28, 2013.\\nBernadette Willeke Connolly and Raul Ray, San Jose, CA, for Petitioner.\\nEdward E. Wiggers, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.\\nBefore: JOHN T. NOONAN, SUSAN P. GRABER, and RAYMOND C. FISHER, Circuit Judges.\", \"word_count\": \"1538\", \"char_count\": \"9709\", \"text\": \"OPINION\\nGRABER, Circuit Judge:\\nPetitioner Pedro Tamayo-Tamayo petitions for review of the government's reinstatement of a prior order of removal, following his illegal reentry into the United States after having been removed. Reviewing de novo, Garcia de Rincon v. Dep't of Homeland Sec., 539 F.3d 1133, 1136 (9th Cir.2008), we reject Petitioner's legal challenges to the reinstatement order. Accordingly, we deny the petition.\\nFACTUAL AND PROCEDURAL HISTORY\\nPetitioner was born in Mexico. He entered the United States in 1973. In 1989, the government ordered Petitioner removed to Mexico and removed him that same day.\\nPetitioner reentered the United States, without permission. For unknown reasons, the government chose to seek a new order of removal instead of reinstating the 1989 order of removal. In 1993, the government again ordered Petitioner removed to Mexico and removed him the next day.\\nPetitioner reentered the United States without legal authorization yet again. According to Petitioner, he entered at a border crossing by presenting his pre-1989 permanent resident card to the border official. The border official allowed Petitioner physically to enter the country.\\nThereafter Petitioner filed an application to replace his permanent resident card. Upon receiving the application, the government realized that Petitioner had no legal authority to be in the country. The government sent Petitioner a letter advising him of an appointment \\u2014 ostensibly to discuss his application. When Petitioner arrived for his appointment, however, the government arrested him. The government presented its notice of intent to reinstate the prior order of removal, an immigration official reinstated the prior order of removal, and Petitioner was removed.\\nPetitioner timely petitions for review.\\nDISCUSSION\\nPetitioner argues that the immigration officer committed legal error in determining (1) that he was subject to a valid prior removal order and (2) that he illegally reentered the United States. Petitioner also argues (3) that the immigration officer violated his due process rights by using a ruse to apprehend him.\\nA. Prior Removal Order\\nThe government reinstated Petitioner's 1989 removal order pursuant to 8 U.S.C. \\u00a7 1231(a)(5):\\nIf the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.\\nThe plain text of the statutory provision was met with respect to the 1989 removal order: The Attorney General found that Petitioner had reentered illegally after having been removed under the 1989 removal order, so that order is reinstated from its original date, and Petitioner shall be removed under that order at any time after reentry. We reject, as unsupported and as contrary to the' statute's text, Petitioner's bald assertion that the 1989 removal order was \\\"superseded\\\" or otherwise invalidated simply because a later removal order exists.\\nB. Illegal Reentry\\n\\\"If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated....\\\" 8 U.S.C. \\u00a7 1231(a)(5) (emphasis added). When Petitioner reentered the country after his 1993 removal, he lacked valid documentation that permitted him to enter. Accordingly, he was inadmissible under 8 U.S.C. \\u00a7 1182(a)(7)(A)(i)(I), as an alien \\\"who is not in possession of a valid unexpired [authorization document],\\\" and his entry was illegal.\\nIt is true that Petitioner's most recent entry was procedurally regular: He presented himself to the border officials, he showed them his (invalid) alien registration card, and they allowed him physically to enter the country. But Petitioner's deceptive behavior at the border did not render his entry legal. Nothing in the statute or elsewhere suggests that Congress intended that the reinstatement provision would not apply to aliens who were able to dupe border officials into thinking that they had authorization to enter, or that Congress otherwise intended to reward fraudulent behavior.\\nOur decision in Hing Sum v. Holder, 602 F.3d 1092 (9th Cir.2010), is not to the contrary. It interpreted a different statutory provision \\u2014 the definition of \\\"admission\\\" under 8 U.S.C. \\u00a7 llOKaX^XA). In that case, the petitioner had entered the United States as a legal permanent resident (\\\"LPR\\\") in 1990. Id. at 1093. In 2001, after he was convicted of a serious crime, the government sought to remove him. Id. at 1093-94. Petitioner wanted to apply for a statutory waiver, but that type of relief was available to non-LPRs only. Id. at 1094. Petitioner cleverly argued that, in 1990, he had obtained his LPR status by fraud and that, accordingly, he was a non-LPR for purposes of applying for the statutory waiver. Id.\\nWe held that resolution of the case hinged on the statute's general definition of \\\"admission\\\" under 8 U.S.C. \\u00a7 1101(a)(13)(A): \\\"the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.\\\" Hing Sum, 602 F.3d at 1095-96. We began our analysis of that term by noting that the word \\\"admission\\\" could mean a procedurally regular admission\\u2014 \\\"an inspection and authorization by an immigration officer\\\" \\u2014 or it could mean a substantively legal admission \\u2014 the entry of those \\\"who were properly admissible as LPRs at the time of entry, and not individuals like Sum who were admissible through appearance alone.\\\" Id. at 1096.\\nWe concluded that, for reasons specific to \\u00a7 1101(a)(13)(A) and to the term \\\"admission,\\\" Congress intended \\\"admission\\\" to mean lawful entry only in the procedural sense. Hing Sum, 602 F.3d at 1097-1101. In particular, the substantive meaning would render part of the statute superfluous and also would lead to absurd results. Id. at 1097. For example, the immigration laws sometimes refer to \\\"admission\\\" and other times to \\\"lawful admission.\\\" Id. at 1099. A procedural definition of \\\"admission\\\" gave effect to those provisions referring to \\\"lawful admissions\\\" \\u2014 admissions that are both procedurally lawful and, because they are specified as \\\"lawful admissions,\\\" substantively lawful. Id. We also found support for our procedural interpretation of \\\"admission\\\" in the \\\"evolution of the statute.\\\" Id. Case law and BIA interpretation in effect at the time that Congress defined the term supported our interpretation. Id. at 1099-1101. Finally, we noted that our decision accorded with decisions by our sister circuits and the BIA. Id. at 1096 & n. 3. In sum, we held that the history and context of that specific statutory provision demonstrated that Congress intended the procedural meaning.\\nUnlike in Hing Sum, nothing suggests that Congress intended the procedural definition to apply to the phrase \\\"reentered the United States illegally\\\" in \\u00a7 1231(a)(5). Interpreting the term in its substantive sense does not lead to superfluous text or absurd results, and nothing in the history of \\u00a7 1231(a)(5) suggests that Congress intended the procedural meaning of illegal reentry.\\nWe hold that Petitioner's substantively illegal reentry met the requirement in \\u00a7 1231(a)(5) that he had \\\"reentered the United States illegally,\\\" notwithstanding the fact that he tricked the border official into allowing him physically to enter.\\nC. Due Process\\nThe government's decision to arrest and remove Petitioner when he showed up for his interview did not prejudice him. Accordingly, we need not, and do not, decide whether there was a due process violation. See Morales-Izquierdo v. Gonzales, 486 F.3d 484, 496 (9th Cir.2007) (en banc) (holding that, to obtain relief, a petitioner must demonstrate a due process violation and prejudice).\\n\\\"To show prejudice, [a petitioner] must present plausible scenarios in which the outcome of the proceedings would have been different if a more elaborate process were provided.\\\" Id. at 495 (internal quotation marks omitted). Here, Petitioner makes no allegation that the outcome of the proceedings would have or could have been different, had he been apprehended through other means. At oral argument, he asserted that he was prejudiced because he did not bring a lawyer with him, which he would have done had he known about the government's intentions. But he has not shown how having a lawyer present could have made any difference to the outcome. As discussed above, issuance of the reinstatement order was proper and, even with skilled legal counsel, no relief was available to Petitioner. Accordingly, Petitioner cannot show prejudice, so his due process claim fails. See id. at 496.\\nPetition DENIED.\\n. For the same reason, the Board of Immigration Appeals' (\\\"BIA\\\") decision in In re Areguillin, 17 I. & N. Dec. 308 (B.I.A.1980), also is not contrary to our decision. In that case, the BIA interpreted the phrase \\\"inspected and admitted,\\\" as used in a now-revoked statutory provision.\"}"
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+"{\"id\": \"3558931\", \"name\": \"Sheila M. CRAIG, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee\", \"name_abbreviation\": \"Craig v. Astrue\", \"decision_date\": \"2008-03-11\", \"docket_number\": \"No. 06-55213\", \"first_page\": \"710\", \"last_page\": \"713\", \"citations\": \"269 F. App'x 710\", \"volume\": \"269\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Ninth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:27:00.972000+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sheila M. CRAIG, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, DefendantAppellee.\", \"head_matter\": \"Sheila M. CRAIG, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, DefendantAppellee.\\nNo. 06-55213.\\nUnited States Court of Appeals, Ninth Circuit.\\nSubmitted Nov. 5, 2007 .\\nFiled March 11, 2008.\\nRohlfing Law Firm, Santa Fe Springs, CA, for Plaintiff-Appellant.\\nArmand D. Roth, Esq., SSA \\u2014 Social Security Administration, Office of the Gener al Counsel, San Francisco, CA, for Defendant-Appellee.\\nBefore: FARRIS and PAEZ, Circuit Judges, and BLOCK, District Judge.\\nMichael J. Astrue is substituted for his predecessor, Jo Anne B. Barnhart, as Commissioner of Social Security. See Fed. R.App. P. 43(c)(2).\\nThe panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).\\nThe Honorable Frederic Block, Senior United States District Judge for the Eastern District of New York, sitting by designation.\", \"word_count\": \"1400\", \"char_count\": \"8992\", \"text\": \"MEMORANDUM\\nSheila M. Craig appeals the district court's judgment affirming the Commissioner of Social Security's denial of Craig's application for Supplemental Security Income. \\\"We review the district court[']s decision de novo and therefore must independently determine whether the Commissioner's decision (1) is free of legal error and (2) is supported by substantial evidence.\\\" Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.1996).\\nThe Commissioner's denial was based on the decision of an Administrative Law Judge (\\\"ALJ\\\"), who found that Craig's impairments \\u2014 carpal-tunnel syndrome and back pain \\u2014 were severe, but that they did not prevent her from working as a telemarketer. Craig argues that, in making those findings, the ALJ (1) deprived her of a fair hearing by \\\"foreclosing\\\" her testimony, (2) erroneously concluded that her subjective complaints of pain and the side effects of her medication were \\\"only partially credible,\\\" and (3) erroneously relied on the testimony of a vocational expert that conflicted with the Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles (\\\"SCO\\\"). We agree with the second contention and, consequently, need not address the others. We remand for further proceedings.\\nIn evaluating a claimant's subjective complaints of pain, an ALJ must consider the factors listed in SSR 88-13:\\n1. The nature, location, onset, duration, frequency, radiation, and intensity of any pain;\\n2. Precipitating and aggravating factors (e.g., movement, activity, environmental conditions);\\n3. Type, dosage, effectiveness, and adverse side-effects of any pain medication;\\n4. Treatment, other than medication, for relief of pain;\\n5. Functional restrictions; and\\n6. The claimant's daily activities.\\nSee Smolen, 80 F.3d at 1284. The ALJ may also consider \\\"unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment,\\\" as well as \\\"ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid.\\\" Id. Where, as here, the claimant has produced objective medical evidence of an impairment or impairments that could reasonably be expected to produce some degree of particular symptoms, and there is no evidence of malingering, \\\"the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.\\\" Id. at 1281.\\nThe ALJ assessed Craig's allegations of pain as follows:\\nThe medical record does not support the claimant's assertions that she cannot work because of disabling pain and the side effects of her pain medication. No examining or treating source concluded that the claimant could not work. Indeed, Dr. Altman [a consulting examiner] concluded that the claimant could do work at the medium exertional level. Dr. Papa [a treating chiropractor], moreover, opined that she could not return to her fast food job because she could not lift 50 pounds, but that she could work elsewhere if given vocational rehabilitation.... The claimant notes that she treats herself with heating pads and hand braces.... She asserts that her pain medication makes her too drowsy to work, but this allegation is not mentioned in evidence. Indeed in her pain questionnaire, she stated that her pain medication produced no side effects . She acknowledges that she drives, but she says that she cannot shop and clean her house.... In light of her conflicted statements and the absence of evidence supporting her allegations of disability, I find that the claimant [is] only partially credible.\\nWe conclude that this assessment does not satisfy the Smolen standard.\\nFirst, the ALJ erred in relying on the lack of medical evidence regarding the severity of Craig's pain. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.1998) (\\\"Once the claimant produces medical evidence of an underlying impairment, the Commissioner may not discredit the claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence.\\\").\\nSecond, the opinion evidence cited by the ALJ is not inconsistent with Craig's testimony. Dr. Altman's opinion, which was significantly more optimistic than those of the other physicians who examined Craig, was based on an examination that took place one day after Craig had received a round of palliative epidural injections. Dr. Papa's opinion was explicitly conditioned on Craig's obtaining vocational rehabilitation, which she never received because her claim for worker's compensation was denied. Moreover, elsewhere in her decision, the ALJ rejected Dr. Papa's opinion regarding Craig's ability to sit and stand, in part because chiropractors are not acceptable medical sources under the Commissioner's regulations; the ALJ offered no reason why Papa's opinion was persuasive in one regard, but not the other. Cf., e.g., Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir.2004) (\\\"The ALJ is not entitled to pick and choose from a medical opinion, using only those parts that are favorable to a finding of nondisability.\\\"); Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir.1984) (\\\"[T]he Secretary's attempt to use only the portions [of a report] favorable to her position, while ignoring other parts, is improper.\\\").\\nFinally, we disagree with the ALJ's conclusion that Craig's testimony is internally inconsistent. Although Craig testified that she used heating pads and hand braces, there is no evidence regarding the efficacy of those treatments or whether their use would interfere with Craig's ability to perform work-related tasks. The record further reflects that Craig's driving is limited to a maximum of 30 minutes twice a week for doctor visits, and that Craig must sometimes rely on family members to drive her. Craig's failure to mention side effects on her pain questionnaire is easily explained by the fact that Craig began taking additional medications after completing the questionnaire; the ALJ made no attempt to evaluate the side effects of the new medications.\\nOverall, we find the ALJ's reasons for deeming Craig's testimony \\\"only partially credible\\\" unconvincing. We therefore remand for a reassessment of Craig's credibility; we do not remand solely for a calculation of benefits because the record does not convince us that the ALJ was required to accept Craig's assertion that pain and the side effects of her medication prevented her from doing any work at all. Cf. Smolen, 80 F.3d at 1292 (\\\"In the past, we have credited evidence and remanded for an award of benefits where (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.\\\").\\nBecause the ALJ's faulty assessment of Craig's credibility requires remand, we need not address her remaining arguments. However, we call the Commissioner's attention to our recent observation that SSR 00-4p \\\"explicitly requir[es] that the ALJ determine whether [a vocational] expert's testimony deviates from the Dictionary of Occupational Titles [\\\"DOT\\\"] and whether there is a reasonable explanation for any deviation.\\\" Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir.2007). Further, we trust that, on remand, the ALJ will afford Craig a full and fair opportunity to testify if she chooses to do so.\\nREVERSED and REMANDED.\\nThis disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.\\n. The SCO supplements the DOT and, as such, is subject to the same rules governing use of the DOT. See Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990) (\\\"The Secretary routinely relies on [both the DOT and the SCO] in determining the skill level of a claimant's past work, and in evaluating whether the claimant is able to perform other work in the national economy.'').\"}"
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+"{\"id\": \"3562380\", \"name\": \"William G. SCHAFER, Plaintiff, v. UNITED STATES of America, Defendant\", \"name_abbreviation\": \"Schafer v. United States\", \"decision_date\": \"1972-10-16\", \"docket_number\": \"Civ. A. No. W-4706\", \"first_page\": \"677\", \"last_page\": \"682\", \"citations\": \"353 F. Supp. 677\", \"volume\": \"353\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the District of Arkansas\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:47:10.001851+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William G. SCHAFER, Plaintiff, v. UNITED STATES of America, Defendant.\", \"head_matter\": \"William G. SCHAFER, Plaintiff, v. UNITED STATES of America, Defendant.\\nCiv. A. No. W-4706.\\nUnited States District Court, D. Kansas.\\nOct. 16, 1972.\\nThomas A. Wood, Wichita, Kan., for plaintiff.\\nRobert J. Roth, U. S. Atty., Wichita, Kan., James N. Flaherty and Stephen J. Swift, Tax Div., Dept, of Justice, Washington, D. C., for defendant.\", \"word_count\": \"2896\", \"char_count\": \"17524\", \"text\": \"MEMORANDUM OF OPINION\\nFINDINGS OF FACT AND CONCLUSIONS OF LAW\\nWESLEY E. BROWN, Chief Judge.\\nIn this action, Schafer sues to recover a sum of money alleged to have been erroneously assessed and collected by the Government. The parties have stipulated to all facts pertinent to the decision, and the case is now before us for determination on briefs.\\nA brief, but sufficient, summary of that stipulation is as follows:\\nOn February 1, 1958, Schafer filed a petition for bankruptcy in this district. The Government asserted various claims for taxes and interest totalling $48,788.-85. On March 19, 1963, pursuant to the Order confirming the report of the trustee in bankruptcy, the trustee paid to the Government the sum of $48,788.85.\\nOn October 7, 1969, the Government levied upon property belonging to Schafer for sums representing interest on the various claims heretofore described from February 1, 1958 to March 19, 1963. Schafer paid the claims and filed for a refund.\\nThe question before us is whether or not the bankrupt, Schafer, remained personally liable, after having been adjudicated a bankrupt, for interest on tax liability for the period between the date he filed his petition in bankruptcy and the date such tax liability was paid by the trustee.\\nCONCLUSIONS OF LAW\\nThe position of the United States with respect to the issue presented is as follows: that by statute, a discharge in bankruptcy does not release the bankrupt from tax liability; that by statute, interest upon any tax shall be treated as a tax;' and finally, likewise by statute, claims for taxes may be asserted against the taxpayer bankrupt personally after the termination of the bankruptcy proceedings.\\nWith the exception of two cases not cited by Schafer both parties support their respective positions either by relying upon or distinguishing the same cases.\\nSchafer places heavy reliance on In re Vaughan; the United States relies upon Bruning v. United States. In Vaughan, Chief Judge Swinford stated with respect to the Government's reliance on Bruning:\\n\\\"(The Government) contends that Bruning involved the precise issue before this court and that it impliedly overrules Sword Line and National Foundry. I cannot agree. The Referee correctly ruled that the 'attempt to bring this case within the rule of Bruning is misplaced.'\\n\\\"The distinguishing factor is that in Bruning the interest which became a personal debt of the bankrupt was on unpaid tax; but in the instant case, the tax was paid in full. The Supreme Court held 'that post-petition interest on an unpaid tax debt not discharged by \\u00a7 17 remains after bankruptcy.' [376 U.S. at 363, 84 S.Ct. 906.] [Emphasis in district court opinion.] A review of the record on appeal to the Supreme Court makes clear that it is only the interest on tax unpaid by the bankruptcy estate which was in issue.\\\"\\n*\\n\\\" . . . Consequently, Bruning does not control the case at bar. Nor\\ndoes it overrule Sword Line and National Foundry. These two cases are dispositive of the issues before this court.\\\"\\nA completely opposite conclusion was reached by Judge Brewster in Brackeen v. United States. He stated, with respect to the continued vitality of Sword Line and National Foundry in light of Bruning:\\n\\\"Plaintiff insists that those cases were not overruled and are distinguishable from Bruning. Such was the position in two recent district court decisions of In Re Vaughan, D. C.Ky., 292 F.Supp. 731 (1969), and In Re Johnson Electrical Corp., D.C. S.D.N.Y., 312 F.Supp. 840 (1970). Those decisions are heavily relied upon by plaintiff.\\n*\\n\\\"In the Bruning case, the United States was allowed to collect post-petition interest on a portion of a tax debt which had not been paid in the bankruptcy proceedings. It is this factual distinction, of course, upon which plaintiff rests its case. However, basic to the Supreme Court's holding that the interest was collectible was the preliminary determination as to the nature of the post-petition interest. The crucial language was as follows:\\n'In most situations, interest is considered to be the cost of the use of the amounts owing a creditor and an incentive to prompt payment and, thus, an integral part of a continuing debt. Interest on a tax debt would seem to fit that description. Thus, logic and reason seem to indicate that post-petition interest on a tax claim excepted from discharge by \\u00a7 17 of the Act should be recoverable in a later action against the debtor personally, and there is no evidence of any congressional intent to the contrary.\\n-X- *-**\\u2022\\n'Petitioner asserts that the traditional rule which denies post-petition interest as a claim against the bankruptcy estate also applies to discharge the debtor from personal liability for such interest even if the underlaying tax debt is not discharged by \\u00a7 17. We hold that it does not so apply.' 376 U.S. at p. 362, 84 S.Ct. at p. 908.\\n\\\"The Supreme Court thus adopted the government's theory that post-petition interest is an 'integral part of the tax' and, therefore, nondischargeable under Section 17 of the Act. At the same time, it squelched any further attempts to use the Saper rule as an argument for dischargeability of the interest. Bruning thereby effectively undermined the decisions both of Sword Line and of National Foundry. Furthermore, the Court had granted certiorari not only because of the potentially recurring nature of the problem but also because of an 'apparent conflict between circuits', specifically citing Mighell. While Bruning involved interest on an unpaid tax debt, Mighell involved interest on a paid tax debt. If plaintiff's argument were correct that Bruning is distinguishable on that basis, there would have been no conflict. Obviously, by affirming the Ninth Circuit's decision in Bruning in favor of the government, [317 F.2d 229 (1963)] the Supreme Court disapproved Mighell. [CA 10]\\n\\\"As to the two recent district court opinions relied upon by plaintiff, this Court can find no logical reason why either court distinguished Bruning solely upon the ground that it involved interest on an unpaid tax. The decisions in both cases actually rest upon considerations of fairness to the taxpayer. Unfortunately, as pointed out in Bruning, Section 17, 'is not a compassionate section for debtors. Rather, it demonstrates congressional judgment that certain problems \\u2014 e.g., those of financing government \\u2014 override the value of giving the debtor a wholly fresh start. Congress clearly intended that personal liability for unpaid tax debts survive bankruptcy. The general humanitarian purpose of the Bankruptcy Act provides no reason to believe the Congress had a different intention with regard to the personal liability for the interest on such debts.' 376 U. S. at p. 361, 84 S.Ct. at p. 908.\\\"\\nIn Brackeen, Judge Brewster noted that one of the cases relied upon heavily by the plaintiff therein, In re Johnson Electrical Corporation was on appeal to the Second Circuit. The appellate opinion of Johnson Electric, written by Judge Friendly, reverses the district court, and contains the following pertinent language:\\n\\\"The only basis suggested for disregarding Bruning is that here the entire tax, apparently including pre-petition interest, was paid as a result of the Chapter XI proceeding, whereas in Bruning only a partial payment had been made. In re Vaughan, 292 F.Supp. 731 (E.D.Ky.1968), also sought to diminish the effect of Bruning in this manner, pointing out that scrutiny of the record in that case revealed that a dispute over post-petition interest on the part of the tax claim that was paid in the bankruptcy proceeding had been settled and the appeal involved (and thus determined) only the question of the bankrupt's liability for\\npost-petition interest on the tax that had been left unpaid. Contra Hugh H. Eby Co. v. United States, 319 F.Supp. 942, 943-944 (E.D.Pa.1970). This distinction is not sufficiently substantial to warrant a different result. Either the filing of the petition stops the running of interest on federal tax claims against a bankrupt or it does not. In holding the latter, Bruning made clear that the reasons generally causing disallowance of claims for such interest against the bankrupt estate, to wit, 'the avoidance of unfairness as between competing creditors and the avoidance of administrative inconvenience.' 376 U.S. at 362, 84 S.Ct. at 909, were inapplicable when a non-dischargeable federal tax claim was asserted against the bankrupt himself. Nicholas v. United States, 384 U.S. 678, 86 S.Ct. 1674, 16 L.Ed.2d 853 (1966), relied on by the district court, dealt with the quite different question of allowance of post-petition interest against the bankrupt estate. Far from indirectly undercutting Bruning, the Court was at pains to point out, 384 U.S. at 682 n.9, 86 S.Ct. at 1678-1679 that '[i]t is clear that the interest-bearing quality of the debt is suspended, rather than extinguished, by the filing of a petition in bankruptcy' and that in some circumstances, citing Bruning, 'the accrual of interest may continue during the period of bankruptcy administration.' To be sure, it can be argued that it is unfair to charge a bankrupt with interest during a period when his funds are in custodia legis. But often, perhaps even usually, the money is being used by the debtor in possession or the trustee for a useful business purpose and there is thus no real hardship in the bankrupt's having to pay interest on a claim not subject to discharge. In any event the words of 26 U.S.C. \\u00a7 6873(a) and \\u00a7 17 of the Bankruptcy Act are too strict to leave room for judicial loosening in the service of a policy that at best is doubtful.\\\"\\nIt is likewise noteworthy that the district court case of Eby Company v. United States (Footnote 5, supra) mentioned by Judge Friendly as contra to In re Vaughan, has been affirmed very recently by the Third Circuit. Judge Adams, writing for that Court, stated:\\n\\\"The Eby Company urges that the district court erred in applying Bruning because that ease is factually distinguishable in two regards: (1) that the taxes were paid in full here whereas they were not so - paid in Bruning, and (2) that the Supreme Court in Bruning considered the liability for all post-petition interest whereas here only liability for post-petition, pre-confirmation interest is at issue. However, in Bruning, the Supreme Court held that all post-petition interest, including interest accrued during the pendency of the bankruptcy proceeding, could be collected by the Government from after-acquired assets of the debtor. A fortiori, post-petition, pre-confirmation interest is also collectible. The Supreme Court also held that merely because the Government filed a proof of claim in bankruptcy, and received some payment out of the debtor's bankrupt estate, it was not thereby barred from collecting post-petition interest. That the underlying taxes were later paid in full here does not affect the fact that appellant had the use of the Government's money during the pendency of the reorganization proceeding, and that since the underlying debt is not discharged by operation of Section 17 of the Bankruptcy Act, 11 U.S.C. \\u00a7 35 (1964), neither is the interest which accrues by reason of the use of such money during the pendency of the proceedings. See 376 U.S. at 360, 84 S.Ct. 906, 11 L.Ed.2d 772. Corporation, which thought it assumed fixed and known obligations' when it purchased the debtor's assets as part of the arrangement plan. However, in Bruning, the Supreme Court stated that regardless of the purpose of the Act, Section 17 indicated a 'congressional judgment that certain problems \\u2014e.g., those of financing government \\u2014override the value of giving the debtor a fresh start,' 376 U.S. at 361, 84 S.Ct. at 908. (footnote omitted).\\\"\\nAppellant argues, however, that the purpose of the Bankruptcy Act is to allow the debtor a fresh start in life, and that to 'permit the Government to collect amounts over and above those prescribed by the court is an undue and unfair burden on [the successor]\\nIt is apparent, in our opinion, that In re Vaughan now stands alone with respect to its interpretation of the Supreme Court's decision in Bruning v. United States. Schafer, the plaintiff, urges us to follow the Vaughan Court and find that Bruning must be confined to its particular factual setting, and that by using the words \\\"unpaid tax\\\", the Supreme Court in Bruning was, by implication, saying that interest on a \\\"paid tax\\\" does not remain a personal liability of the otherwise discharged bankrupt-debtor. We_dis^r^_with-*this analysis.\\nThe limits of the Bruning decision were discussed by the Supreme Court in Nicholas v. United States, wherein the Court said:\\n\\\"It is a well-settled principle of American bankruptcy law that in cases of ordinary bankruptcy, the accumulation of interest on claims against a bankrupt estate is suspended as of the date the petition is filed. Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244. That rule, grounded in historical considerations of equity and administrative convenience, was specifieally made applicable to the accumulation of interest on claims for taxes by the decision of this Court in New York v. Saper, 336 U.S. 328, 69 S.Ct. 544, 93 L.Ed. 710.\\nBruning, we conclude, holds that post-petition interest on an unpaid tax debt is not discharged by Section 17 and remains a personal liability of the debt- or after bankruptcy.\\nOne matter remains for discussion. Schafer contends that the Tenth Circuit case of United States v. Mighell, was not expressly disapproved by Bruning and that the factually-limited holding of Bruning requires us to follow Mighell. While it is true that the Supreme Court did not in specific words \\\"expressly disapprove\\\" Mighell it is clear that it decided Bruning to resolve an \\\"apparent conflict between circuits\\\" [Bruning, CA 9, and Mighell, CA 10] and that the Ninth Circuit's view of the question of personal liability for post-petition interest was affirmed. Whether or not such an action constitutes \\\"express disapproval\\\" seems to us a question of legal semantics, the resolution of which is not necessary to the decision in this case. Suffice it to say that if Mighell could have controlled this case at the time of its writing, Bruning now controls, and we are bound to follow it.\\nIn summary, we find that under the facts of this case, interest on the taxes owed by Schafer continued to accrue after the filing of his petition in bankruptcy; that by statute, such interest became a tax; that payment in full of the tax liability (less interest) by the trustee at the time of discharge did not release Schafer from personal liability in an action for recovery of the interest. Accordingly,\\nIt is ordered that the United States' motion for Summary Judgment be granted and that Schafer's motion for Summary Judgment be Denied.\\n. 11 U.S.C. \\u00a7 35(a). The 1966 Amendment of 11 U.S.C. \\u00a7 35(a)(1) [P.L. 89-496] which made dischargeable in bankruptcy debts for taxes which became due and owing more than three years preceding bankruptcy has been held not to apply to cases, such as the instant case, wherein the bankruptcy discharge preceded the effective date of the amendment, United States v. Winters, 424 F.2d 113 (CA 5, 1970). The court also found that the 1966 amendment was effective only in proceedings before bankruptcy courts. No contrary position is taken by Schafer, and the 1966 Amendment's effect is not an issue in this case.\\n. 26 U.S.O. \\u00a7 6601(f) (1).\\n. 26 U.S.C. \\u00a7 6873(a).\\n. United States v. Winters, supra, [Note 1] and Poly Industries v. Mozley, 362 F.2d 453 (CA 9, 1966), cert. den. 385 U.S. 958, 87 S.Ct. 393, 17 L.Ed.2d 304.\\n. Brackeen v. United States, 330 F.Supp. 68 (N.D.Texas, 1971).\\nBruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964).\\nEby Co. v. United States, 456 F.2d 923 (CA 3, 1972), aff'g 319 F.Supp. 942 (E.D.Pa., 1970).\\nJohnson Electrical Corp. v. United States, 442 F.2d 281 (CA 2, 1971), rev'g 312 F.Supp. 840 (S.D.N.Y., 1969). National Foundry Co. of N. Y. v. Director, Internal Revenue, 229 F.2d 149 (CA 2, 1956).\\nNew York v. Saper, 336 U.S. 328, 69 S.Ct. 544, 93 L.Ed. 710 (1949).\\nNicholas v. United States, 384 U.S. 678, 86 S.Ct. 1674, 16 L.Ed.2d 853 (1966).\\nPoly Industries, Inc. v. Mozley, 362 F.2d 453 (CA 9, 1966), cert. den. 385 U.S. 958, 87 S.Ct. 393, 17 L.Ed.2d 304.\\nSword Line v. Industrial Commissioner of N.Y., 212 F.2d 865 (CA 2, 1954), cert. den., 348 U.S. 830, 75 S.Ct. 53, 99 L.Ed. 654 (1954).\\nUnited States v. Mighell, 273 F.2d 682 (CA 10, 1959).\\nUnited States v. Winters, 424 F.2d 113 (CA 5, 1970).\\nVaughan, In re, 292 F.Supp. 731 (E.D. Ky., 1968).\\n. Of. Thomas v. Western Car Co., 149 U.S. 95, 13 S.Ct. 824, 37 L.Ed. 663. It is clear that the interest-bearing quality of the debt is suspended, rather than extinguished, by the filing of a petition in bankruptcy. In certain circumstances not here relevant, the accrual of interest may continue during the period of bankruptcy administration. Cf. Bruning v. United States (citation omitted). 3 Collier on Bankruptcy 1858 et seq. (14th Ed., 1964).\\\" [Emphasis ours.]\\n. Nicholas, Ibid.\\n. United States v. Mighell, Ihid.\"}"
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+"{\"id\": \"3659967\", \"name\": \"UNITED STATES of America, v. Johnny GUNTER, Appellant\", \"name_abbreviation\": \"United States v. Gunter\", \"decision_date\": \"2009-06-24\", \"docket_number\": \"No. 07-1291\", \"first_page\": \"135\", \"last_page\": \"135\", \"citations\": \"569 F.3d 135\", \"volume\": \"569\", \"reporter\": \"Federal Reporter 3d Series\", \"court\": \"United States Court of Appeals for the Third Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:22:04.206499+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before FISHER, JORDAN, and VAN ANTWERPEN, Circuit Judges.\", \"parties\": \"UNITED STATES of America, v. Johnny GUNTER, Appellant.\", \"head_matter\": \"UNITED STATES of America, v. Johnny GUNTER, Appellant.\\nNo. 07-1291.\\nUnited States Court of Appeals, Third Circuit.\\nOpinion and Judgment Entered June 9, 2008.\\nPetition for Writ of Certiorari Granted April 27, 2009.\\nSubmitted on Remand from the Supreme Court of the United States June 16, 2009.\\nDated: June 24, 2009.\\nFrancis C. Barbieri, Jr., Office of United States Attorney, Philadelphia, PA, for United States of America.\\nDavid L. McColgin, Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, for Appellant.\\nBefore FISHER, JORDAN, and VAN ANTWERPEN, Circuit Judges.\", \"word_count\": \"139\", \"char_count\": \"905\", \"text\": \"JUDGMENT ORDER\\nFRANKLIN S. VAN ANTWERPEN, Circuit Judge.\\nAppellant's conviction is AFFIRMED. The judgment of sentence entered by the District Court is VACATED and this case is REMANDED to the District Court for sentencing in light of Spears v. United States, 555 U.S. -, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009).\"}"
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+"{\"id\": \"368147\", \"name\": \"UNITED STATES v. UNIVIS LENS CO., INC. et al.\", \"name_abbreviation\": \"United States v. Univis Lens Co.\", \"decision_date\": \"1942-05-11\", \"docket_number\": \"No. 855\", \"first_page\": \"241\", \"last_page\": \"254\", \"citations\": \"316 U.S. 241\", \"volume\": \"316\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"Me. Justice Jackson took no part in the consideration or decision of these cases.\", \"parties\": \"UNITED STATES v. UNIVIS LENS CO., INC. et al.\", \"head_matter\": \"UNITED STATES v. UNIVIS LENS CO., INC. et al.\\nNo. 855.\\nArgued April 9, 10, 1942.\\nDecided May 11, 1942.\\nMr. Samuel S. Isseks and Assistant Attorney General Arnold, with whom Solicitor General Fahy and Messrs. James C. Wilson, Richard H. Demuth, and Stanley E. Disney were on the brief, for the United States.\\nMr. H. A. Toulmin, Jr., with whom Messrs. Frederick S. Duncan and John M. Mason were on the brief, for appellees in No. 855 and appellants in No. 856.\\nTogether with No. 856, Univis Lens Co., Inc. et al. v. United States, also on appeal from the District Court of the United States for the Southern District of New York.\", \"word_count\": \"3991\", \"char_count\": \"23648\", \"text\": \"Mr. Chief Justice Stone\\ndelivered the opinion of the Court.\\nThese cases come here on direct appeal and cross appeal from a judgment of the District Court granting in part and denying in part the Government's prayer for an in junction restraining violations of \\u00a7 \\u00a7 1 and 3 of the Sherman Act, 15 U. S. C. \\u00a7 1,3, which make unlawful any contract, combination or conspiracy in restraint of trade or commerce among the states. The principal questions for decision are:\\nFirst: Whether the system established and maintained by the Univis Corporation, appellee and cross appellant, for licensing the manufacture and sale of patented multifocal eyeglass lenses is excluded by the patent monopoly from the operation of the Sherman Act.\\nSecond: Whether if not so excluded the resale price provisions of the licensing system are within the prohibition of the Sherman Act and not exempted from it by the provisions of the Miller-Tydings Act amendment of \\u00a7 1 of the Sherman Act, 50 Stat. 693.\\nAppellee, Univis Lens Company, was the owner of a number of patents and two trademarks relating to multifocal lenses. In 1931 it organized appellee, Univis Corporation. The Lens Company then acquired and now holds a majority of the stock of the Corporation. The individual appellees are the principal stockholders of the Lens Company. They are stockholders in the Corporation and are the principal officers of both corporations, which may for the purposes of this suit be treated as though they were a single corporation. Upon the organization of the Corporation, the Lens Company transferred to it all its interest in the patents and trademarks presently involved, and the Corporation then proceeded to set up and has since maintained the licensing system which the Government now assails.\\nThe relevant features of the system are as follows: The Corporation licenses the Lens Company to manufacture lens blanks and to sell them to designated licensees of the Corporation, upon the Lens Company's payment to the Corporation of an agreed royalty of 50 cents a pair. The lens blanks are rough opaque pieces of glass of suitable size, design and composition for use, when ground and polished, as multifocal lenses in eyeglasses. Each blank is composed of two or more pieces of glass of different refractive power, of such size, shape, and composition and so disposed that when fused together in the blank it is said to conform to the specifications and claims of some one of the Corporation's patents.\\nThe Corporation also issues three classes of licenses\\u2014 licenses to wholesalers, to finishing retailers and to prescription retailers. The licenses to wholesalers authorize the licensees to purchase the blanks from the Lens Company, to finish them by grinding and polishing, and to sell them to prescription licensees only at prices fixed by the Corporation licensor. In finishing the lenses so as to make them an effective aid to vision of the prospective wearer, to whom the prescription retailer sells, it is necessary for the wholesaler, by grinding the blanks, to conform their curvatures to the prescription supplied by the retailer with his order. By the terms of the license the wholesalers are required to keep full accounts of all sales, showing the sales prices of lenses and the names of the purchasers, and to make them available to representatives of the Corporation.\\nThe licenses to finishing retailers\\u2014who purchase the blanks from the Lens Company, grind and polish them and adjust the lenses, in frames or supports, to the eyes of the consumers\\u2014contain similar provisions. The retailers are licensed to purchase the blanks of the Lens Company and to sell them to their customers at prices prescribed by the Corporation licensor.\\nBoth the licenses to wholesalers and to finishing retailers require the licensee to notify the Corporation \\\"of any violation on the part of any jobbers or other licensees of the agreements respectively made by them with the Corporation, and to assist the Corporation in all possible ways in securing evidence against, and enforcing its agreements with such jobbers and licensees.\\\"\\nThe licenses to prescription retailers, who are without facilities for grinding and finishing the lenses, but who prescribe and adjust glasses for their customers, are signed both by the Corporation and a licensor wholesaler, and grant to the retailer a \\\"franchise to prescribe and fit Univis lenses,\\\" in return for which the prescription retailer agrees to sell finished lenses only to consumers and only at prices prescribed by the Corporation.\\nAll the licenses to wholesalers and retailers recite the Corporation's ownership of the lens patents and purport to confer on the licensee the privilege of selling the patented invention in the manner and to the extent stated. No royalties are exacted of any of the licensees other than the 50 cents collected by the Corporation for each pair of blanks sold by the Lens Company. The rewards of the corporate appellees for the exploitation of the patents and the patented lenses are derived wholly from the sales by the Lens Company of the blanks, from the proceeds of which the 50 cent royalty is paid.\\nThe prices prescribed and maintained under the licensing system are: $3.25 a pair for the blanks sold by the Lens Company to wholesalers, and $4 a pair for those sold to finishing retailers; $7 a pair for finished lenses sold by wholesalers; $16 a pair for white, and $20 for tinted, lenses sold to consumers by prescription and finishing retailers.\\nThe Corporation pursues the policy of issuing licenses to \\\"qualified licensees\\\" who, it is said, are required to maintain \\\"high standards of practice\\\" and to be skilled in the performance of the services which they undertake to render. According to the Corporation's instructions to its field representatives, \\\"price cutters\\\" are not eligible as prescription retailer licensees. Inquiry is made to ascertain whether prospective licensees advertise prices, and whether they are considered in their communities to be price cutters. The Corporation cancels licenses principally because of the failure of licensees to adhere to the price fixing provisions but also because they advertise prices or the acceptance of installment payments, or for other forms of advertising objectionable to it; for selling Univis lenses to customers other than those designated by the Corporation; for not giving a certain percentage of the licensees' multifocal lens business to Univis; because the licensee is located in a drug, department or jewelry store, or because the licensee engaged in price cutting in the sale of the products of other manufacturers.\\nFor a time the Corporation licensed approximately 20 per cent of the retailers in a locality. It now licenses a larger percentage but not more than 50 per cent. There are approximately 330 wholesaler licensees, 325 finishing retailer licensees and 6,500 prescription retailer licensees located in various states of the Union, including New York and the District of Columbia. The Corporation, by its representatives, solicits licenses and negotiates with licensees in the towns and cities where they conduct their business, including the Southern District of New York. The Lens Company, whose annual sales volume is approximately $1,000,000, ships blanks hi interstate commerce from its factory in Ohio to wholesalers and finishing licensees in the various places where they are located, including the Southern District, where its representatives visit licensees for the purpose of instructing them in finishing lens blanks and for promoting sales of Univis lenses. The facts amply established the venue of the court below. Eastman Kodak Co. v. Southern Photo Co., 273 U. S. 359, 373.\\nOf the sixteen patents owned by the Corporation, three are unrelated to the issues of the present case; five are for methods of producing lenses utilized by the Lens Company in manufacturing blanks and do not concern any method or process employed by the licensees who finish the lens blanks. Each of the remaining eight patents relates to the shape, size, composition and disposition of the pieces of glass of different refractive power in the blanks into which they are fused.\\nThe District Court found, 41 F. Supp. 258, that the claims of each of these eight patents are for a finished lens and that consequently the wholesalers and finishing retailers, in grinding and polishing each lens, practice in part the patent, in conformity to which the Lens Company has manufactured the blanks which it supplies. The court thought that without the granted license the final step in finishing the lens would infringe the patent and concluded that for this reason the Corporation could condition its licenses upon the maintenance by the licensee of the prescribed retail price. See United States v. General Electric Co., 272 U. S. 476. But it held that the prescription retailer licenses are unlawful because their restrictions upon the resale of the finished product are not within the patent monopoly and are proscribed by the Sherman Act.\\nIt also held that certain \\\"fair trade agreements\\\" entered into by the Lens Company with the licensees for the control of resale prices of the finished lenses, were not within the exception to the Sherman Act created by the MillerTydings Act. This was because the Lens Company had undertaken to fix the resale price of the finished lenses, which are a different product from the lens blanks which it manufactures and sells. The court accordingly limited the relief which it granted to an injunction restraining respondents from carrying out or enforcing the restrictive provisions of the prescription retailer licenses and the fair trade agreements, and from using its licensing system\\u2014as has been done in one instance\\u2014as the means of preventing a particular competitior from manufacturing and distributing multifocal lens blanks similar in appearance to those produced by the Lens Company.\\nThe Government has not put in issue the validity of the lens patents, but argues that their scope does not extend beyond the structure of the lens blanks and consequently affords no basis for the Corporation's restrictions on the sale of the finished lenses which the wholesalers and finishing retailers fashion from blanks purchased from the Lens Company. It insists that the novel features of the invention do not include more than the combination of shape, size and arrangement of the described pieces of glass when they are fused into the blank; that the grinding and polishing of the blank involve no practice and add no feature not common to the finishing and \\\"fitting\\\" of other types of multifocal lenses which are not covered by the patents; and that their scope cannot be lawfully extended to a procedure not in itself novel merely because it is applied to an article which embodies the only novel features of the alleged invention, and has by the sale become a lawful subject of commerce.\\nThe record gives no account of the prior art and does not provide us with other material to which, if available, resort might appropriately be had in determining the nature of an alleged invention and the validity and scope of the patent claims founded upon it. In any event, we find it unnecessary, in the circumstances of this case, to decide whether, as the court below held, the patent claims can rightly be said to include the finishing of the blanks.\\nAs appellees concede, the invention of only a single lens patent is utilized in making each blank and finishing it as a lens. We therefore put to one side questions which might arise if the finisher of a particular lens blank utilized the invention of some patent other than the patent which was practiced in part by the manufacture of the blank. And we assume for present purposes, without deciding, that the patent is not fully practiced until the finishing licensee has ground and polished the blank so that it will serve its purpose as a lens. But merely because the licensee takes the final step in the manufacture of the patented product, by doing work on the blank which he has purchased from the patentee's licensee, it does not follow that the patentee can control the price at which the finished lens is sold.\\nNotwithstanding the assumption which we have made as to the scope of the patent, each blank, as appellees insist, embodies essential features of the patented device and is without utility until it is ground and polished as the finished lens of the patent. We may assume also, as appellees contend, that sale of the blanks by an unlicensed manufacturer to an unlicensed finisher for their completion would constitute contributory infringement by the seller. Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U. S. 325, 332-33; cf. Carbice Corp. v. American Patents Corp., 283 U. S. 27, 34.\\nBut in any case it is plain that where the sale of the blank is by the patentee or his licensee\\u2014here the Lens Company\\u2014to a finisher, the only use to which it could be put and the only object of the sale is to enable the latter to grind and polish it for use as a lens by the prospective wearer. An incident to the purchase of any article, whether patented or unpatented, is the right to use and sell it, and upon familiar principles the authorized sale of an article which is capable of use only in practicing the patent is a relinquishment of the patent monopoly with respect to the article sold. Leitch Mfg. Co. v. Barber Co., 302 U. S. 458, 460-61; B. B. Chemical Co. v. Ellis, 314 U. S. 495. Sale of a lens blank by the patentee or by his licensee is thus in itself both a complete transfer of ownership of the blank, which is within the protection of the patent law, and a license to practice the final stage of the patent procedure. In the present case the entire consideration and compensation for both is the purchase price paid by the finishing licensee to the Lens Company. We have no question here of what other stipulations, for royalties or otherwise, might have been exacted as a part of the entire transaction, which do not seek to control the disposition of the patented article after the sale. The question is whether the patentee or his licensee, no longer aided by the patent, may lawfully exercise such control.\\nThe declared purpose of the patent law is to promote the progress of science and the useful arts by granting to the inventor a limited monopoly, the exercise of which will enable him to secure the financial rewards for his invention. Constitution of the United States, Art. I, \\u00a7 8, Cl. 8; 35 U. S. C. \\u00a7 31, 40. The full extent of the monopoly is the patentee's \\\"exclusive right to make, use, and vend the invention or discovery.\\\" The patentee may surrender his monopoly in whole by the sale of his patent or in part by the sale of an article embodying the invention. His monopoly remains so long as he retains the ownership of the patented article. But sale of it exhausts the monopoly in that article and the patentee may not thereafter, by virtue of his patent, control the use or disposition of the article. Bloomer v. McQuewan, 14 How. 539, 549-50; Adams v. Burke, 17 Wall. 453; Hobbie v. Jennison, 149 U. S. 355. Hence the patentee cannot control the resale price of patented articles which he has sold, either by resort to an infringement suit, or, consistently with the Sherman Act (unless the Miller-Tydings Act applies), by stipulating for price maintenance by his vendees. Bauer & Cie v. O'Donnell, 229 U. S. 1; Boston Store v. American Graphophone Co., 246 U. S. 8; Straus v. Victor Talking Machine Co., 243 U. S. 490; Ethyl Gasoline Corp. v. United States, 309 U. S. 436, 456-57, and cases cited.\\nWe think that all the considerations which support these results lead to the conclusion that where one has sold an uncompleted article which, because it embodies essential features of his patented invention, is within the protection of his patent, and has destined the article to be finished by the purchaser in conformity to the patent, he has sold his invention so far as it is or may be embodied in that particular article. The reward he has demanded and received is for the article and the invention which it embodies and which his vendee is to practice upon it. He has thus parted with his right to assert the patent monopoly with respect to it and is no longer free to control the price at which it may be sold either in its unfinished or finished form. No one would doubt that if the patentee's licensee had sold the blanks to a wholesaler or finishing retailer, without more, the purchaser would not infringe by grinding and selling them. The added stipulation by the patentee fixing resale prices derives no support from the patent and must stand on the same footing under the Sherman Act as like stipulations with respect to unpatented commodities. Ethyl Gasoline Corp. v. United States, supra.\\nOur decisions have uniformly recognized that the purpose of the patent law is fulfilled with respect to any particular article when the patentee has received his reward for the use of his invention by the sale of the article, and that once that purpose is realized the patent law affords no basis for restraining the use and enjoyment of the thing sold. Adams v. Burke, supra, 456; Keeler v. Standard Folding Bed Co., 157 U. S. 659; Motion Picture Co. v. Universal Film Co., 243 U. S. 502; and see cases collected in General Pictures Co. v. Electric Co., 305 U. S. 124, 128, n. 1. In construing and applying the patent law so as to give effect to the public policy which limits the granted monopoly strictly to the terms of the statutory grant, Morton Salt Co. v. Suppiger Co., 314 U. S. 488, the particular form or method by which the monopoly is sought to be extended is immaterial. The first vending of any article manufactured under a patent puts the article beyond the reach of the monopoly which that patent confers. Whether the licensee sells the patented article in its completed form or sells it before completion for the purpose of enabling the buyer to finish and sell it, he has equally parted with the article, and made it the vehicle for transferring to the buyer ownership of the invention with respect to that article. To that extent he has parted with his patent monopoly in either case, and has received in the purchase price every benefit of that monopoly which the patent law secures to him. If he were permitted to control the price at which it could be sold by others he would extend his monopoly quite as much in the one case as in the other, and he would extend it beyond the fair meaning of the patent statutes and the construction which has hitherto been given to them.\\nThere is thus no occasion for our reconsideration, as the Government asks, of United States v. General Electric Co., supra, on which appellees rely. The Court in that case was at pains to point out that a patentee who manufactures the product protected by the patent and fails to retain his ownership in it can not control the price at which it is sold by his distributors (272 U. S. at 489). Accordingly, neither the Lens Company nor the Corporation, by virtue of the patents, could after the sale of the lens blank exercise any further control over the article sold.\\nThe price fixing features of appellees' licensing system, which are not within the protection of the patent law, violate the Sherman Act save only as the fair trade agreements may bring them within the Miller-Tydings Act. Agreements for price maintenance of articles moving in interstate commerce are, without more, unreasonable restraints within the meaning of the Sherman Act because they eliminate competition, United States v. Trenton Pot teries Co., 273 U. S. 392; United States v. Socony-Vacuum Co., 310 U. S. 150, and restrictions imposed by the seller upon resale prices of articles moving in interstate commerce were, until the enactment of the Miller-Tydings Act, 50 Stat. 693, consistently held to be violations of the Sherman Act. Ethyl Gasoline Co. v. United States, supra, 457, and cases cited.\\nThe Miller-Tydings Act provides that nothing in the Sherman Act \\\"shall render illegal, contracts or agreements prescribing minimum prices for the resale of a commodity which bears, or the label or container of which bears, the trade mark, brand, or name of the producer or distributor of such commodity and which is in free and open competition with commodities of the same general class produced or distributed by others . . whenever such agreements are lawful where the resale is made.\\nThe contracts entered into by the Lens Company with the licensees of the Corporation stipulate for the maintenance of the prices which are prescribed by the licensing system. Appellees assert, and we assume for present purposes, that the blanks which the Lens Company sells and the finished lenses are marked by appellees' trademark as required by the statute. In the contracts the Lens. Company is designated as the manufacturer of \\\"eye glass lenses\\\" which are distributed and sold under the trademark of the manufacturer. But the Lens Company manufactures the blanks and not the finished lenses to which the resale prices apply. It is therefore not the manufacturer of the \\\"commodity\\\" which the licensees sell, and the licensees are not engaged in the \\\"resale\\\" of the same commodity they buy. We find nothing in the language of the Miller-Tydings Act, or in its legislative history, to indicate that its provisions were to be so applied to products manufactured in successive stages by different processors that the first would be free to control the price of his successors. The prescribed prices are thus not within the Miller-Tydings exception to the Sherman Act.\\nAppellees stress the features of .their licensing system by which it is said they protect the public interest and their own good will by the selection as licensees of those who are specially skilled and competent to render the service which they undertake. But if we assume that such restrictions might otherwise be valid, cf. Fashion Guild v. Trade Commission, 312 U. S. 457, 467, these features are so interwoven with and identified with the price restrictions which are the core of the licensing system that the case is an appropriate one for the suppression of the entire licensing scheme even though some of its features, independently established, might have been used for lawful purposes. Ethyl Gasoline Corp. v. United States, supra, 461. The injunction of the District Court will therefore be continued, and extended so as to suppress all the license contracts and the maintenance of the licensing system which appellees have established, other than the Corporation's license to the Lens Company. The judgment in No. 856 is affirmed. The judgment in No. 855 is reversed, and both cases are remanded to the district court for the entry of an appropriate decree in conformity to this opinion.\\nNo. 855 reversed.\\nNo. 856 affirmed.\\nMe. Justice Jackson took no part in the consideration or decision of these cases.\"}"
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+"{\"id\": \"3698887\", \"name\": \"UNITED STATES of America, v. Jose BRITO, Defendant\", \"name_abbreviation\": \"United States v. Brito\", \"decision_date\": \"2008-12-22\", \"docket_number\": \"No. 08 Cr. 420(SCR)\", \"first_page\": \"582\", \"last_page\": \"590\", \"citations\": \"592 F. Supp. 2d 582\", \"volume\": \"592\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States District Court for the Southern District of New York\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:54:54.798551+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"UNITED STATES of America, v. Jose BRITO, Defendant.\", \"head_matter\": \"UNITED STATES of America, v. Jose BRITO, Defendant.\\nNo. 08 Cr. 420(SCR).\\nUnited States District Court, S.D. New York.\\nDec. 22, 2008.\\nSarah Rebecca Krissoff, U.S. Attorney\\u2019s Office, White Plains, NY, for United States of America.\\nJames Kousouros, Law Off. James Kou-souros, Kew Gardens, NY, for Defendant.\", \"word_count\": \"4202\", \"char_count\": \"25273\", \"text\": \"MEMORANDUM DECISION AND ORDER\\nSTEPHEN C. ROBINSON, District Judge.\\nJose Brito has been charged with two counts of violating the laws of the United States. The indictment charges that, on March 21, 2008, Mr. Brito, along with several other individuals, distributed and possessed with intent to distribute cocaine and also entered into a conspiracy to violate the narcotics laws, both in violation of 21 U.S.C. \\u00a7 812, 841(a)(1), and 841(b)(1)(C). Following his arrest, Mr. Brito made several statements to a police officer while in the custody of the City of Yonkers Police Department. Mr. Brito has filed a motion, among other things, to suppress those statements, and, on November 27, 2008, the Court held an evidentiary hearing. On December 8, 2008, the parties submitted simultaneous memoranda addressing the legal issues raised by the testimony presented at the hearing, and Mr. Brito submitted a supplemental memorandum on December 9, 2008.\\nFor the reasons set forth in this opinion, the Court grants in part and denies in part Mr. Brito's motion to suppress.\\nI\\nBACKGROUND\\nA. Facts\\nOn March 20, 2008, a confidential informant (the \\\"Cl\\\") working with the City of Yonkers Police Department met an individual later identified as Jose Brito outside of the Yonkers Motor Inn (the \\\"Inn\\\"), in Yonkers, New York. After the meeting, the Cl informed police officers that Mr. Brito had told him that he (Mr. Brito) had three kilograms of cocaine to sell. The following day, March 21, 2008, the Cl, under the supervision of law enforcement officers, called Mr. Brito to arrange a purchase of the three kilograms of cocaine. The Cl and Mr. Brito agreed to meet at the parking lot of the Inn.\\nThe Cl then met with Mr. Brito in the parking lot, and law enforcement officers observed him getting into Mr. Brito's car. Shortly thereafter, the Cl called an officer working with the Drug Enforcement Administration Task Force (the \\\"Task Force\\\") as well as an undercover Task Force officer. The Cl confirmed that Mr. Brito had told him that the drugs would be arriving shortly. The Cl then called the Task Force officers to tell them that the drugs had arrived in a second car.\\nThe undercover officer left the guest room at the Inn wearing a concealed recording device, and he entered the second car. Inside the car were the Cl, Mr. Brito, and a third-man later identified as Juan Deoleo. After discussing the details of the drug purchase, Mr. Brito took the undercover officer to the second car, which was being driven by an individual later identified as Jason Anderson. Mr. Brito bent over the front seat and retrieved what appeared to be three kilograms of cocaine. Mr. Brito and the undercover officer discussed the details of the drug purchase, and Anderson confirmed that the drugs were good.\\nThereafter, the undercover officer exited the second car, and Mr. Brito, Anderson, and Deoleo were arrested. The three kilo grams of cocaine were field tested; one of the kilograms did not test positive for cocaine, and the second and third kilograms tested positive in certain places and negative in others.\\nB. Procedural History\\nOn the basis of this alleged conduct, Mr. Brito was indicted on two counts of violating the laws of the United States. The indictment charges that, on March 21, 2008, Mr. Brito, along with several other individuals, distributed and possessed with intent to distribute crack cocaine and also entered into a conspiracy to violate the narcotics laws, both in violation of 21 U.S.C. \\u00a7 812, 841(a)(1), and 841(b)(1)(C). Following his arrest, Mr. Brito made three sets of statements to Jose Pina, a detective with the City of Yonkers Police Department.\\nOn September 15, 2008, Mr. Brito filed a motion seeking to suppress those statements and seeking immediate disclosure of Brady, Giglio, Rule 16 discovery, and Rule 404(b) evidence. In connection with his motion to suppress, Mr. Brito originally submitted an affidavit stating that \\\"[a]t no time during this period did the agents read me any rights prior to speaking with me.\\\" Affidavit of Jose Brito (\\\"Brito Aff.\\\") \\u00b6 3. Despite this claim, it appears from the testimony presented at the November 27, 2008, evidentiary hearing and from the post-hearing legal memoranda that Mr. Brito has changed course \\u2014 claiming that he was read, but did not waive, his Miranda rights. The Court turns to that testimony now.\\nC. Suppression Hearing\\nAt the December 8 evidentiary hearing, the Government called as a witness Detective Jose Pina. Detective Pina testified that, on March 21, 2008, he, along with Detective Louis Venturino, interviewed Mr. Brito at the headquarters of the City of Yonkers Police Department.\\nAccording to Detective Pina, he advised Mr. Brito of his Miranda rights as soon as Mr. Brito was brought into an interview room. In advising Mr. Brito of his rights, Detective Pina used a U.F.-76 \\\"Warning of Rights Card,\\\" which contains the Miranda warnings and is issued by the City of Yonkers Police Department. The card lists the five warnings under the heading, \\\"Rules of Interrogation\\\":\\n1. You have the right to remain silent.\\n2. Anything you say can and will be used against you in a court of law.\\n3. You have the right to talk to a lawyer and have him present with you while you are being questioned.\\n4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish.\\n5. You can decide at any time to exercise these rights and not answer any questions or make any statements.\\nGov't Exh. I. Immediately below these warnings, appears the heading, \\\"Waiver,\\\" and immediately below that are written the following two questions:\\n1. Do you understand each of these rights I have explained to you?\\n2. Having these rights in mind, do you wish to talk to me/us now?\\nId.\\nDetective Pina testified that he read to Mr. Brito each of the five warnings, one at a time. After reading each warning, Detective Pina paused to ask Mr. Brito if he understood the warning that he had been read. Each time, Mr. Brito answered, \\\"Yes.\\\" At no point did Mr. Brito indicate that he wanted to stop the questioning or to speak to his lawyer. After reading the five warnings to Mr. Brito and having received Mr. Brito's assurances that he understood each warning, however, Detective Pina did not ask Mr. Brito whether Mr. Brito wished to waive these rights.\\nInstead, Detective Pina asked Mr. Brito \\\"if he wanted to cooperate with this investigation, if he wanted to speak to us regarding this investigation.\\\" Suppression Hr'g Tr. (\\\"Hr'g Tr.\\\") 12, Dec. 8, 2008. In response, Mr. Brito inquired about the charges against him. Detective Pina explained that \\\"he was being charged for delivering three kilograms of cocaine to an undercover officer.\\\" Id. Mr. Brito asked, \\\"[W]ell, that's now, but how about after the drugs are analyzed?\\\" Id. Detective Pina explained to Mr. Brito that he was \\\"still going to get charged with at least two kilograms of cocaine.\\\" Id.\\nDetective Pina then informed Mr. Brito that he (Detective Pina) was assigned to the DEA Task Force and that federal authorities were handling the case. Mr. Brito remarked, \\\"[FJederal, I know the federal system. My attorneys will take care of this.\\\" Id. Detective Pina told Mr. Brito that the charges against him were serious and that he was facing a great deal of time in prison and then asked him whether he would cooperate further with the investigation. Mr. Brito responded, \\\"I ain't like that. I don't give . up people.\\\" Id. at 14. At that point, Detective Pina asked Mr. Brito if he would sign the Miranda warning card, to which Mr. Brito responded, \\\"I'm not signing fuckin' nothing.\\\" Id. After this, the interview, which Detective Pina estimates lasted about fifteen minutes, ended.\\nDetective Pina and Detective Venturino then began to interview Deoleo and Anderson, the other individuals arrested at the Inn. About ten to fifteen minutes after Mr. Brito's interview ended, the detectives were escorting Deoleo out of the bathroom, and Mr. Brito shouted, \\\"Don't say anything to them. My attorneys will take care of us.\\\" Id.\\nLater that day, Detective Pina was informed by one of the Yonkers Police Department detectives that Mr. Brito had serious prior charges, including a robbery charge. In a common hallway outside of the holding cells, Detective Pina told Mr. Brito that a criminal history search had revealed that Mr. Brito had serious prior charges, including robberies. Mr. Brito responded, \\\"Look, you know, I had, I had a previous robbery and kidnapping charges. It got dropped down. The victims didn't show up.\\\" Id. Mr. Brito also stated, \\\"[YJou know, I'm not a bad guy. I only robbed drug dealers. I don't rob good people.\\\" Id. at 15. Finally, Mr. Brito explained that the victims had not shown up in the previous robbery case because they were drug dealers.\\nII\\nDISCUSSION\\nMr. Brito seeks to suppress the first and third sets of statements made by Mr. Bri-to. Mr. Brito contends that the first set of statements must be suppressed because it was \\\"elicited from Mr. Brito without a valid waiver of his right to remain silent.\\\" Defendant's Letter Brief (\\\"Def. Br.\\\") at 8. Mr. Brito submits, moreover, that the totality of the circumstances demonstrates that he did not implicitly waive his right to remain silent. Instead, Mr. Brito characterizes the dialogue with Detective Pina as a negotiation of sorts, in which he was seeking additional information prior to deciding whether to waive his rights. Indeed, Mr. Brito notes that the interview ended because of his statement that he \\\"didn't give . up people,\\\" Hr'g Tr. 14, and because he refused to sign the Miranda warning card. With respect to the third set of statements, Mr. Brito contends that they must be suppressed because Detective Pina attempted to solicit incriminating statements from Mr. Brito after Mr. Brito had invoked his right to remain silent by refusing to continue with the interview or to cooperate.\\nThe Government believes that Mr. Brito implicitly waived his Miranda rights by not invoking his rights and by voluntarily speaking to the detectives. After being asked whether he wanted to cooperate, Mr. Brito did not invoke his right to remain silent, but instead asked what the charges against him were and then asked Detective Pina whether the charges against him would change after the drugs were analyzed. The Government also submits that Mr. Brito's statements were not the product of interrogation; it argues that all of the statements were made voluntarily and not in response to express questioning \\\"or its functional equivalent.\\\" See generally Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The Court shall address each of these arguments after setting forth the relevant legal background.\\nA. Governing Legal Principles\\nBecause there is no dispute that Mr. Brito was in custody, that he was read his Miranda rights, or that he understood those rights, the Court begins its discussion with the principles governing waiver. Generally, waiver is defined as \\\"an intentional relinquishment or abandonment of a known right or privilege.\\\" Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). \\\"[T]he relinquishment of the right,\\\" the Supreme Court of the United States has explained, \\\"must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.\\\" Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Once a suspect is informed of his Miranda rights, he may waive those rights either expressly or implicitly. North Carolina v. Butler, 441 U.S. 369, 375-76, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (\\\"[A]n explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to remain silent or the right to counsel guaranteed by the Miranda case.\\\"); United States v. Scarpa, 897 F.2d 63, 68 (2d Cir.1990) (\\\"In at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.\\\" (internal quotation marks and citations omitted)). Whether a suspect has implicitly waived his Miranda rights is determined on a case-by-case basis from the totality of the circumstances. Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979); United States v. Gaines, 295 F.3d 293, 297-98 (2d Cir.2002). Ultimately, the Government bears the burden of proving \\\"by a preponderance of the evidence that the defendant relinquished his rights voluntarily with a full awareness of the rights being waived and the consequences of doing so.\\\" Gaines, 295 F.3d at 298. With these principles in mind, the Court turns to the first set of statements made by Mr. Brito.\\nB. Mr. Brito's Motion to Suppress Statements\\n1. First Set of Statements\\nAny analysis of waiver in this case must begin with the observation that the parties do not dispute that Mr. Brito was informed of, and understood, the Miranda warnings that Detective Pina read to him. Indeed, Detective Pina, after reading each of the five Miranda rights individually, stopped to ask Mr. Brito whether he understood each particular right, and Mr. Brito answered \\\"yes\\\" each time. After Mr. Brito indicated that he understood the final right, Detective Pina asked him (for the first time) whether he wanted to cooperate in the investigation.\\nMr. Brito's response is notable, both for what it communicated and for what it did not communicate. Upon hearing Detective Pina's question, Mr. Brito did not remain silent or indicate that he wanted to exercise his right to remain silent or his right to have an attorney present. Rather, Mr. Brito inquired as to the charges against him, thus suggesting that he wanted to engage Detective Pina in a colloquy about his case. Detective Pina told him that he was being charged with delivering three kilograms of cocaine to an undercover officer. Again, Mr. Brito's response is notable both for what it communicated and for what it did not communicate. Once again, Mr. Brito did not choose to remain silent or indicate that he wanted to exercise any of the rights of which he had just been informed. Mr. Brito asked, \\\"[W]ell, that's now, but how about after the drugs are analyzed?\\\" Id. Assessed in the best light to Mr. Brito, his statement suggests that he was willing to discuss with Detective Pina the evidence involved in the investigation; a more realistic assessment is that Mr. Brito thought that he had somehow outwitted law enforcement authorities. Either way, his response to Detective Pina, contrary to Mr. Brito's contention, does not suggest that Mr. Brito was attempting to solicit \\\"additional information prior to deciding whether to waive his rights.\\\" Def. Letter Br. at 9. Mr. Brito's conduct until this point demonstrates that he was choosing not to exercise any of his Miranda rights but was willing to engage Detective Pina in a dialogue about the investigation. See United States v. Dosanjh, No. 08 Cr. 211, 2008 WL 5209991, at *5 (S.D.N.Y. Dec. 11, 2008) (finding implied waiver where the \\\"[defendant understood her rights, but nevertheless responded to [the officer's] comments and questions\\\"). Indeed, after Detective Pina informed Mr. Brito that Mr. Brito would \\\"still . get charged with at least two kilograms of cocaine\\\" by the federal authorities, Mr. Brito remarked that he knew the federal system and that his \\\"attorneys w[ould] take care\\\" of the case. Id. It was only after engaging in the foregoing eolio- quy with Detective Pina and after Detective Pina asked him a second time to cooperate did Mr. Brito state that he would not cooperate with the investigation.\\nAll of Mr. Brito's actions and words up to this point indicate that his statements were voluntary \\u2014 that is, \\\"the product of a free and deliberate choice rather than intimidation, coercion, or deception.\\\" Burbine, 475 U.S. at 421, 106 S.Ct. 1135; see also Scarpa, 897 F.2d at 68 (\\\"In at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.\\\" (internal quotation marks and citations omitted)). Mr. Brito's actions and words do not suggest any hesitation about speaking to Detective Pina or any desire to invoke his right to remain silent. See United States v. Montana, 958 F.2d 516, 519 (2d Cir.1992) (noting that the suspect \\\"had indicated his willingness to be interviewed by initiating the conversation\\\"). Nor was Detective Pina questioning Mr. Brito in an aggressive or coercive manner \\u2014 he merely asked Mr. Brito whether Mr. Brito wanted to cooperate and answered Mr. Brito's questions. See Dosanjh, 2008 WL 5209991, at *5 (noting that officers were not aggressive in questioning in finding an implied waiver). The Court therefore holds that the Government has met its burden of establishing beyond a preponderance of the evidence that Mr. Brito implicitly waived his right to remain silent for purposes of the first set of statements. Consequently, these statements will not be suppressed, and the Court turns to the third set of statements made by Mr. Brito.\\n2. Third Set of Statements\\nThe Court believes that Mr. Brito did not implicitly waive his Miranda rights for purposes of the third set of statements. These statements were made directly in response to Detective Pina's comments to Mr. Brito regarding Mr. Brito's prior criminal history. Prior to Detective Pina's comments, however, Mr. Brito had indicated that he would not cooperate with the investigation and also had categorically refused to sign the Miranda warning card. Following this conduct, Detective Pina ended the interview, thus indicating that Detective Pina sensed that Mr. Brito was not willing to talk further. Although a refusal to cooperate does not necessarily entail a refusal to talk, Mr. Brito's comment to Deoleo while Deoleo was being escorted back to an interview room is probative of Mr. Brito's state of mind. Mr. Brito shouted to Deoleo, \\\"Don't say anything to them. My attorneys will take care of us.\\\" Hr'g Tr. at 14. Accordingly, by the time that Detective Pina made the comments to Mr. Brito regarding his criminal history, Mr. Brito had indicated that he was unwilling to cooperate in the investigation, refused to sign the Miranda waiver card, and directed Deoleo to exercise his right to remain silent. Given Mr. Brito's words and conduct preceding the third set of statements and given that the Government bears the burden of establishing waiver, the Court cannot find that Mr. Brito's waived his right to remain silent for purposes of these statements.\\nThe Government contends that Mr. Brito's statements were not the product of interrogation but rather were voluntary. In Rhode Island v. Innis, the Supreme Court defined \\\"interrogation,\\\" for purposes of Miranda, as \\\"express questioning or its functional equivalent.\\\" 446 U.S. at 301, 100 S.Ct. 1682. The functional equivalent of express questioning, the Court explained, is \\\"any words or actions on the part of the police . that the police should know are reasonably likely, to elicit an incriminating response from the suspect.\\\" Id.; see also Daniel v. Conway, 498 F.Supp.2d 673, 680 (S.D.N.Y.2007) (ex plaining that \\\"[a]n incriminating response is any response that the prosecutor may seek to introduce at trial, whether inculpa-tory or exculpatory\\\"). In this case, Detective Pina told Mr. Brito that a criminal history search had revealed that Mr. Brito had a serious criminal history, including a robbery charge. Plainly, Detective Pina intended his comment about Mr. Brito's criminal history to elicit a response or cooperation from Mr. Brito after Mr. Brito already had indicated that he was unwilling to cooperate further.\\nIn this regard, the cases on which the Government relies are distinguishable. In each of those cases, the courts determined that the suspect had not been subjected to interrogation because it was the suspect himself who, unprompted, had initiated the conversation. See United States v. Cota, 953 F.2d 753, 759 (2d Cir.1992) (\\\"Cota's subsequent statements in the car on the way to arraignment were also not the product of custodial interrogation. Nor were they solicited in any way. As [the agent] testified at trial, Cota as the one to initiate the discussion . \\\"); United States v. Guido, 704 F.2d 675, 677 (2d Cir.1983) (\\\"Guido's statement was not the product of interrogation. While the agents did suggest that Guido cooperate in the investigation, they apparently also told him he should discuss this possibility with his attorney, and they indicated that Guido would not be questioned about the case at this time. There is no indication that the agents' conduct was designed to elicit an incriminating response.\\\" (internal quotation marks and citation omitted) (emphasis added)); United States v. Annucci, 2007 WL 1310156, at *5 (S.D.N.Y. May 3, 2007) (\\\"The conversation that preceded Defendant's incriminating statement was initiated by the Defendant himself.\\\"). Here, Detective Pina initiated the conversation about Mr. Brito's criminal history, presumably in an effort to change tactics and persuade Mr. Brito that it was in his interest to cooperate in light of his serious prior charges, given that Mr. Brito already had indicated that he did not want to cooperate. Consequently, the Court concludes that Mr. Brito was interrogated for purposes of Miranda, and therefore Mr. Bri-to's third set of statements shall not be suppressed.\\nC. Discovery Requests\\nThe Court denies Mr. Brito's request for an order requiring the Government to disclose forthwith Brady, Giglio, and Rule 16 discovery as well as early disclosure of Rule 404(b) evidence. The Government has represented to the Court that it has complied, and will continue to comply, with its Brady obligations and that it will turn over Giglio and Jencks Act, 18 U.S.C. \\u00a7 3500, materials in time for effective use. See In re United States v. Coppa, 267 F.3d 132, 147 (2d Cir.2001) (\\\"We reiterate the longstanding constitutional principle that as long as a defendant possesses Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner.\\\"); United States v. Trippe, 171 F.Supp.2d 230, 237-38 (S.D.N.Y.2001) (\\\"The usual practice in this district is that the Government agrees to make impeachment infor mation available to the defense at the same time as Jencks Act Material, that is, at least one day before the Government witness is called to testify.\\\"). Finally, the Government has indicated that it will make the required disclosure two weeks prior to trial, a practice that typically comports with Rule 404(b). See United States v. Fennell, 496 F.Supp.2d 279, 284 (S.D.N.Y.2007).\\nConclusion\\nFor the foregoing reasons, the Court grants in part and denies in part Mr. Brito's motion to suppress. The Clerk of the Court is directed to close docket entry number 17.\\nIt is so ordered.\\n. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).\\n. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).\\n. At the hearing, Detective Pina testified that, prior to the interview of Mr. Brito, Detective Lieutenant Kevin Tigue of the Narcotics Unit had told him that only two of the three kilograms had testified positive for cocaine and that the third kilogram was a \\\"sham.\\\" Id. at 13.\\n. Mr. Brito concedes that the second statement \\u2014 Mr. Brito's instruction to Deoleo, \\\"Don't say anything to them. My attorneys will take care of us,\\\" Hr'g Tr. 14 \\u2014 was a spontaneous statement that was not precipitated in any way by law enforcement personnel.\\n. Included in the first set of statements are Mr. Brito's inquiry about the charges against him, his statement, \\\"[W]ell, that's now, but how about after the drugs are analyzed,\\\" and his statement, \\\"[FJederal, I know the federal system. My attorneys will take care of this.\\\" Hr'g Tr. 12-14.\\n. Included in the third set of statements are the following statements: \\\"Look, you know, I had, I had a previous robbery and kidnapping charges. It got dropped down. The victims didn't show up\\\"; \\\"[YJou know, I'm not a bad guy. I only robbed drug dealers. I don't rob good people\\\"; and Mr. Brito's admission that the victims had not shown up in the previous robbery case because they were drug dealers. Hr'g Tr. 14-15.\\n. Although the Detective Pina testified that his conversation with Mr. Brito about Mr. Brito's prior criminal history was \\\"just a comment,\\\" Hr'g Tr. at 25-26, the Court finds from the totality of Detective Pina's testimony that Detective Pina's purpose in initiating this conversation with Mr. Brito, after Mr. Brito had already refused to cooperate or talk further, was to elicit a response or cooperation from Mr. Brito. Indeed, Detective Pina testified that the sole reason that he was at the Yonkers Police Department headquarters was \\\"for the purpose of interrog\\u00e1ting\\\" Mr. Brito, Deo-leo, and Anderson. Id. at 19.\"}"
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+"{\"id\": \"3713673\", \"name\": \"Rodney STICH, Plaintiff, v. UNITED STATES of America, et al., Defendants\", \"name_abbreviation\": \"Stich v. United States\", \"decision_date\": \"1991-09-23\", \"docket_number\": \"Civ. A. No. 91-1432\", \"first_page\": \"469\", \"last_page\": \"472\", \"citations\": \"773 F. Supp. 469\", \"volume\": \"773\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the District of Columbia\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:53:14.994192+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Rodney STICH, Plaintiff, v. UNITED STATES of America, et al., Defendants.\", \"head_matter\": \"Rodney STICH, Plaintiff, v. UNITED STATES of America, et al., Defendants.\\nCiv. A. No. 91-1432.\\nUnited States District Court, District of Columbia.\\nSept. 23, 1991.\\nRodney Stich, pro se.\\nWilliam J. Dempster, Asst. U.S. Atty., Washington, D.C., for the U.S.\", \"word_count\": \"1215\", \"char_count\": \"7362\", \"text\": \"MEMORANDUM OPINION\\nSPORKIN, District Judge.\\nPlaintiff in this case is nothing if not a regular customer of the Federal court system. He is best called a \\\"serial litigator.\\\" In the past three years he has filed over thirty pro se actions. Between 1984 and 1987 he filed at least seventeen suits and appeals in Federal court against his ex-wife, her attorneys, and the state and federal judges who had earlier ruled against him. He has been convicted of criminal contempt for violating a 1986 order by United States District Court Judge Milton Swartz. In the past four years, he has filed fifteen cases with this District Court and eight appeals in the court of appeals for this circuit.\\nJust three months ago, in June of this year, Judge Hogan dismissed with prejudice a complaint that made allegations of a secret scheme to continue the imprisonment of the 52 American hostages in Iran. Two weeks before that case was summarily dismissed by Judge Hogan plaintiff filed a virtually identical complaint. In over fifty rambling pages of often unintelligible claims, plaintiff alleges, \\\"Smoking-gun evidence of the conspiracy defrauding the United States, through a scheme to deplete United States and NATO military supplies to delay the release of the American hostages by Iran.\\\" He claims there were \\\"possible/probable\\\" assassinations associated with this plot. He then alleges widespread federal crimes and corruption in the Justice Department and the federal judiciary. He makes claims under a laundry list of federal statutes and constitutional provisions.\\nPlaintiff has shown an appalling lack of respect for the judicial branch by again bringing what appears to be the identical complaint not once but twice to this same Court. The defendants in this action have moved for a vexatious litigant order. In view of plaintiffs pattern of activity over the past years and especially over the past few months, this Court deems it appropriate to grant defendants' motion.\\nThere is precedent for the entry of such an order in this circuit and in other circuits. The court of appeals for this circuit has affirmed injunctions restricting the ability of pro se plaintiffs to bring cases. See In re Powell, 851 F.2d 427 (D.C.Cir.1985); Martin-Trigona v. United States, 779 F.2d 72 (D.C.Cir.1985); Urban v. United Nations, 768 F.2d 1497 (D.C.Cir.1985). The second circuit explained why such orders are necessary when it wrote, \\\"Federal courts have both the inherent power and the constitutional obligation to protect their jurisdiction from conduct which impairs their ability to carry out Article III functions. In re Martin-Trigona, 737 F.2d 1254, 1261-1 (2d Cir.1984), cert. denied, 474 U.S. 1061, 106 S.Ct. 807, 88 L.Ed.2d 782 (1986).\\nIn the Martin-Trigona case, another vexatious litigant had plagued the district court of Connecticut and the second circuit with volumes of litigation. In upholding the district court's injunction, the second circuit wrote, \\\"If such power [to protect Article III jurisdiction] did not exist, or if its exercise were somehow dependent upon the actions of another branch of government or upon the entitlement of a private party to injunctive relief, the independence and constitutional role of Article III courts would be endangered.\\\" Martin-Trigona, 737 F.2d at 1261.\\nIn Procup v. Strickland, 792 F.2d 1069 (11th Cir.1986), the eleventh circuit echoed these reasons when it held that the district court has authority to restrict a litigant's ability to bring law suits. In that case, the appellant had filed over 175 lawsuits in a single judicial district. This behavior consumed large amounts of court time, for, as the court said, \\\"Every lawsuit filed, no matter how frivolous or repetitious, requires the investment of court time, whether the complaint is reviewed initially by a law clerk, a staff attorney, a magistrate, or the judge.\\\" 792 F.2d at 1072.\\nNo matter how plagued the court might feel by the filing of numerous frivolous lawsuits by Mr. Stich, it would not issue an injunction restricting the filing of suits without a carefully reasoned basis for doing so. The court takes note of the opinion in In re Powell, 851 F.2d 427 (D.C.Cir.1988) where the court of appeals found that such injunctions should only be issued in \\\"exigent circumstances\\\" and as an exception and not a regular practice. This Court has found that Mr. Stich's actions are frivolous and constitute outrageous harassment of the named defendants. Mr. Stich has demonstrated that he lacks the ability to discern those matters which genuinely demand judicial attention from those so frivolous or duplicative as to be a hindrance to the court. Mr. Stich has not filed a single lawsuit in the past three years with merit. He has clearly abused the system, and while he cannot be precluded from filing any future suits, he will be required to obtain leave of court before doing so. Accordingly, it is necessary that Mr. Stich obtain leave of court before filing any more suits pro se.\\nORDER\\nUpon consideration of the motion for an all encompassing vexatious litigant order filed on behalf of defendants Thornburgh, United States District Courts, United States Court of Appeals, and the United States and the entire record therein, it is this 20th day of September, 1991, hereby\\nORDERED that defendants' motion is granted; and it is\\nFURTHER ORDERED that both cases be dismissed with prejudice; and it is\\nFURTHER ORDERED that plaintiff shall seek leave of this Court before filing any new civil action; that he shall certify that any such complaint raises new matters not pending before or decided on the merits by any federal court or if the suit raises issues that have been adjudicated or are otherwise pending, he- must explain to the court why he intends to file another duplicative action; and that he shall truthfully so certify any complaint on pain of penalty of contempt of this Court.\\nAPPENDIX A\\nCases Filed By Pro Se Plaintiff Rodney Stich in United States District Court for the District of Columbia\\nDocket No. Case Name\\n1. 87-2214 Stich v. United States of America\\n2. 89-0170 Stich v. Kennedy\\n3. 89-0470 Stich v. Rehnquist\\n4. 89-1908 Stich v. United States of America\\n5. 89-2060 Stich v. United States of America\\n6. 89-2290 Stich v. United States of America\\n7. 89-2940 Stich v. Lynch\\n8. 89-2941 Stich v. Rehnquist\\n9. 89-2973 Stich v. Thornburgh\\n10. 89-2974 Stich v. United States of America\\n11. 89-3350 Stich v. Thornburgh\\n12. 91-1242 Stich v. United States of America\\nDocket No. Case Name\\n13. 91-1432 Stich v. United States of America\\n14. 91-2143 Stich v. United States of America\\n15. 91-2281 Stich v. United States of America\\nAPPENDIX B\\nAppeals Filed by Pro Se Appellant Rodney Stich in the United States Court of Appeals for the District of Columbia Circuit\\nCase Name Case No,\\n1. 87-5262 Stich v. Department of Justice\\n2. 89-5163 Stich v. Kennedy\\n3. 90-5045 Stich v. Thornburgh\\n4. 90-5046 Stich v. Bush\\n5. 90-5047 Stich v. United States of America\\n6. 90-5048 Stich v. Rehnquist\\n7. 90-5049 Stich v. Lynch\\n8. 91-5234 Stich v. United States of America\\n. See Appendix A.\\n. See Appendix B.\"}"
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+"{\"id\": \"3716993\", \"name\": \"NAUTILUS INSURANCE COMPANY, Plaintiff, v. NICKY & CLAIRE'S DAY CARE, INC., et al., Defendants\", \"name_abbreviation\": \"Nautilus Insurance v. Nicky & Claire's Day Care, Inc.\", \"decision_date\": \"2009-02-26\", \"docket_number\": \"No. EP-08-CV-297-DB\", \"first_page\": \"727\", \"last_page\": \"741\", \"citations\": \"630 F. Supp. 2d 727\", \"volume\": \"630\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States District Court for the Western District of Texas\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T20:45:16.089545+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"NAUTILUS INSURANCE COMPANY, Plaintiff, v. NICKY & CLAIRE\\u2019S DAY CARE, INC., et al., Defendants.\", \"head_matter\": \"NAUTILUS INSURANCE COMPANY, Plaintiff, v. NICKY & CLAIRE\\u2019S DAY CARE, INC., et al., Defendants.\\nNo. EP-08-CV-297-DB.\\nUnited States District Court, W.D. Texas, El Paso Division.\\nFeb. 26, 2009.\\nJohn C. Tollefson, Stephen Andrew Melendi, Tollefson Bradley Ball & Mitchell, LLP, Dallas, TX, for Plaintiff.\\nDuane A. Baker, Attorney at Law, J. Roberto Oaxaca, Oaxaca, Bernal & Associates, Richard S. Feldman, Mounce, Green, Myers, Safi & Galatzan, P.C., Alejandro Duran, Jr., James F. Scherr, El Paso, TX, James F. Scherr, Robin Kennedy Johnston, Hermes Sargent Bates L.L.P., Dallas, TX, Lawrence A. Levy, Richard S. Feldman, Rivkin Radler, LLP, Uniondale, NY, for Defendants.\\nOscar Bustamante, El Paso, TX, pro se.\", \"word_count\": \"6344\", \"char_count\": \"40348\", \"text\": \"MEMORANDUM OPINION AND ORDER\\nDAVID BRIONES, District Judge.\\nOn this day the Court considered Plaintiff Nautilus Insurance Company's (\\\"Nautilus\\\") \\\"Motion For Summary Judgment,\\\" filed in the above-captioned cause on October 21, 2008. Defendant Jessica Reyes (\\\"Reyes\\\") and Defendant Fireman's Fund County Mutual Insurance Company (\\\"Fireman's Fund\\\") filed separate Responses on October 28, 2008, and November 3, 2008, respectively. On November 5, 2008, Nautilus filed its Reply. Subsequently, Reyes filed a \\\"Motion For Continuance Of Plaintiffs Motion For Summary Judgment,\\\" which the Court granted on December 1, 2008. After due consideration, the Court is of the opinion that the Court's Order of December 1, 2008, granting a continuance of Nautilus' Motion, be vacated and that Nautilus' Motion be granted for the reasons that follow.\\nBACKGROUND\\nThis case arises from a collision on November 4, 2005, involving a vehicle owned by Nicky & Claire's Daycare, Inc. (\\\"Nicky & Claire's\\\"). Nautilus issued a general liability insurance policy, policy number NC388404 with effective dates of December 6, 2004, through December 6, 2005, to Nicky & Claire's (\\\"the Policy\\\"). The Policy includes an \\\"auto exclusion,\\\" stating that the Policy does not cover \\\" 'bodily injury' or 'property damage' arising out of the ownership, maintenance, use or entrustment to others of any . 'auto' . that is owned or operated by . any insured.\\\"\\nAt the time of the collision, E.T. was allegedly in Nicky & Claire's' vehicle and, as a result, suffered injuries. Reyes, who enters this action individually and as next of friend of E.T., and Defendant Erika Marquez (\\\"Marquez\\\"), who alleges she was struck by Nicky & Claire's' vehicle during the collision, brought suit against Nicky & Claire's, Nautilus, and others in the 34th Judicial District Court of El Paso County, Texas (\\\"state court\\\"). Specifically, Reyes alleges in her state action pleading that on or about November 4, 2005, Brenda Sulema (\\\"Sulema\\\"), in the course and scope of her employment with Nicky & Claire's, was driving Nicky & Claire's' vehicle in which E.T., age five (5), was a passenger without child protective seating. Sulema was traveling westbound on Pershing in El Paso, Texas, when another vehicle, traveling northbound on Birch, failed to yield the right of way, thus colliding with Nicky & Claire's' vehicle. In Marquez's state action pleading, Marquez alleges that she was standing behind her vehicle when Sulema's vehicle, after being struck, slid sideways and collided with Marquez, crushing her between her vehicle and another parked vehicle.\\nIn the state action, Reyes and Marquez assert various tort claims based on alternative theories of negligence against certain state action defendants. Reyes and Marquez allege that Sulema was negligent in her driving as well as in failing to secure E.T. in a child protective seat. They further allege that Nicky & Claire's was negligent for failing to operate safe equipment and failing to properly hire, train, educate, and supervise its drivers. Reyes' and Marquez's state action pleadings also include declaratory judgment actions against Nautilus and Fireman's Fund. Specifically, Reyes sought a declaration from state court that Nautilus and/or Fireman's Fund must provide coverage as required by Texas law for Nicky & Claire's' alleged negligence in the instant collision. Nautilus moved for the state court to dismiss all claims against Nautilus, arguing that Reyes has no rights to assert against Nautilus as a judgment has not yet been entered against the insured, Nicky & Claire's. On December 29, 2008, the state court granted Nautilus's Motion to Dismiss, dismissing all claims against Nautilus in the state action without prejudice.\\nOn August 1, 2008, Nautilus filed a Complaint in federal court seeking a declaratory judgment to determine whether Nautilus has a duty to defend and/or indemnify Defendants Nicky & Claire's and Oscar Bustamante (\\\"Bustamante\\\"), the owner and registered agent for Nicky & Claire's. The instant Motion followed.\\nSTANDARD\\nSummary judgment should be granted only where \\\"the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.\\\" Fed.R.CivP. 56(c). A material fact is one that \\\"might affect the outcome of the suit under the governing law....\\\" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is inappropriate where a material fact is \\\"genuine\\\" in that a reasonable jury could return a verdict for the nonmoving party. Id. Thus, the Court considers all the evidence in the record, but makes no determination as to credibility of the evidence. See id. Further, the Court views factual questions and inferences in a light most favorable to the nonmovant. Calbillo v. Calender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir.2002).\\nThe moving party bears the initial burden of identifying those portions of the pleadings, the discovery, and the disclosure materials on file which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). \\\"If the moving party-fails to meet this burden, the motion must be denied, regardless of the nonmovant's response.\\\" Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir.1995). If the movant meets this burden, however, the nonmovant must designate specific facts showing that a genuine issue for trial exists. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The nonmovant discharges this burden by alleging more than mere legal conclusions drawn from the pleadings. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (stating the nonmovant may not successfully oppose summary judgment by merely citing the pleadings). Instead, the nonmovant must present affirmative evidence to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 257, 106 S.Ct. 2505. If the nonmovant fails to make a sufficient showing on an essential element of his case, the movant is entitled to summary judgment, \\\"since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.\\\" Celotex, 477 U.S. at 323, 106 S.Ct. 2548.\\nDISCUSSION\\nIn the instant Motion, Nautilus argues that no genuine issue as to any material fact exists and prays that the Court enter a declaratory judgment that Nautilus does not have a duty to defend or indemnify Nicky & Claire's and Bustamante for injuries arising from the collision. In her Response, Reyes asserts as genuine issues of material fact whether Nautilus knew that Nicky & Claire's was purchasing the Policy in order to comply with section 42.049 of the Texas Human Resources Code (\\\"section 42.049\\\") and whether Nautilus issued a Certificate of Insurance declaring that the Policy complied with section 42.049. As support for these assertions, Reyes introduced an admission by Nicky & Claire's that Nicky & Claire's procured the Policy in order to comply with section 42.049, which requires a child-care center to carry insurance sufficient to cover $300,000 for each occurrence of negligence. See Tex. Hum. Res.Code Ann. \\u00a7 42.049(b) (Vernon 2008). Additionally, Reyes argues that Nautilus' Motion for Summary Judgment fails as a matter of law. First, Reyes asserts that the Policy's auto exclusion is void as contrary to public policy and that Nautilus thus has a duty to defend or indemnify Nicky & Claire's and Bustamante. Second, Reyes argues that Nautilus incurred said duty because Nicky & Claire's allegedly violated section 746.5607 of the Texas Administrative Code by not providing E.T. with protective seating. In its Response, Fireman's Fund agrees with Nautilus that Nicky & Claire's' failure to comply with section 42.049 does not affect Nautilus' duty. Additionally, Fireman's Fund clarifies that Nautilus does not seek a declaratory judgment with regard to Fireman's Fund's duty to Nicky & Claire's and Bustamante and argues that Nautilus cannot recover attorneys' fees and court costs by succeeding in its declaratory judgment action.\\nFor the purposes of deciding the Motion for Summary Judgment, the Court must view factual questions and inferences in a light most favorable to Reyes and her co-Defendants. See Calbillo, 288 F.3d at 725. Accordingly, the Court assumes that Nautilus provided a Certificate of Insurance to the State of Texas stating that the Policy met Nicky & Claire's' statutory obligations, that Nautilus knew of those obligations before issuing the Policy, that Nautilus knew Nicky & Claire's purchased the Policy with the intent of fulfilling those obligations, and that Nicky & Claire's failed to provide proper protective seating for E.T. The Parties do not contest that Texas law applies to this diversity action.\\nUnder Texas law, when an insured is sued by a third party, a liability insurer's duty to defend is determined by comparing the facts alleged in the third party's petition against the policy terms. Mid-Continent Casualty Co. v. JHP Dev., Inc., 557 F.3d 207, 212-13 (5th Cir.2009) (applying Texas law); Northfield Ins. Co. v. Loving Home Care, Inc., 363 F.3d 523, 531 (5th Cir.2004) (applying Texas law). According to this \\\"eight-corners rule,\\\" \\\"[r]e-sort to evidence outside the four corners of these two documents is generally prohibited.\\\" JHP Dev., Inc., 557 F.3d at 212. Thus, an insurer incurs a duty to defend not based on the truth or falsity of the allegations, but whenever \\\"a plaintiffs factual allegations . potentially support a covered claim.\\\" Id.\\nThe duty to defend is broader than the duty to indemnify. Id. An insurer incurs the duty to indemnify based on the facts actually established in the underlying suit. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 821 (Tex.1997). While the \\\"duty to indemnify is generally not ascertainable until after the insured has been held liable, it is justiciable prior to a finding of liability when the same reasons negating the duty to defend also negate any duty to indemnify.\\\" Lincoln Gen. Ins. Co. v. Aisha's Learning Ctr., 468 F.3d 857, 858-59 (5th Cir.2006) (applying Texas law). Accordingly, the court may enter a judgment that the insurer has no duty to indemnify if the insurer has no duty to defend. W. Heritage Ins. Co. v. River Entm't, 998 F.2d 311, 315 (5th Cir.1993) (applying Texas law); Farmers Tex. County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 84 (Tex.1997).\\nTo determine Nautilus' duty to defend or indemnify, the Court must preliminarily consider whether Nautilus' knowledge that Nicky & Claire's was purchasing the Policy to comply with section 42.049 and whether Nautilus' possible issuance of a Certificate of Insurance declaring that the Policy complied with section 42.049 are genuine material facts. The Court does so by interpreting the Policy to decide whether such extrinsic evidence is material. If the Court finds that the extrinsic evidence is not material, then the Court may address' the underlying legal issues. First, the Court examines Reyes' argument that the Policy's auto exclusion is void under public policy. Second, the Court considers Nautilus' argument that the Policy does not provide coverage for the facts alleged in Reyes' and Marquez's state court pleadings and that Nautilus therefore has no duty to defend or indemnify Nicky & Claire's and Bustamante. Third, the Court entertains Reyes' argument that Nautilus has a duty to defend and indemnify due to Nicky & Claire's failure to provide proper protective seating for E.T. Finally, the Court addresses Fireman's Fund's argument that Nautilus cannot receive attorney's fees and court costs.\\nA. Policy interpretation\\nPreliminarily, the Court must interpret the Policy and determine whether Reyes has presented a genuine issue of material fact that must be reserved for trial. Under Texas law, \\\"[insurance policies are controlled by rules of interpretation and construction which are applicable to contracts generally.\\\" Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). Courts must interpret policies \\\"to ascertain the true intent of the parties as expressed in the instrument.\\\" Id. A policy is unambiguous when a court can give it definite or certain legal meaning. Id. \\\"Parol evidence is not admissible for the purpose of creating an ambiguity.\\\" Id. Rather, a court must first determine whether the contract is ambiguous before considering the parties' interpretation and admitting extraneous evidence. Id.\\nAn ambiguity in a contract can either be \\\"patent\\\" or \\\"latent.\\\" Id. \\\"A patent ambiguity is evident on the face of the contract.\\\" Id. If the ambiguity only arises when a contract is applied to the subject matter with which it deals by reason of some collateral matter, the contract is latently ambiguous. Id. If a latent ambiguity arises from the application of the contract, then the court can admit parol evidence to ascertain the true intention of the parties as expressed in the agreement. Id.; Murphy v. Dilworth, 137 Tex. 32, 36, 151 S.W.2d 1004 (Tex.1941). However, \\\"[t]he ambiguity must become evident when the contract is read in context of the surrounding circumstances, not after parol evidence of intent is admitted to create an ambiguity.\\\" CBI Indus., Inc., 907 S.W.2d at 521. In short, extrinsic evidence may be admissible only \\\"to give the words of a contract a meaning consistent with that to which they are reasonably susceptible.\\\" Id. \\\"If the contract language is not fairly susceptible of more than one legal meaning or construction, however, extrinsic evidence is inadmissible to contradict or vary the meaning of the explicit language of the parties' written agreement.\\\" Id.\\nHere, the Policy is clear on its face. Reyes does not argue otherwise. First, the Policy contains a merger clause that the Policy \\\"contains all the agreements between [Nicky & Claire's and Bustamante] and [Nautilus] concerning the insurance afforded.\\\" Second, the language of the auto exclusion is clear. Under the \\\"Exclusions\\\" section of the Commercial General Liability Coverage Form, the Policy states:\\nThis insurance does not apply to: .\\n(g) Aircraft, Auto Or Watercraft\\n'Bodily injury or 'property damage' arising out of the ownership, maintenance, use or entrustment to others of any aircraft, 'auto' or watercraft owned or operated by or rented or loaned to any insured.....\\nThis exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the 'occurrence' which caused the 'bodily injury' of 'property damage' involved the ownership, maintenance, use or entrustment to others of any aircraft, 'auto' or watercraft that is owned or operated by or rented or loaned to any insured.\\nIn applying the Policy with the auto exclusion to the facts alleged in Reyes' and Marquez's state action pleadings, no latent ambiguity arises that necessitates the introduction of extrinsic evidence to determine the intent of Nautilus, Nicky & Claire's, and Bustamante at the time of contract formation. See id. at 520. In short, the Court is able to apply the auto exclusion to the alleged facts and determine whether the Policy covers the collision, as explained in Section C below. Since the Policy unambiguously includes the auto exclusion, the Court cannot consider an extrinsic Certificate of Insurance provided by Nautilus. Likewise, evidence of Nautilus' knowledge of Nicky & Claire's intent to comply with section 42.049 by purchasing the Policy is equally inadmissible. Therefore, Reyes raises no genuine issue of material fact that would affect the outcome of the instant action under the governing law. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505.\\nB. Void for Public Policy\\nAs the Court has found that the Policy includes the auto exclusion, the Court next turns to Reyes' argument that the auto exclusion is void as a matter of public policy. Contractual agreements may be invalidated on grounds of public policy, but this public policy exception is \\\"to be applied cautiously and only in plain cases involving dominant public interests.\\\" Fidelity & Deposit Co. of Md. v. Conner, 973 F.2d 1236, 1241 (5th Cir.1992). Unless the state courts or legislature affirmatively express \\\"an overriding public policy,\\\" a federal court must enforce the contractual agreement according to its plain meaning. Aero Int'l, Inc. v. U.S. Fire Ins. Co., 713 F.2d 1106, 1109 (5th Cir.1983). To determine whether an overriding public policy exists, a court examines whether the statute at issue is regulatory in nature, on whom the statute places the burden for compliance, and whether it expressly states an overriding public policy. See Scottsdale Ins. Co. v. Tex. Sec. Concepts & Investigation, 173 F.3d 941, 943 (5th Cir.1999) (applying Texas law); Nat'l County Mut. Fire Ins. Co. v. Johnson, 879 S.W.2d 1, 2 (Tex.1993); Tri-State Pipe & Equip., Inc. v. S. County Mut. Ins. Co., 8 S.W.3d 394, 399-400 (Tex. Ct. Appeals-Texarkana 1999).\\nReyes argues that the instant case is similar to National County Mutual Fire Insurance Company v. Johnson. In Johnson, the Supreme Court of Texas found a family member exclusion in an auto insurance policy void because it was inconsistent with the public policy underlying the Texas Motor Vehicle Safety-Responsibility Act (\\\"MVSRA\\\"). 879 S.W.2d 1, 2 (Tex.1993). The court found that amendments to the MVSRA to mandate auto liability insurance clearly reflected the legislature's purpose \\\"to protect claimants from losses by requiring all drivers to be responsible for damages arising out of their use of an automobile.\\\" Id. The State Board of Insurance had approved the family member exclusion, but the court held that the exclusion \\\"prevents a specific class of innocent victims, those persons related to and living with the negligent driver, from receiving financial protection under an insurance policy.\\\" Id. at 3. As such, the exclusion was inconsistent with the purposes of MVSRA and thus ineffective. Id.\\nNautilus distinguishes the instant case from Johnson and relies instead on Scottsdale Insurance Company v. Texas Security Concepts and Investigation (\\\"Texas Security \\\"), a decision issued by the United States Court of Appeals for the Fifth Circuit (\\\"Fifth Circuit\\\"). 173 F.3d 941 (5th Cir.1999) (applying Texas law). In Texas Security, Scottsdale Insurance Company (\\\"Scottsdale\\\") contracted with Texas Security, which provided security for an apartment complex, a liability insurance policy with an assault and battery exclusion. Id. at 942. After a Texas Security employee was charged with assaulting and raping two (2) women, Scottsdale sought a declaratory judgment that it had no duty to defend or indemnify Texas Security because of the exclusion. Id. The statute at issue, Texas Revised Civil Statute Art. 4413(29bb), \\u00a7 40(a), regulates the licensing of private security agencies. Id. The statute requires that the licensing board verify that the security agency applying for a license holds a general insurance policy that will cover \\\"all sums which the licensee becomes legally obligated to pay as damages because of bodily injury, property damage, or personal injury, caused by an event involving the principal, its servants, officers, agents or employees in the conduct of any business licensed under this Act.\\\" Tex.Rev.Civ. Stat. Art. 4413(29bb), \\u00a7 40(a) (Vernon 1999). The Fifth Circuit noted that the statutes addresses the security business, not the insurance company. Tex. Sec., 173 F.3d at 943. Additionally, the Fifth Circuit found that the statute \\\"is regulatory in nature and does not affirmatively establish a public policy of the state that would override the parties' agreement.\\\" Id. Thus, the Fifth Circuit held that an assault and battery exclusion was not void for public policy. Id.\\nSimilarly, the Court of Appeals of Texas, Texarkana, held that, despite Johnson, an insured's policy coverage did not automatically increase if a statute enacted later increased the statutorily required minimum insurance. Tri-State Pipe & Equip., Inc., 8 S.W.3d at 396. The court distinguished Texas Security from Johnson, observing that the statute at issue in TriState \\\"expressly permits a driver to satisfy the minimum amounts of financial responsibility with one or more insurance policies.\\\" Id. at 399. Further, the statute seems to place the burden on the insured to secure the required minimum amount of monetary coverage and lacks any language indicating that the insurer has the obligation to provide such coverage. Id. at 399-400. Thus, the court noted that \\\"it is entirely inappropriate and against public policy to place the burden on the insurer to force the insured to purchase a specific amount of insurance.\\\" Id. at 400.\\nIn the instant case, Reyes argues that the auto exclusion in the Policy is void for public policy. Reyes asserts that the Legislature specifically required child-care centers to provide a minimum amount of insurance coverage and that the Policy's auto exclusion, like the family member exclusion in Johnson, improperly attempts to narrow the required coverage. See Johnson, 879 S.W.2d at 3. Reyes further argues that section 42.049 places the burden on Nautilus to provide a Policy that complies with the statute because the insured has little or no bargaining power over the nature and extent of the exclusions. Nautilus replies that the statute governing childcare centers is regulatory in nature and places the burden on Nicky & Claire's\\u2014 not Nautilus \\u2014 to secure the required insurance coverage, and that the statute does not provide a public policy that would override Nautilus and Nicky & Claire's' agreement. The Court finds Reyes' arguments unconvincing.\\nThe statute states its purpose \\\"is to protect the health, safety, and well-being of the children of the state who reside in child-care facilities by establishing statewide minimum standards for their safety and protection and by regulating the facilities through a licensing program.\\\" Tex. Hum. Res.Code Ann. \\u00a7 42.001 (Vernon 2008). Accordingly, in order to operate a child-care facility, a person must have a license issued by the Texas Department of Family and Protective Services (\\\"the Department\\\"). Tex. Hum. Res.Code Ann. \\u00a7 40.001(3), 42.041(a) (Vernon 2008). Section 42.049 of the Human Resources Code requires that a childcare license holder \\\"maintain liability insurance coverage in the amount of $300,00 for each occurrence of negligence\\\" and that the policy \\\"cover injury to a child that occurs while the child is on the premises or in the care of the license holder.\\\" Tex. Hum. Res.Code Ann. \\u00a7 42.049(a). Additionally, section 42.049 requires the license holder to \\\"file with the department a certificate or other evidence from an insurance company showing that the license holder has an unexpired and uncancelled insurance policy or contract that meets the requirements of this section.\\\" Tex. Hum. Res.Code Ann. \\u00a7 42.049(b). Further, the statute provides certain remedies for violations of its provisions, all to be instituted by the Department against the license holder, not against the license holder's insurer. See Tex. Hum. Res.Code Ann. \\u00a7 42.0705-42.078. For example, if a license holder violates Chapter 42 of the Human Resources Code, the Department may reprimand the license holder or revoke or suspend the license. Tex. Hum. Res.Code Ann. \\u00a7 42.0705. The Department may also file suit against the license holder for civil penalties and injunctive relief. Tex. Hum. Res.Code Ann. \\u00a7 42.074-42.075.\\nThus, the statute does not expressly establish a Texas public policy that would override the agreement by Nicky & Claire's and Nautilus as embodied in the Policy. See Texas Security, 173 F.3d at 943. First, the statute at issue regulates child-care facilities. See Tex. Hum. Res. Code Ann. \\u00a7 42.001 et seq. Second, the statute places the burden on the license holder\\u2014Nicky & Claire's \\u2014 to secure the required insurance and provide proof of such insurance to the Department. See Tex. Hum. Res.Code Ann. \\u00a7 42.049. The statute does not require that such insurance be secured in only one (1) policy with one (1) insurance company. See Tri-State Pipe & Equip., Inc., 8 S.W.3d at 399. Nor does the statute expressly require insurers to investigate all of an insured's policies before issuing the insured a policy. Accordingly, a license holder could comply with the statute by securing a general liability policy with an auto exclusion so long as the license holder also procured an auto policy. Indeed, Nicky & Claire's had a separate auto policy provided by Fireman's Fund. Finally, the express purpose of the statute \\u2014 to protect children's well-being and regulate child-care centers\\u2014 does not impose any obligation on the insurers and can still be obtained by a licensed child-care center, provided it procured the correct combination of insurance policies. Given the regulatory nature of the statute, the burden it places on the insured to provide the Department with proof of sufficient insurance, and the absence of an overriding public policy in conflict with the auto exclusion, the Court finds that the Policy's auto exclusion is not void for public policy and that, therefore, Nautilus' Motion for Summary Judgment cannot be denied on those grounds.\\nC. Duty to Defend and Indemnify\\nHaving thus determined that the Policy includes the auto exclusion, the Court now considers Nautilus' argument in favor of summary judgment. Specifically, the Court determines whether the facts alleged in Reyes' and Marquez's state action pleadings are within the scope of the Policy's coverage. See Aisha's Learning Ctr., 468 F.3d at 858. If they are, then Nautilus has a duty to defend Nicky & Claire's. See id. If Nautilus has no duty to defend, then the Court may find that Nautilus has no duty to indemnify because, no matter what facts are established in the underlying suit, Nautilus would have no duty to indemnify. See id. at 858-59; Farmers Tex. County, 955 S.W.2d at 84.\\nAgain, the Policy excludes coverage for \\\" '[b]odily injury' . arising out of the ownership, maintenance, use or entrustment to others of any . 'auto' . owned or operated by or rented or loaned to any insured.\\\" Further, the exclusion also applies to \\\"claims against any insured alleg[ing] negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the 'occurrence' which caused the 'bodily injury'... involved the ownership, maintenance, use or entrustment to others of any . 'auto' . that is owned or operated by . any insured.\\\"\\nUnder Texas law, \\\" '[f]or liability to 'arise out of the use of a motor vehicle, a causal connection or relation must exist between the accident or injury and the use of the motor vehicle.' \\\" Aisha's Learning Ctr., 468 F.3d at 859 (quoting Mid-Century Ins. Co. v. Lindsey, 997 S.W.2d 153, 156 (Tex.1999)). For an injury to fall within the \\\"use\\\" coverage of an automobile policy or an auto exclusion:\\n(1) the accident must have arisen out of the inherent nature of the automobile, as such, (2) the accident must have arisen within the natural territorial limits of an automobile, and the actual use must not have terminated, (3) the automobile must not merely contribute to cause the condition which produces the injury, but must itself produce the injury.\\nLindsey, 997 S.W.2d at 157; see Aisha's Learning Ctr., 468 F.3d at 860 (applying Lindsey factors). Employing this test, the Fifth Circuit found an auto exclusion similar to the instant auto exclusion to preclude coverage of a child's injuries incurred when, after transporting the child to the daycare, the daycare worker left the child in the parked vehicle for several hours. Aisha's Learning Ctr., 468 F.3d at 860-61.\\nIn Reyes' and Marquez's state action pleadings, they allege that a Nicky & Claire's employee, driving a vehicle owned by Nicky & Claire's, collided with another vehicle, causing injuries to Marquez and E.T. E.T. is a child who was entrusted to the care of Nicky & Claire's, was in Nicky & Claire's vehicle, and did not have proper child seat protection. Marquez was standing on the street when she was hit by Nicky & Claire's vehicle. The collision arose out of the inherent nature of the vehicle within its territorial limits, and the vehicle produced the injuries. Clearly, these injuries fall within the Policy's auto exclusion. See Lindsey, 997 S.W.2d at 157. Further, Reyes' and Marquez's allegations of Nicky & Claire's negligent vehicle maintenance and hiring, training, and supervision of drivers are also precluded by the Policy's auto exclusion, as those allegations relate only to use of motor vehicles. Therefore, the Court finds that Nautilus does not have a duty to defend Nicky & Claire's and Bustamante. As the duty to defend is broader than the duty to indemnify, and the Court finds that the facts alleged in the state action are not within the Policy coverage, the Court also finds that Nautilus has no duty to indemnify Nicky & Claire's and Bustamante. Thus, the Court is of the opinion that Nautilus' Motion for Summary Judgment should be granted.\\nD. 40 Texas Administrative Code \\u00a7 746.5607 \\u2014 protective seating\\nNext, the Court considers Reyes' argument that Nautilus has a duty to defend and indemnify Nicky & Claire's and Bustamante because Nicky & Claire's allegedly violated section 746.5607 of the Texas Administrative Code, Title 40. Section 746.5607 requires a child-care center to secure a child in a vehicle with appropriate protective seating according to the manufacturer's instructions and the child's age, height, and weight. 40 Tex. Admin. Code \\u00a7 746.5607. The statute does not state that the child-care center's insurance company has the burden of ensuring that the child-care center provides the appropriate protective seating. Nevertheless, Reyes argues that Nautilus failed to perform its duties to ensure that Nicky & Claire's complied with this Texas law. The Court marvels at the duty this would impose on insurers, to be present every time a child is transported by the childcare center in order to monitor the childcare center's use of proper protective seating. While Nicky & Claire's may have violated section 746.5607 according to Reyes' alleged facts, Nautilus is not liable for such a violation.\\nFurther, such a violation would not alter the Policy interpretation or the Court's eight-corner analysis to determine Nautilus' duty to defend. As explained above, an insurer's duty to defend is determined by comparing the alleged facts to the policy agreement. See Loving Home Care, Inc., 363 F.3d at 531. Under this eight-corner's rule, a court would not consider other violations unless they somehow altered the terms of the policy agreement. Here, the Court already explained that the Policy is clear and that the Court does not consider extrinsic evidence in absence of contractual ambiguities. Therefore, Nicky & Claire's alleged violation of section 746.5607 does not impose on Nautilus a duty to defend or indemnify Nicky & Claire's or Bustamante and is not grounds for denying Nautilus' Motion for Summary Judgment.\\nE. Attorney's fees\\nFinally, the Court addresses Nautilus' ability to obtain attorneys' fees and court costs. While the Federal Declaratory Judgment Act does not independently authorize the award of attorney's fees, the Texas Declaratory Judgement Act does. Compare 28 U.S.C.A. \\u00a7 2202 (West 2006) with Tex. Civ. Prac. & Rem.Code \\u00a7 37.001 et seq. (Vernon 2008). Nevertheless, the Fifth Circuit has held that \\\"the Texas Act is procedural rather than substantive, and therefore it does not authorize an award of costs in a federal court declaratory judgement diversity action.\\\" Travelers Indem. Co. v. Citgo Petroleum Corp., 166 F.3d 761, 772 (5th Cir.1999). The instant case is a declaratory judgment action in federal court based on 28 U.S.C. \\u00a7 1332 diversity jurisdiction. Accordingly, the Court finds that Nautilus cannot receive an award of costs.\\nCONCLUSION\\nAfter due consideration, the Court finds that the pleadings and affidavits do not show that there is any genuine issue as to any material fact and that Nautilus does not have a duty to defend or indemnify Nicky & Claire's and Bustamante. The Policy unambiguously includes an auto exclusion, which is not void for public policy. The statute in question is regulatory in nature, imposes the duty of compliance on the license holder \\u2014 not the insurer, and does not express an overriding public policy that would negate Nautilus' and Nicky & Claire's' express agreement as embodied in the Policy. Further, Nicky & Claire's' alleged violation of section 746.5607 does not alter Nautilus' lack of duty to defend under the eight-corners rule. Thus, since the Policy does not provide coverage for the facts alleged in the state court action, Nautilus does not have a duty to defend Nicky & Claire's and Bustamante. As such, Nautilus similarly does not have a duty to indemnify Nicky & Claire's and Bustamante. Therefore, the Court is of the opinion that the Court's Order of December 1, 2008, continuing Nautilus' Motion for Summary Judgment, be vacated and that Nautilus' Motion for Summary Judgment be granted.\\nAccordingly, IT IS HEREBY ORDERED that the Court's Order of December 1, 2008, continuing Plaintiff Nautilus Insurance Company's \\\"Motion for Summary Judgment\\\" is VACATED.\\nIT IS FURTHER ORDERED that Plaintiff Nautilus Insurance Company's \\\"Motion For Summary Judgment\\\" is GRANTED.\\nIT IS FINALLY ORDERED that Plaintiff Nautilus Insurance Company's request for attorney's fees and costs of court is DENIED.\\n. Specifically, Reyes filed her Motion for Continuance on November 5, 2008. On November 6, 2008, Nautilus filed its Response. On November 12, 2008, Reyes provided a Supplement to her Motion for Continuance, and Reyes filed her Reply on November 25, 2008.\\n. Subsequent to Nautilus' filing of the instant Motion, Reyes filed a Motion For Continuance under Federal Rule of Civil Procedure 56(f). Under Rule 56(f), a court may order continuance of a motion for summary judgment to allow for discovery if the party opposed to summary judgment \\\"shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition.\\\" Fed. R.Civ.P. 56(f). Reyes submitted an affidavit from her attorney specifying that the following discovery is essential to the instant Motion: (1) what Nautilus and its agent provided to the State of Texas in order for the State of Texas to license Niclcy & Claire's, (2) whether \\\"Nautilus and its agent knew of the Texas Day Care Licensing Laws before issuing this policy and knew what their obligations of coverage are,\\\" and (3) discovery of other items related to whether Nautilus violated the Texas Surplus Lines Act (\\\"SLA\\\") by issuing a surplus lines insurance policy to Nicky & Claire's.\\nReyes raised the first two (2) factual issues in her Response to Nautilus' Motion for Summary Judgment, and the Court addresses them in the instant Opinion and Order. With regard to the third factual issue, Reyes never expressly asserts that Nautilus' alleged violation of the SLA would result in Nautilus having a duty to defend or indemnify Nicky & Claire's and Bustamante. Nevertheless, the Court considers and dismisses this argument below.\\nThe SLA requires surplus lines insurers and surplus lines agents to comply with certain requirements in order to protect the insured, since surplus lines insurers are not regulated by the State of Texas. See Tex. Ins.Code Ann. \\u00a7 981.001 (Vernon 2008). For example, a surplus lines insurer should make an effort to obtain regular insurance for the insured before issuing a surplus lines insurance policy. Tex. Ins.Code Ann. \\u00a7 981.004(a)(1) (Vernon 2008). Additionally, the surplus lines insurer must be \\\"eligible\\\" and must issue insurance policies through an authorized surplus lines agent. Tex. Ins.Code Ann. \\u00a7 981.004(a)(2). Nevertheless, a policy provided by an insurer in violation of the SLA remains enforceable by the insured. Tex. Ins.Code Ann. \\u00a7 981.005 (Vernon 2008). Therefore, even if Nautilus violated the SLA by issuing the Policy, Nautilus would still have a duty to defend or indemnify Nicky & Claire's and Bustamante for claims covered by the Policy. Thus, whether Nautilus violated the SLA is not a genuine material fact that precludes the Court from determining Nautilus' duty to defend and indemnify Nicky & Claire's and Bustamante. Accordingly, this discovery is not essential to Reyes' argument against Nautilus' Motion for Summary Judgment. See Fed.R.Civ.P. 56(f).\\n. Nautilus does not ask the Court to determine Fireman's Fund's duty to defend or indemnify Nicky & Claire's and Bustamante. Accordingly, the instant Opinion and Order addresses only Nautilus', not Fireman's Fund's, duty.\\n. For example, a contract that states certain goods must be delivered to a greenhouse on Main Street is clear on its face, but if there are two (2) greenhouses on Main Street, the contract is latently ambiguous. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 n. 4 (Tex.1995).\\n. Accordingly, Reyes' Motion for Continuance is without merit as the discovery she seeks is not essential for the Court to decide Nautilus' Motion for Summary Judgment. See Fed.R.Civ.P. 56(f).\\n. While the Tri-State court emphasizes the difference between contracting for an amount of coverage and permitting exclusions, the court does so because, in the context of auto insurance, it believes the insured has little bargaining power over exclusions contained within those policies. Tri-State Pipe & Equip., Inc. v. S. County Mut. Ins. Co., 8 S.W.3d 394, 399-400 (Tex. Ct. Appeals-Texarkana 1999). In contrast, courts have consistently upheld auto exclusions in general liability contracts. See, e.g., Lincoln Gen. Ins. Co. v. Aisha's Learning Ctr., 468 F.3d 857, 859-60 (5th Cir.2006) (applying Texas law in case involving auto exclusion); Empire Fire and Marine Ins. Co. v. Brantley Trucking, Inc., 220 F.3d 679, 682 (5th Cir.2000) (same).\\n. The Court notes that, despite Reyes' repeated assertions that Nautilus or Fireman's Fund must have filed a Certificate of Insurance with the State of Texas representing that Nicky & Claire's was insured to meet the requirements of section 42.049, the statute does not require that an insurer file such a certificate. Rather, section 42.049 requires that license holder \\u2014 Nicky & Claire's \\u2014 \\\"file with the department a certificate or other evidence from an insurance company.\\\" Tex. Hum. Res.Code Ann. \\u00a7 42.049(b) (emphasis added).\\n. The Policy defines \\\"auto\\\" as \\\"a land motor vehicle, trailer or semi-trailer designed for travel on public roads,\\\" \\\"bodily injury\\\" as \\\"bodily injury, sickness or disease,\\\" and \\\"occurrence\\\" as \\\"an accident.\\\"\\n. Reyes does not expressly assert that Nicky & Claire's' alleged violation of Human Resources Code \\u00a7 42.049(b) would result in Nautilus' duty to defend or indemnify Nicky & Claire's. Nevertheless, since Reyes argues that discovery surrounding the issuance of the Policy and the materials provided to the Department of Family and Protective Services presents an issue of material fact, the Court notes that such an argument would be dismissed along similar grounds as Reyes' section 746.5607 argument. Any such violation would not alter the Court's eight-corners analysis.\"}"
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+"{\"id\": \"3771173\", \"name\": \"SHIELD v. McCUTCHEON et al.\", \"name_abbreviation\": \"Shield v. McCutcheon\", \"decision_date\": \"1953-03-18\", \"docket_number\": \"No. A-8403\", \"first_page\": \"41\", \"last_page\": \"43\", \"citations\": \"14 F.R.D. 41\", \"volume\": \"14\", \"reporter\": \"Federal Rules Decisions\", \"court\": \"United States District Court for the District of Alaska\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T20:09:53.068448+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SHIELD v. McCUTCHEON et al.\", \"head_matter\": \"SHIELD v. McCUTCHEON et al.\\nNo. A-8403.\\nDistrict Court, Alaska. Third Division, Anchorage.\\nMarch 18, 1953.\\nJohn E. Manders, Anchorage, Alaska, for plaintiff.\\nMcCutcheon, Nesbett & Rader, Anchorage, Alaska, for defendants.\", \"word_count\": \"1164\", \"char_count\": \"6880\", \"text\": \"DIMOND, District Judge.\\nThe plaintiff has sued for cancellation of certain shares of the capital stock of defendant, Valley Plotel Corporation, alleged to have been fraudulently issued, and for other relief. The plaintiff alleges that at the time of the issuance of the stock, the plaintiff was the absolute owner of approximately 60%, and thus more than a majority, of the issued and outstanding shares of the capital stock of the defendant corporation; and that the defendants Mc-Cutcheon, Nesbett, Hassman and Ryan and other directors of the corporation held a meeting of the Board of Directors and wrongfully and fraudulently voted the issuance of and caused to be issued to the defendants McCutcheon, Nesbett, Hassman and Ryan, 2,600 shares of the capital stock of the corporation whereby the plaintiff was deprived of the control of the corporation through ownership of a majority of its issued and outstanding stock.\\nThis suit is brought by the plaintiff in his individual capacity and not to enforce a derivative or secondary right, and is therefore not a \\\"class action\\\" under Rule 23, Fed.Rules Civ.Proc. 28 U.S.C.A. Dresdner v. Goldman Sachs Trading Corp., 1934, 240 App.Div. 242, 269 N.Y.S. 360, 363. The plaintiff's complaint is not verified as required by Section 23(b) of the Rules with respect to derivative suits. In argument upon the defendants' motion to dismiss for lack of verification, it was repeatedly asserted by counsel for the plaintiff that the suit was not derivative in any sense' and, therefore, that under the Rules with respect to individual actions no verification was or is necessary. While the immediate issue arises upon the matter of verification, the basic question is whether the plaintiff may sue for an individual wrong, and not be compelled to bring a derivative action which would be subject to the provisions of 23(b) of the Rules.\\nThis Court, after deliberation, in the case of Bowman v. Alaska Airlines, D.C., 14 F.R.D. 70 has held that as a general rule suits by minority shareholders for cancellation of stock and for other kindred relief'may not be brought by an individual stockholder for his own benefit alone, but may be asserted only as a class or derivative action for himself and other stockholders similarly situated.\\nThe only respect in which the action before us differs from the Bowman case is that in this suit the plaintiff says that he was the majority stockholder and that by a fraudulent conspiracy on the part of the defendants he was deprived of that status and hence that he has a right to bring the suit for his own individual wrong and is not compelled to assert his claim through a class action. And so we must consider whether the decision of the Court in the Bowman case ought to apply here.\\nThe following excerpts from the text of 13 Fletcher on Corporations 276, bear directly upon the subject:\\n\\\"Actions or suits which may be brought by a stockholder as an indi vidual include the following, among others:\\n*\\n\\\"8. Acts depriving a stockholder or member of rights as such, including acts depriving one of the advantage of a maj ority control.\\nsjt sjt jjc ^ 5<e\\n\\\"If the cause of action is based on unlawful acts relating solely to stock owned by plaintiff, it is an individual and not a corporate cause of action, while if it is based on acts relating to the capital stock as an entirety, or a particular class of stock, it is ordinarily a corporate cause of action and cannot be sued for by a stockholder merely as an individual. However, if the acts complained of, although relating to the stock as a whole, work an injury to rights belonging to the stockholders individually as between them and the corporation and its other stockholders, as where an unlawful increase of stock ousts the complaining stockholders from their position as controlling shareholders, the action is individual and not derivative.\\\"\\nThat statement is, of course, not without the support of judicial authority. In Witherbee v. Bowles, 1911, 201 N.Y. 427, 95 N.E. 27, 28 it was distinctly held that under similar circumstances the aggrieved plaintiff was entitled to bring a suit individually and was not restricted to a class action. In that connection, the Court of Appeals of New York, speaking through Justice His-cock, said:\\n\\\"In Stokes v. Continental Trust Co., 186 N.Y. 285, 296, 78 N.E. 1090, 1093, 12 L.R.A.,N.S., 969, simply affirming principles which had been long recognized, we referred to the rights belonging to a person by virtue of his ownership of stock in a corporation, especially mentioning the one to exercise a relative voice in the control and management of the corporation. We held that 'the power of the individual stockholder to vote in proportion to' the number of his shares is vital and cannot be cut off or curtailed by the action of all the other stockholders even with the cooperation of the directors and officers,' and determined that the right of a holder to maintain an existing proportion and relation between his stock and the entire capital stock was a property right of which he could not be deprived on an increase of stock under ordinary circumstances. In that case we gave relief to a stockholder complaining of the method employed in increasing the capital stock of a corporation which while not claimed to be with fraudulent purpose did impair his right to take his proportion thereof. Holding this in such a case, it seems very clear that a stockholder would have a right to attack and avoid a fraudulent increase of stock made for the express purpose and with the clear result of depriving him of his relative position as a stockholder.\\\"\\nThe Supreme Judicial Court of Maine in Trask v. Chase, 107 Me. 137, 77 A. 698 (1910) arrived at the same conclusion. This is a case deserving of consideration although it appears that all of the stockholders of the corporation, other than the plaintiff, were named as defendants. Not only authority but reason support that view. One who through the fraudulent action of others in a corporation is deprived of his uniquely powerful position with respect to the assets and the business of such corporation by being deprived of his control as a holder of the majority of the issued and outstanding stock, suffers a special damage and has an individual right for recovery.\\nParagraph 1 of the Motion to Dismiss, the only one argued, that \\\"the plaintiff has not complied with the Federal Rules of Civil Procedure relating to class actions\\\", is denied; and the second ground of the motion, that \\\"the complaint fails to state a claim upon which relief can be granted\\\", may be set down for hearing at the earliest convenient time.\"}"
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diff --git a/us/3794346.json b/us/3794346.json
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+"{\"id\": \"3794346\", \"name\": \"UNITED STATES of America, Appellee, v. Jeffrey D. FIELDS, Gilberto Jimenez-Hernandez, Defendants, Antonio Hernandez-Martinez, Jesus P. Campa, Defendants-Appellants\", \"name_abbreviation\": \"United States v. Fields\", \"decision_date\": \"2008-02-07\", \"docket_number\": \"Nos. 06-2257-cr(L), 06-3487-cr(CON)\", \"first_page\": \"156\", \"last_page\": \"158\", \"citations\": \"263 F. App'x 156\", \"volume\": \"263\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Second Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T16:59:59.566063+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"UNITED STATES of America, Appellee, v. Jeffrey D. FIELDS, Gilberto Jimenez-Hernandez, Defendants, Antonio Hernandez-Martinez, Jesus P. Campa, Defendants-Appellants.\", \"head_matter\": \"UNITED STATES of America, Appellee, v. Jeffrey D. FIELDS, Gilberto Jimenez-Hernandez, Defendants, Antonio Hernandez-Martinez, Jesus P. Campa, Defendants-Appellants.\\nNos. 06-2257-cr(L), 06-3487-cr(CON).\\nUnited States Court of Appeals, Second Circuit.\\nFeb. 7, 2008.\\nNicholas S. Goldin, Assistant United States Attorney, for Michael J. Garcia, United States Attorney for the Southern District of New York (Elie Honig, Diane Gujarati, of counsel), New York, N.Y., for Appellee.\\nJonathan Marks (Nelson M. Farber, on the brief), New York, N.Y., for Defendant-Appellant Hernandez-Martinez.\\nJesse M. Siegel, New York, N.Y., for Defendant-Appellant Campa.\\nPRESENT: Hon. WALKER, Hon. GUIDO CALABRESI and Hon. REENA RAGGI, Circuit Judges.\", \"word_count\": \"715\", \"char_count\": \"4523\", \"text\": \"SUMMARY ORDER\\nDefendant-Appellant Antonio Hernandez-Martinez (\\\"Hernandez\\\") was convicted in the United States District Court for the Southern District of New York (Heller-stein, J.) of conspiring to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. \\u00a7 846, and with attempting to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. \\u00a7 841(b)(1)(A). He appeals his conviction. Defendant-Appellant Jesus P. Campa pled guilty to those same charges and was sentenced to 125 months' imprisonment. Acting pro se, he appeals his judgment of conviction and sentence; his attorney has filed a motion, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), to withdraw as counsel to Campa; and the Government has moved for summary affirmance of Campa's conviction. We assume the parties' familiarity with the facts and procedural history of the case.\\nHernandez first asserts that the district court's refusal to grant a continuance, mid-trial, so that his attorney could interview a witness who was unavailable at the time because his prison cell block was under medical quarantine violated his Sixth Amendment right to compulsory process and his right to due process. The Supreme Court has held that, to establish a violation of this right, a defendant \\\"must make some plausible showing of how [the missing] testimony would have been both material and favorable to his defense.\\\" United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). Hernandez has made no such showing, as the testimony that he now claims the witness would have given did not undermine and may, in fact, have supported the Government's theory of guilt. For this reason, we conclude that the district court acted well within its discretion in denying both Hernandez's motion for a continuance and his Rule 33 motion for a new trial.\\nHernandez also contends that Judge Hellerstein improperly charged the jury as to that witness's equal availability to both sides. The point merits little discussion because, even if we were to identify error in this instruction, the judge gave a supplemental charge that was adequate to instruct the jury correctly that the witness's unavailability due to the prison quarantine arose after the Government had presented most of its case and before the defense had the opportunity to begin its own. See generally United States v. Glover, 511 F.3d 340, 345-46 (2d Cir.2008) (rejecting a challenge to an instruction that, by itself, might have constituted error, where the totality of the charge correctly instructed the jury as to the applicable law).\\nFinally, Hernandez argues that the trial judge's instruction allowing the jury to infer a relationship between himself and the witness from the fact that the witness's business card was found in his wallet was erroneous. \\\"So long as the inference is reasonable, it is the task of the jury, not the court, to choose among competing inferences.\\\" United States v. Kim, 435 F.3d 182, 184 (2d Cir.2006) (internal quotation marks omitted). The inference of a relationship between the two was reasonable, and the court properly instructed the jury that it was for them to determine whether or not to draw that inference.\\nAs to Appellant Campa, we have reviewed his attorney's Anders motion and the Government's motion for summary affirmance, and we agree that there are no non-frivolous issues that could be raised on appeal.\\nAccordingly, we AFFIRM the judgment of the district court as to Appellant Hernandez. We GRANT the motion of Jesse M. Siegel to withdraw as counsel to Appellant Campa, and we GRANT the Government's motion for summary affirmance as to Appellant Campa.\"}"
\ No newline at end of file
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+"{\"id\": \"3821421\", \"name\": \"UNITED STATES of America, Plaintiff, v. Lorraine HENDERSON, Defendant\", \"name_abbreviation\": \"United States v. Henderson\", \"decision_date\": \"2012-10-02\", \"docket_number\": \"Criminal No. 09-10028-DPW\", \"first_page\": \"134\", \"last_page\": \"136\", \"citations\": \"904 F. Supp. 2d 134\", \"volume\": \"904\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States District Court for the District of Massachusetts\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T19:35:34.421595+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"UNITED STATES of America, Plaintiff, v. Lorraine HENDERSON, Defendant,\", \"head_matter\": \"UNITED STATES of America, Plaintiff, v. Lorraine HENDERSON, Defendant,\\nCriminal No. 09-10028-DPW.\\nUnited States District Court, D. Massachusetts.\\nOct. 2, 2012.\\nDiane C. Freniere, United States Attorney\\u2019s Office, Boston, MA, for Plaintiff.\\nFrancis J. Dimento, Dimento & Sullivan, Boston, MA, for Defendant.\", \"word_count\": \"712\", \"char_count\": \"4268\", \"text\": \"MEMORANDUM AND ORDER\\nDOUGLAS P. WOODLOCK, District Judge.\\nBy its \\\"Motion to Reconsider Grant of Defendant's Motion for a New Trial\\\", the government has invited me to treat as acceptable jury instructions that I have concluded constituted a miscarriage of justice. United States v. Henderson, 857 F.Supp.2d 191, 210-12 (D.Mass.2012). The government's invitation comes in the form of an argument that if the instructions were error, they were \\\"plain error\\\" governed by Fed.R.Crim.P. 30(d) and 52(b).\\nI have kept the motion under advisement while a petition for a writ of certiorari was pending in DelRio-Mocci v. Connolly Properties, 672 F.3d 241 (3rd Cir.2012), the case upon which I relied in granting the new trial. Yesterday, the Supreme Court denied the writ. Bolmer v. Connolly Properties, Inc., \\u2014 U.S. -, 133 S.Ct. 167, 184 L.Ed.2d 35 (2012). I now will deny the motion for reconsideration.\\nIn the Memorandum and Order granting a New Trial under Fed.R.Crim.P. 33, I explained in some detail my view that this \\\"meretricious prosecution of a factitious felony,\\\" Henderson, at 213, is properly evaluated by the fact finder against the construction of the statute of conviction provided by the Third Circuit in DelRio-Mocci. Under DelRio-Mocci, the instructions in this case did not properly define the criminal offense the government undertook to prove. While I concluded that there was sufficient evidence, if just barely, by which the government could seek to persuade a different and properly instructed jury of the defendant's guilt at a new trial, the jury verdict rendered as a result of the instructions I gave at the initial trial could not stand.\\nIn making its invitation that I acquiesce in plain error, the Government systematically ignores the plain text of Rule 30(d) and the sources of Rule 52(b) which are together addressed to circumstances where appellate review should be precluded. The motion consequently fails to recognize the separate and distinct responsibilities and perspectives of trial and appellate judges. From the vantage point of the trial judge, I am firmly of the view that for a conviction to stand in this matter on that basis would be an error of the most fundamental sort. Whether that error is one that might be treated as \\\"plain\\\" and thus be precluded on appellate review is not part of the calculus for my decisionmaking in these circumstances.\\nIn one of the most insightful set of comments in the history of judicial confirmation hearings, then First Circuit Judge David H. Souter told the Senate Judiciary Committee of the lessons he had learned serving both as a trial judge and an appellate judge. The first lesson was that \\\"whatever court we are in . whether in the trial court or an appellate court, at the end of our task some human being is going to be changed in some way by what we do . as appellate judges, as far removed from the trial arena as it is possible to be.\\\" The Nomination of David H. Souter to be Associate Justice of the Supreme Court of the United States: Hearings Before the Comm, on the Judiciary, 101st Cong. 52 (1990) (Statement of Hon. David H. Souter, U.S. Circuit Judge for the First Circuit). \\\"The second lesson that I learned in that time\\\" Justice Souter explained, \\\"is that if, indeed, we are going to be trial judges, whose rulings will affect the lives of other people and who are going to change their lives by what we do, we had better use every power of our minds and our hearts and our beings to get those rulings right.\\\" Id.\\nFor these reasons, I decline the government's invitation to be satisfied with the trial of this case even if the' instructions I gave inadequately described what the government was required to prove to establish the defendant's guilt; accordingly, I DENY the government's motion [# 102] to withdraw my order for a new trial.\\nThe new trial, should the government choose to continue to pursue this matter, is set for December 10, 2012 in Courtroom 1.\"}"
\ No newline at end of file
diff --git a/us/3843321.json b/us/3843321.json
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+"{\"id\": \"3843321\", \"name\": \"Jasmineann VEGA, Plaintiff, v. SACRED HEART UNIVERSITY, INC., Defendant\", \"name_abbreviation\": \"Vega v. Sacred Heart University, Inc.\", \"decision_date\": \"2012-04-10\", \"docket_number\": \"Civil Action No. 3:10-CV-1870 (JCH)\", \"first_page\": \"81\", \"last_page\": \"86\", \"citations\": \"871 F. Supp. 2d 81\", \"volume\": \"871\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States District Court for the District of Connecticut\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:30:31.426842+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jasmineann VEGA, Plaintiff, v. SACRED HEART UNIVERSITY, INC., Defendant.\", \"head_matter\": \"Jasmineann VEGA, Plaintiff, v. SACRED HEART UNIVERSITY, INC., Defendant.\\nCivil Action No. 3:10-CV-1870 (JCH).\\nUnited States District Court, D. Connecticut.\\nApril 10, 2012.\\nJohn R. Williams, New Haven, CT, for Plaintiff.\\nJames M. Sconzo, Jonathan C. Sterling, Jorden Burt, Simsbury, CT, for Defendant.\", \"word_count\": \"2707\", \"char_count\": \"16154\", \"text\": \"RULING RE: MOTION FOR SUMMARY JUDGMENT [Doc. No. 37]\\nJANET C. HALL, District Judge.\\nI. INTRODUCTION\\nPlaintiff, Jasmineann Vega (\\\"Vega\\\"), brings this action against defendant, Sacred Heart University, Inc. (\\\"SHU\\\"), for damages resulting from SHU's failure to respond to an act of hazing, both on and off campus, and the school's failure to prevent subsequent harassment of Vega. Vega alleges that SHU negligently inflicted emotional distress by failing to abide by an alleged promise contained within SHU's student handbook.\\nSHU has filed a Motion for Summary Judgment, arguing that Vega's claim is one of educational malpractice, a cause of action that is not recognized in Connecticut courts. Additionally, SHU argues that Vega's negligent infliction of emotional distress claim fails as a matter of law. SHU states that its response to Vega's report of hazing was reasonable, that it had no notice that there were any unsafe conditions on its campus, and that it was not foreseeable that Vega would suffer severe emotional distress as a result of SHU's actions or inactions following the report of the hazing incident.\\n11. FACTUAL BACKGROUND\\nIn the fall of 2009, Vega participated in \\\"Go Greek,\\\" a week-long process during which she met the sisters of Delta Phi Kappa (the \\\"Sorority\\\"). On October 2, 2009, a Sorority sister picked up Vega and brought her to a house in Bridgeport where she was told to go to the basement of the house with the other Sorority pledges. There, Vega, as well as the other Sorority pledges, were required to maintain physical poses and perform exercises. Vega reported the hazing incident to SHU's Public Safety Department on October 5, 2009. On October 7, 2009, SHU's Dean of Students, Larry Wielk, informed the Sorority sisters that they were suspended from campus, which included all academic and non-academic activities, effective immediately. In addition, the Sorority sisters were informed that they were not to have any contact with any of the Sorority pledges, including Vega. The no contact order was never removed. Effective October 14, 2009, the sisters' suspension was reduced to a \\\"non-academic suspension,\\\" which allowed them to return to classes. On October 26, 2009, after the school conducted its hearings, eleven members of the Sorority received additional discipline. The Bridgeport Police Department also investigated the matter, but no arrests were made.\\nVega claims that, on or around October 12, 2009, individuals posted comments on the Facebook page of Ms. Segalla, a Sorority sister, regarding SHU's investigation into the hazing incident. Vega also received phone calls to her cell phone from two nonstudents that she perceived as being threatening.\\nVega alleges that on October 14, 2009, while walking to the Public Safety Office to meet her mother, three Sorority sisters followed her. One of the Sorority sisters tugged on her hood and said, \\\"We got her.\\\" Vega claims that the Sorority sisters attempted to \\\"jump her\\\" outside the Public Safety Office, but that when they noticed Vega's mother, the Sorority sisters ran away. In contrast, the Sorority sisters state that a news crew had been at the Sorority sisters' off-campus home and that they were on their way to the Public Safety Office to report the issue when they saw Vega and her mother. As a result, they went to speak with Dean Wielk rather than report the issue to the Public Safety Office. The Sorority sisters claim that they did not follow or harass Vega. Dean Wielk was unable to conclude that the Sorority sisters intentionally harassed Vega or violated the no contact order while on campus.\\nOn November 16, 2009, Vega visited her dormitory room with her mother, father, sister, and uncle to pick up books and drop off a pair of shoes and a check for the cable bill. Without Vega's knowledge, Vega's roommates invited Ms. Segalla, a Sorority sister, to their room. Upon entering her room, Vega noticed Ms. Segalla and immediately had an anxiety attack.\\nIII. STANDARD OF REVIEW\\nA motion for summary judgment \\\"may properly be granted . only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant judgment for the moving party as a matter of law.\\\" In re Dana Corp., 574 F.3d 129, 151 (2d Cir.2009). Thus, the role of a district court in considering such a motion \\\"is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.\\\" Id. In making this determination, the trial court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. See Fed.R.Civ.P. 56(c); Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir.2009).\\n\\\"[T]he moving party bears the burden of showing that he or she is entitled to summary judgment.\\\" United Transp. Union v. Nat'l R.R. Passenger Corp., 588 F.3d 805, 809 (2d Cir.2009). Once the moving party has satisfied that burden, in order to defeat the motion, \\\"the party opposing summary judgment . must set forth 'specific facts' demonstrating that there is 'a genuine issue for trial.' \\\" Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009) (quoting Fed.R.Civ.P. 56(e)). In determining whether a triable issue of fact exists, the court may only rely on admissible evidence. See ABB Indus. Sys., Inc. v. Prime Tech., Inc., 120 F.3d 351, 357 (2d Cir.1997). Where the opposing party relies on affidavits or declarations, the affidavit or declaration \\\"must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on matters stated.\\\" Fed. R.Civ.P. 56(c)(4). \\\"A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the nonmovant's favor.\\\" Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007)); see also Havey v. Homebound Mortg., Inc., 547 F.3d 158, 163 (2d Cir.2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (stating that a non- moving party must point to more than a mere \\\"scintilla\\\" of evidence in order to defeat a motion for summary judgment).\\nIV. DISCUSSION\\nVega filed suit against SHU for negligent infliction of emotional distress. Plaintiffs Brief in Opposition to Motion for Summary Judgment (Doc No. 42) (hereinafter \\\"Pl.'s Brief in Opp.\\\") at 3. After Vega was subjected to a hazing incident by the Sorority sisters, she reported it through formal complaints to SHU. Id. at 1. Vega alleges that SHU knew that Vega was in fear of retaliation for reporting the hazing incident, as evidenced by SHU issuing a no contact order. Id. at 3. Despite issuing this order, Vega alleges that SHU did not enforce the no contact order, thus failing to provide her security. Id. As a result, Vega suffered harassment while walking on campus. Id.\\nSHU has filed a Motion for Summary Judgment arguing that Vega's claim for negligent infliction of emotional distress is truly one of educational malpractice, a cause of action that is not recognized in Connecticut. Defendant's Memorandum in Support of Defendant's Motion for Summary Judgment (Doc. No. 37-1) (hereinafter \\\"Defs Mem. in Supp.\\\") at 11. Additionally, SHU argues that, even if the court finds Vega's claim to be one for negligent infliction of emotional distress, the claim fails as a matter of law. Id.\\nA. Educational Malpractice\\nSHU argues that, although Vega claims an action for negligent infliction of emotional distress, her true claim is one of educational malpractice. Defs Mem. in Supp. at 11. SHU argues that Vega cannot challenge SHU's academic decisions because, according to Connecticut Supreme Court precedent, Connecticut does not recognize a claim of educational malpractice. Id.\\nThis court addressed SHU's characterization of Vega's claim as one for educational malpractice in its Ruling on SHU's Motion to Dismiss and rejected that characterization. See Ruling Re: Defendant's Motion to Dismiss (Doc No. 27) (hereinafter \\\"Motion to Dismiss\\\") at 3. The court adheres to its previous rejection of the educational malpractice claim with regard to SHU's Motion for Summary Judgment. Vega's claim is one of negligent infliction of emotional distress. Motion to Dismiss at 3.\\nB. Negligent Infliction of Emotional Distress\\nSHU argues that Vega's negligent infliction of emotional distress claim fails as a matter of law. Def s Mem. in Supp. at 17. It argues that Vega cannot come forward with evidence upon which a reasonable jury could find the existence of a duty that was breached, nor did Vega provide evidence that satisfies the elements of negligent infliction of emotional distress. Id. at 17-19.\\n1. Duty\\nSHU argues that Vega does not allege the existence of a duty that was breached. Id. at 18. The court recognizes that \\\"[t]he existence of a duty of care is a prerequisite to a finding of negligence.\\\" Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 614, 783 A.2d 462 (2001). However, the court has addressed the duty element in its Motion to Dismiss. Vega has sufficient evidence for a jury to find that SHU owed her a duty of care under either the affirmative conduct doctrine or the premises liability doctrine. Vega has come forward with evidence that SHU undertook to protect her from foreseeable attacks by third parties by way of its affirmative avowals of its anti-harassment and anti-hazing policies. Pl.'s Brief in Opp. at 2-3; Vega Dep. (Doc No. 37-4) at 47-51, 66, 160. Given a duty, though, it is up to the jury to decide what SHU did to act on their duty, and whether it was reasonable.\\n2. Negligent Infliction of Emotional Distress\\nSHU argues that its response to Vega's hazing complaint was reasonable and that the school was reasonably safe for Vega. Defs Mem. in Supp. at 19. SHU supports its claim by evidencing the fact that the Sorority sisters, as well as the Sorority itself, received serious discipline, including a suspension from SHU and a no contact order effective to protect Vega. Id. at 19-20. SHU further argues that Vega cannot show that SHU's conduct was the cause of her distress. Id. at 26.\\nIn order to prevail on a negligent infliction of emotional distress claim, the following elements must be proven; \\\"(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiffs distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiffs distress.\\\" Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).\\nThe question on a motion for summary judgment is whether there is a genuine dispute as to a material fact. SHU alleges that the school was reasonably safe for Vega. Def s Mem. in Supp. at 1, 20-23. Vega states in her Deposition, however, that Dean Wielk told her that she could not commute to school in order to take her classes, but that she was required to live on campus as she had to pay for her dorm and meal plan. Vega Dep. (Doc No. 37-4) at 128. Furthermore, although Dean Wielk advised Vega that it was safe to return to campus, Vega disputes that the campus was safe. Id. at 160. She was told that the Sorority sisters were all suspended from campus, but on October 14, 2009, three Sorority sisters followed her on campus and, according to Vega, attempted to jump her. Id. at 158. A month later on November 16, 2009, Vega suffered an anxiety attack upon seeing a sorority sister in her dorm room. Id. at 174-76.\\nVega has also presented evidence in her Deposition that the other three elements of her negligent infliction of emotional distress claim are satisfied. For example, Vega states that her distress was foreseeable because she expressed her fear of retaliation by the sisters to Dean Wielk, id. at 127, yet she did not receive any updates from administration regarding the discipline of the Sorority sisters, id. at 120. Vega states that her emotional distress was severe because on November 16, 2009, she experienced an anxiety attack upon seeing one of the Sorority sisters in her dorm room, at which time 911 and campus security were called. Id. at 174-75. Lastly, Vega argues that it was SHU's conduct that caused her distress because Dean Wielk knew she feared retaliation, and yet he told her that she was safe on SHU's campus. Id. at 160.\\nV. CONCLUSION\\nFor the foregoing reasons, the defendant's Motion for Summary Judgment [Doc. No. 37] is DENIED.\\nSO ORDERED.\\n. In connection with a motion for summary judgment, the court relies on the undisputed facts in the parties' Local Rule 56(a) Statements. If a fact is disputed, the court views the evidence in the light most favorable to the plaintiff.\\n. Vega also plead that SHU violated the Connecticut Unfair Trade Practices Act by failing to abide by an alleged promise contained within SHU's student handbook. Compl. \\u00b6 13. The court dismissed this claim in its Ruling on the Motion to Dismiss. Ruling Re: Defendant's Motion to Dismiss (Doc No. 27) at 9-11.\\n. Vega asserts that she was also physically assaulted while walking on campus that day. Pl.'s Brief in Opp. at 3. However, in her Local Rule 56(a)(2) statement, she cites no evidence in the record to support that assertion.\\n. In Doe v. Yale Univ., \\\"the court reasoned that the distinction between an educational malpractice claim and a cognizable negligence claim occurring in a[n] educational setting, lies in the duty alleged to have been breached. If the duty alleged to have been breached is the duty to educate effectively, the claim is not cognizable. If the duty alleged to have been breached is the common law duty not to cause physical injury by negligent conduct, such a claim is, of course, cognizable.' \\\" Johnson v. Schmitz, 119 F.Supp.2d 90, 99 (D.Conn.2000) (citing Doe v. Yale Univ., 252 Conn. 641, 663, 748 A.2d 834 (2000)). In Johnson, the duty alleged to be breached was the duty to establish and enforce reasonable rules, and the court held that it was not precluded by Doe from hearing the claim. Id. The present case is more analogous to Johnson than Doe.\\n.The court notes, however, that Gupta's bar on educational malpractice does not apply when the result is physical harm \\\"because it falls within the traditionally recognized duty not to cause physical harm by negligent con duct.\\\" Doe, 252 Conn. at 663, 748 A.2d 834. An anxiety attack is a mental, rather than physical harm. See Bellotto v. County of Orange, 248 Fed.Appx. 232, 237 (2d Cir.2007); see also Martinsky v. City of Bridgeport, 814 F.Supp.2d 130, 144 (D.Conn.2011). Emotional distress does not itself involve physical injury or physical harm, unless there is a physical manifestation of the emotional distress. See Allstate Ins. Co. v. Burnard, No. 3:08CV603, 2010 WL 1332002, at *5 (D.Conn. Mar. 31, 2010); see also Bellotto, 248 Fed.Appx. at 237.\\n. On a motion for summary judgment, it is plaintiff's duty to come forward with evidence showing material issues of fact. Fed.R.Civ.P. 56(a). In doing so, plaintiff is required to set forth her facts in a 56(a)(2) statement, with specific citation to the record. L.R. 56(a). Plaintiff failed in large measure to do so in this case. While summary judgment could have been granted because of this failure, the court has searched the plaintiff's deposition and identified evidence therein that creates a material issue of fact.\\nCounsel is advised that failure to satisfy Local Rule 56(a) in the future will result in the grant of summary judgment.\\n. According to the parties' Local Rule 56(a) Statement, the Sorority sisters' suspension was reduced to a \\\"non-academic\\\" suspension on October 14, 2009. The no contact order was never removed.\"}"
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+"{\"id\": \"3860339\", \"name\": \"UNITED STATES of America, Plaintiff-Appellee, v. Edward J. PEREZ, Defendant-Appellant\", \"name_abbreviation\": \"United States v. Perez\", \"decision_date\": \"2009-12-30\", \"docket_number\": \"No. 09-10096\", \"first_page\": \"881\", \"last_page\": \"883\", \"citations\": \"360 F. App'x 881\", \"volume\": \"360\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Ninth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T23:34:05.502948+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.\", \"parties\": \"UNITED STATES of America, Plaintiff\\u2014Appellee, v. Edward J. PEREZ, Defendant\\u2014Appellant.\", \"head_matter\": \"UNITED STATES of America, Plaintiff\\u2014Appellee, v. Edward J. PEREZ, Defendant\\u2014Appellant.\\nNo. 09-10096.\\nUnited States Court of Appeals, Ninth Circuit.\\nArgued and Submitted Dec. 10, 2009.\\nFiled Dec. 30, 2009.\\nNicholas D. Dickinson, Esquire, U.S. Department of Justice, Washington, DC, Robert Lawrence Ellman, Esquire, Assis tant U.S., Office of the U.S. Attorney, Las Vegas, NV, for Plaintiff-Appellee.\\nJason F. Carr, Rene Valladares, Esquires, Assistant Federal Public Defenders, Federal Public Defender\\u2019s Office, Las Vegas, NV, for Defendant-Appellant.\\nBefore: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.\", \"word_count\": \"729\", \"char_count\": \"4520\", \"text\": \"MEMORANDUM\\nEdward J. Perez appeals his conviction for felony possession of a firearm in violation of 18 U.S.C. \\u00a7 922(g)(1), claiming the trial court deprived him of his right to a fair trial and due process when it admitted testimony describing his flight from the police and resistance to arrest. We affirm. Because the parties are familiar with the facts and procedural history, we will not recount them here.\\nPerez's claims, as his sole issue raised on appeal, that the testimony detailing his flight from the police and resistance to arrest was so prejudicial that it should have been excluded under Federal Rule of Evidence 403, and that the admission of such evidence constitutes reversible error. Rule 403 allows for the exclusion of relevant evidence \\\"if its probative value is substantially outweighed by the danger of unfair prejudice.\\\" Fed.R.Evid. 403. This panel reviews the district court's decision to admit evidence under Rule 403 for abuse of discretion. United States v. Curtin, 489 F.3d 935, 943 (9th Cir.2007) (en banc). The district court need not recite the Rule 403 test when deciding whether to admit evidence. United States v. Daly, 974 F.2d 1215, 1217 (9th Cir.1992).\\nHowever, when the appealing party fails to object to the admission of such evidence at trial, this panel reviews for plain error. United States v. Thompson, 82 F.3d 849, 854-55 (9th Cir.1996). Under the plain error standard of review, this panel will not grant relief unless there has been (1) error, (2) that was plain, (3) that affected substantial rights, and (4) that seriously affects the fairness, integrity or public reputation of the judicial proceeding. See United States v. Recio, 371 F.3d 1093, 1100 (9th Cir.2004). A judgment affects substantial rights when it \\\" 'affect[s] the outcome of the District Court proceedings.' \\\" United States v. Pino-Noriega, 189 F.3d 1089, 1097 (9th Cir.1999) (quoting United States v. Lussier, 128 F.3d 1312, 1317 (9th Cir.1997)). Both parties agree that Perez did not object to the admission of this evidence at trial.\\nPerez's argument on appeal fails because (1) the district court did not err\\u2014 and, if it did, certainly any error was far from plain \\u2014 in its admission of the testimony; and (2) even if there were plain error, it did not affect Perez's substantial rights.\\n1. If Perez wanted to object to the use of his flight as evidence of guilt, he should have objected to any instructions that may have allowed the jury to infer guilt from flight. He has raised no such argument on appeal. Perez instead objects to admission of the evidence of flight qua admission. But it would have been difficult if not impossible for the jury to understand how the police officers discovered that Perez was carrying a firearm without narrating the events that led to that discovery. For that reason, we do not think the district court abused its discretion in concluding that the probative value of the officers' testimony outweighed any prejudice that flowed solely from the testimony itself.\\n2. Nevertheless, even had such an error occurred, it would not have affected Perez's substantial rights, because the admission of the evidence did not affect the outcome of the trial. The evidence of Perez's guilt was overwhelming. Perez stipulated that he was a convicted felon and that the gun traveled in interstate commerce. The recovered gun magazine had his print on it. Even absent the contested testimony, the government offered detailed and credible testimony from two officers, whose testimony was consistent in describing the events. Both of these officers testified that they witnessed Perez reach in to his waistband and pull out a gun. In light of such testimony, evidence, and stipulations, we cannot find plain error.\\nTherefore, the conviction is\\nAFFIRMED.\\nThis disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.\"}"
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+"{\"id\": \"3936964\", \"name\": \"Frank Hugh COLTON, Petitioner-Appellant, v. Guy HALL, Respondent-Appellee\", \"name_abbreviation\": \"Colton v. Hall\", \"decision_date\": \"2010-07-06\", \"docket_number\": \"No. 08-35633\", \"first_page\": \"606\", \"last_page\": \"608\", \"citations\": \"386 F. App'x 606\", \"volume\": \"386\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Ninth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T23:17:32.232848+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: THOMPSON, McKEOWN and PAEZ, Circuit Judges.\", \"parties\": \"Frank Hugh COLTON, Petitioner-Appellant, v. Guy HALL, Respondent-Appellee.\", \"head_matter\": \"Frank Hugh COLTON, Petitioner-Appellant, v. Guy HALL, Respondent-Appellee.\\nNo. 08-35633.\\nUnited States Court of Appeals, Ninth Circuit.\\nSubmitted June 10, 2010.\\nFiled July 6, 2010.\\nHarrison Latto, Portland, OR, for Petitioner-Appellant.\\nInge D. Wells, Oregon Department of Justice, Salem, OR, for Respondent-Ap-pellee.\\nBefore: THOMPSON, McKEOWN and PAEZ, Circuit Judges.\\nThe panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).\", \"word_count\": \"620\", \"char_count\": \"3786\", \"text\": \"MEMORANDUM\\nPetitioner Frank Hugh Colton was convicted by jury of two counts of unlawful sexual conduct with a minor, in violation of Or.Rev.Stat. \\u00a7 163.427. At sentencing, the Oregon trial judge found that the acts did not arise out of a continuous and uninterrupted course of conduct, and imposed consecutive sentences. See Or.Rev.Stat. \\u00a7 137.123.\\nColton's pro se habeas corpus petition, filed in the district court, alleged ineffective assistance of counsel and averred that \\\"[t]he sentence was unconstitutional.\\\" Two years later, Colton sought to amend his petition to add a claim that the imposition of consecutive sentences by the Oregon court deprived him of his constitutional right to a jury trial. The district court rejected that claim as untimely.\\nWe have jurisdiction under 28 U.S.C. \\u00a7 2254, and we affirm.\\nColton argues the claim he sought to add by amendment is timely, because it \\\"relates back\\\" to his initial habeas petition. Relation back applies to habeas claims only if they \\\"arose out of the conduct, transaction, or occurrence set out \\u2014 or attempted to be set out \\u2014 in the original pleading.\\\" Fed.R.Civ.P. 15(c)(1)(B). See also Mayle v. Felix, 545 U.S. 644, 650, 664, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005) (explaining that relation back applies to claims \\\"tied to a common core of operative facts,\\\" but not to claims \\\"assert[ing] a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth\\\").\\nColton's initial petition asserted that his trial counsel erred by failing to object to his sentence, and stated: \\\"The sentence was unconstitutional, as petitioner was sentence[d] to a mandatory term, and received two counts of the same charge.\\\" The claim Colton sought to add by amendment challenged the Oregon court's imposition of consecutive sentences. Thus, the two claims involve different alleged errors by different actors. In addition, the two claims are not \\\"tied to a common core of operative facts.\\\" See id. at 664, 125 S.Ct. 2562. The original petition never mentions the consecutive nature of the sentences or any case law upon which Colton now relies. We conclude the district court did not abuse its discretion by denying Colton's motion to amend. See Williams v. Boeing Co., 517 F.3d 1120, 1132 n. 8 (9th Cir.2008) (explaining that a district court's denial of a motion to amend a complaint that will relate back under Rule 15(c) is reviewed for abuse of discretion).\\nEven if relation back were to apply, however, the Oregon court did not err by imposing consecutive sentences. As the Supreme Court held in Oregon v. Ice, \\u2014 U.S.-, 129 S.Ct. 711, 719, 172 L.Ed.2d 517 (2009), a state may assign to judges the decision whether to impose consecutive sentences. That's what the Oregon sentencing court did. Colton does not present clear and convincing evidence that the crimes arose from a continuous and uninterrupted course of conduct. See 28 U.S.C. \\u00a7 2254(e). The two acts occurred on the same day and involved the same victim, but the acts occurred in two separate rooms and enough time passed between them for one activity to have been completed before the second activity began.\\nAFFIRMED.\\nThis disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.\"}"
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+"{\"id\": \"3969718\", \"name\": \"UNITED STATES, Appellee, v. Private First Class Elisa E. GONZALEZ, United States Army, Appellant\", \"name_abbreviation\": \"United States v. Gonzalez\", \"decision_date\": \"2009-06-26\", \"docket_number\": \"ARMY 20080111\", \"first_page\": \"632\", \"last_page\": \"636\", \"citations\": \"69 M.J. 632\", \"volume\": \"69\", \"reporter\": \"West's Military Justice Reporter\", \"court\": \"United States Army Court of Criminal Appeals\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:48:16.619874+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BECK , SULLIVAN, and BAIME, Appellate Military Judges.\", \"parties\": \"UNITED STATES, Appellee, v. Private First Class Elisa E. GONZALEZ, United States Army, Appellant.\", \"head_matter\": \"UNITED STATES, Appellee, v. Private First Class Elisa E. GONZALEZ, United States Army, Appellant.\\nARMY 20080111.\\nU.S. Army Court of Criminal Appeals.\\n26 June 2009.\\nFor Appellant: Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Teresa L. Raymond, JA; Captain Richard P. Pizur, JA (on reply brief). Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Teresa L. Raymond, JA; Captain Richard P. Pizur, JA (on brief).\\nFor Appellee: Colonel Denise R. Lind, JA; Lieutenant Colonel Francis C. Kiley, JA; Captain Clare L. O\\u2019Shaughnessy, JA (on brief).\\nBefore BECK , SULLIVAN, and BAIME, Appellate Military Judges.\\n. Chief Judge BECK took final action while on active duty.\", \"word_count\": \"2591\", \"char_count\": \"15611\", \"text\": \"OPINION OF THE COURT\\nBECK, Chief Judge:\\nA military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of attempted distribution of marijuana, wrongful use of marijuana on divers occasions, wrongful distribution of marijuana on divers occasions, and possession of marijuana with intent to distribute, in violation of Articles 80 and 112a, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. \\u00a7 880 and 912a (2008). The military judge sentenced appellant to a bad-conduct discharge, confinement for thirteen months, forfeiture of all pay and allowances, and reduction to the rank of Private E-l. The convening authority approved the sentence as adjudged. This case is before the court for review pursuant to Article 66, UCMJ, 10 U.S.C. \\u00a7 866.\\nAppellant asserts he was improvident in his plea of guilty to possession with intent to distribute 1.3 grams of marijuana (Specification 3 of Charge II). For the reasons stated below, we disagree.\\nFACTS\\nOn 3 July 2007, appellant left Duffey's Club at Camp Humphreys to smoke a \\\"blunt,\\\" a cigar which he had previously hollowed out and filled with marijuana. Private First Class (PFC) D and Specialist (SPC) W, both military policemen, approached appellant, who offered to let them smoke the blunt. Both declined, telling appellant they were going to the field the next day. Private First Class D reported this incident to the Criminal Investigation Command (CID), which, with his aid, set up a controlled buy of marijuana from appellant.\\nDuring the morning of 12 July 2007, appellant met with PFC D and an undercover CID special agent. Appellant offered to sell marijuana to the undercover agent at a time and location later that day. Following this meet ing, and in preparation for the drag purchase, appellant obtained 4.1 grams of marijuana from PFC J, his supplier. Thereafter, appellant placed the marijuana in his pocket and went to the prearranged location. Contrary to his belief that all the marijuana was in one bag, 1.3 grams became loose from the bag in his pocket. Appellant intended to distribute all of the marijuana in his pocket, having resolved this would be his last drug transaction.\\nThat afternoon, appellant sold the undercover agent the 2.8 grams of marijuana contained in the bag in his pocket for $100.00. Appellant intended to sell all the marijuana in his possession to the agent and thought he had done so, but was unaware 1.3 grams of marijuana remained in his pocket. After selling the marijuana, appellant was apprehended and searched, at which time the remaining 1.3 grams of marijuana were found in his pocket. Appellant subsequently confessed that during the previous three months he distributed marijuana three to four times a week, usually in $50.00 quantities. In total, appellant admitted to distributing approximately fifty-five (55) grams of marijuana during the course of about fifty (50) drug transactions.\\nLAW\\nGuilty Plea\\nA court shall not accept a guilty plea where \\\"an accused . sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently....\\\" Article 45, UCMJ, 10 U.S.C. \\u00a7 845. \\\"[W]e review a military judge's decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo.\\\" United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.2008); United States v. Shaw, 64 M.J. 460, 462 (C.A.A.F.2007). To establish an adequate factual predicate for a guilty plea, the military judge must elicit \\\"factual circumstances as revealed by the accused himself [that] objectively support that plea[.]\\\" United States v. Davenport, 9 M.J. 364, 367 (C.M.A.1980). Once the military judge has accepted the pleas and entered findings based upon them, this court will not set them aside unless we find a substantial conflict between the pleas and the accused's statements or other evidence of record. Shaw, 64 M.J. at 462. More than a \\\"mere possibility\\\" of conflict is required. Id. (citation and quotation marks omitted). Instead, this court must find \\\"something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant's guilty plea.\\\" Inabinette, 66 M.J. at 322.\\nDISCUSSION\\nOn appeal, appellant contends he raised matters inconsistent with his plea of guilty during the providence inquiry into Specification 3 of Charge II when he stated he did not know he had the 1.3 grams of marijuana in his pocket because he thought he had distributed all the marijuana in his possession. To determine whether the military judge abused his discretion in accepting the guilty plea, we must review the factual basis of the guilty plea and the providence inquiry.\\nAppellant concedes the military judge correctly advised him of the elements of possession with intent to distribute marijuana. Additionally, appellant, in the Stipulation of Fact, admitted to each of the elements of the offense. The military judge advised appellant of the nature and significance of the stipulation, and appellant agreed \\\"under oath and in open court\\\" the stipulation was true and correct to the best of his knowledge. During the providence inquiry, the following colloquy occurred between the military judge and appellant:\\nMJ: And did you give them all of the drags that you had at that time?\\nACC: I thought I did, sir, but one of them fell in my pocket and was left there and I didn't know until they searched me, sir.\\nMJ: When you said \\\"One of them,\\\" what do you mean, \\\"One of them?\\\"\\nACC: When it's in a bag, sir, usually with all of my stuff I put it in \\u2014 usually it's in a separate package. So I tried to put it in the other bag and perhaps the other one fell into my pocket.\\nMJ: Was [sic] there multiple bags in one bag?\\nACC: No, it was just one bag and I had a folded receipt one, sir, that I thought that I was going to keep but I put it in the bag \\u2014 I thought I put it in the bag, but at the time I was \\u2014 I was just wanting to get rid of it, sir.\\nMJ: So you thought that you had given them all of the drugs?\\nACC: But it happened to fall in my pocket, sir.\\nMJ: But a small portion [was] still in your pocket?\\nACC: Yes, sir.\\nMJ: And what were you planning to do with that one\\u2014\\nACC: I didn't know it was in my pocket, sir.\\nMJ: With what was there, did you plan to give all that you had?\\nACC: Yes, sir.\\nMJ: So, when you left with however much you left with that you were going to give, you weren't going to have any left over? ACC: No, sir.\\nMJ: That you intended to distribute all of it?\\nACC: Yes, sir. That's why nothing was in my room, sir, at the time of the search.\\nAppellant told the military judge he knew the 1.3 grams of marijuana were indeed marijuana. Appellant also told the military judge he had no reason to dispute the marijuana weighed 1.3 grams. At no time did appellant attempt to raise a defense that he lacked knowledge of the contraband nature of the 1.3 grams of marijuana in his pocket or that someone had \\\"planted\\\" the marijuana in his pocket without his knowledge. See United States v. Manee, 26 M.J. 244, 249 (C.M.A. 1988) (discussing \\\"innocent possession\\\" due to accident or mistake). In fact, appellant readily admitted he obtained the 1.3 grams of marijuana from his supplier, knew it was marijuana, and placed it in his pocket intending to sell it all to the undercover agent.\\nOn appeal, appellant focuses narrowly on a snapshot in time, the moment of his apprehension. Significantly, however, appellant was charged with possession of the 1.3 grams of marijuana \\\"on or about 12 July 2007.\\\" Appellant committed the offense of possession of marijuana (both the 2.8 grams and the 1.3 grams) with intent to distribute when, on 12 July 2007, he obtained the 4.1 grams from his supplier with the intent of distributing all of it. At the moment appellant's supplier provided him the 4.1 grams of marijuana (comprised of both the 2.8 grams and the 1.3 grams appellant obtained with intent to distribute), all elements of the offense of possession with intent to distribute were satisfied as to both the 1.3 grams and 2.8 grams of marijuana. Cf. United States v. Miller, 34 M.J. 598, 601 (A.C.M.R.1992) (\\\"Because it is often impossible to prove the exact date and location of drug use, and because time and location are not the essence of the offense . some latitude is permitted in pleading and proving offenses of this sort.\\\").\\nA person who knowingly possesses a substance and thereafter misplaces or forgets about it or through inadvertence fails to distribute all of what he intended is nonetheless guilty of knowing possession when that substance is thereafter found within the person's control. Subsequent forgetfulness or negligence in possession does not negate otherwise-knowing possession of a controlled substance under Article 112a.\\nThis is not a case where an accused sets up a \\\"matter inconsistent with the plea.\\\" See United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F.1996). Appellant's statement that he did not know the 1.3 grams of marijuana were still in his pocket was consistent with his statement that prior to the drug distribution he decided this would be his last drag transaction, that he would sell all of the marijuana he had. He further supported this explanation by pointing out to the military judge that no marijuana had been found during the search of his room.\\nAppellant's statement that he did not know the 1.3 grams of marijuana were in his pocket, in the context of the providence inquiry, was a mitigating explanation, not a matter setting up a defense or a \\\"matter inconsistent with the plea\\\" of guilty to Specification 3 of Charge II.\\nWe should not overlook human nature as we go about the business of justice. One aspect of human beings is that we rationalize our behavior and, although sometimes the rationalization is \\\"inconsistent with the plea,\\\" more often than not it is an effort by the accused to justify his misbehavior.\\nA good trial judge can usually sort out the guilty plea and determine if an accused is so pleading because he has committed the offense charged.\\nUnited States v. Penister, 25 M.J. 148, 153 (C.M.A.1987) (Cox, J., concurring). In this case, the military judge did just that, carefully eliciting the factual basis of the guilty plea.\\nAppellant's mitigating explanation, while a rationalization, was not inconsistent with his plea of guilty. He wanted the military judge to know that even before being apprehended he had resolved to stop selling marijuana and that is why he thought he had distributed all of the marijuana to the undercover CID agent and why no marijuana was found in his room. After an extensive providence inquiry, the military judge asked appellant's counsel whether he believed any further inquiry was necessary, and appellant's counsel indicated that no further inquiry was needed. The military judge accepted the plea as provident and entered findings based on it.\\n\\\"Once the military judge has accepted a plea as provident and has entered findings based on it, an appellate court will not reverse that finding and reject the plea unless it finds a substantial conflict between the plea and the accused's statement or other evidence of record.\\\" Garcia, 44 M.J. at 498. In this case, appellant has failed to raise a \\\"substantial conflict\\\" requiring this court to reject the plea. \\\"A 'mere possibility' of such a conflict is not a sufficient basis to overturn the trial results.\\\" Garcia, 44 M.J. at 498.\\nThe military judge established \\\"an adequate basis in law and fact to support the plea before accepting it.\\\" Inabinette, 66 M.J. at 321-22. The military judge below, following a thorough inquiry, elicited substantial evidence from the appellant which, coupled with the stipulation of fact, supported the plea of guilty to possession with intent to distribute the 1.3 grams of marijuana. The Court of Appeals for the Armed Forces has emphasized that this is an area where military judges face unique challenges and must be allowed \\\"broad discretion;\\\" appellate courts should afford military judges \\\"significant deference.\\\" Inabinette, 66 M.J. at 322. As our superior court recognizes,\\n[tjhere exist strong arguments in favor of giving broad discretion to military judges in accepting pleas, not least because facts are by definition undeveloped in such eases. Indeed, as stated in Jordan, an accused might make a conscious choice to plead guilty in order to limit the nature of the information that would otherwise be disclosed in an adversarial contest. As a result, in reviewing a military judge's acceptance of a plea for an abuse of discretion appellate courts apply a substantial basis test: Does the record as a whole show a substantial basis in law and fact for questioning the guilty plea.\\nId. at 322 (citations omitted). The military judge below did not abuse the \\\"broad discretion\\\" afforded to him in obtaining from the appellant an adequate factual basis to support the plea. In reviewing the record as a whole, appellant failed to demonstrate a substantial basis for overturning his guilty plea. Accordingly, we find the military judge's findings of guilt correct in law and fact. See United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F.1996).\\nCONCLUSION\\nUpon consideration of the entire record, including those matters personally raised by appellant pursuant to United States v. Gros-tefon, 12 M.J. 431 (C.M.A.1982), the findings of guilty and the sentence are AFFIRMED.\\nSenior Judge SULLIVAN and Judge BAIME concur.\\n. Appellant was not separately charged with the distribution of the 2.8 grams of marijuana to the undercover CID special agent. He was charged with distributing fifty-five (55) grams to various soldiers between 3 April 2007 and 12 July 2007. This included the 2.8 grams of marijuana (Charge II, Specification 2), but did not include the 1.3 grams of marijuana that was the subject of Specification 3 of Charge II.\\n. Specifically, the stipulation of fact states: Appellant \\\"wrongfully possessed about 1.3 grams of marijuana, a schedule I controlled substance with the intent to distribute. After being apprehended on 12 July 2007, CID lawfully collected about 1.3 grams of marijuana off of the [appellant's] person. [Appellant] knew that the substance he possessed was marijuana.... Finally, [appellant] intended to give the marijuana to other soldiers.\\\"\\n. We specifically disapprove any implication to the contrary in Dept of the Army Pam. 27-9, Legal Services \\u2014 Military Judges' Benchbook, paragraph 3-37-1, note 3 and encourage the drafters to revise the note.\\n. There has been no suggestion that appellant's defense counsel was ineffective. Indeed, a review of the proceedings reveals that appellant was effectively represented by able counsel. Significantly, the adjudged sentence was below the sentence agreement appellant had with the convening authority.\"}"
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+"{\"id\": \"3975251\", \"name\": \"Filip SOFTA, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES; BCIS District Director, Respondents\", \"name_abbreviation\": \"Softa v. Attorney General of the United States\", \"decision_date\": \"2007-02-14\", \"docket_number\": \"No. 05-4128\", \"first_page\": \"237\", \"last_page\": \"240\", \"citations\": \"216 F. App'x 237\", \"volume\": \"216\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Third Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T19:11:23.360432+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: RENDELL and AMBRO, Circuit Judges, and BAYLSON , District Judge.\", \"parties\": \"Filip SOFTA, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES; BCIS District Director, Respondents.\", \"head_matter\": \"Filip SOFTA, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES; BCIS District Director, Respondents.\\nNo. 05-4128.\\nUnited States Court of Appeals, Third Circuit.\\nSubmitted Under Third Circuit LAR 34.1(a) Dec. 4, 2005.\\nFiled: Feb. 14, 2007.\\nJohn D. Perez, Perez, Perez & Perez, Newark, NJ, for Petitioner.\\nJafer Aftab, Office of United States Attorney, Newark, NJ, Richard M. Evans, Joan E. Smiley, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondents.\\nBefore: RENDELL and AMBRO, Circuit Judges, and BAYLSON , District Judge.\\nHonorable Michael M. Baylson, Judge of the United States District Court for the Eastern District of Pennsylvania, sitting by designation.\", \"word_count\": \"1489\", \"char_count\": \"8997\", \"text\": \"OPINION OF THE COURT\\nRENDELL, Circuit Judge.\\nFilip Softa, a native and citizen of Albania who fled to the United States in 2002, petitions for review of the denial by the Immigration Judge (\\\"IJ\\\") and the Board of Immigration Appeals (\\\"BIA\\\") of his application for asylum, withholding of removal, and protection under the Convention Against Torture (\\\"CAT\\\"). The IJ denied these claims because Softa's evidence was neither credible nor sufficient regarding the elements of these claims. Subsequently, the BIA entered an order adopting the opinion of the IJ. After a thorough review of the administrative record, we conclude that the IJ's decision was supported by substantial evidence, and we will accordingly deny the petition for review.\\nWe review the IJ's determination when the Board has affirmed the IJ without reasoning of its own. See Dia v. Ashcroft, 353 F.3d 228, 240 (3d Cir.2003) (en banc) (\\\"[Wjhere the BIA directs us to the opin ion and decision of the IJ who originally-assessed [the] application, we review the IJ's opinion.\\\"). We review the IJ's determination for substantial evidence. Dia, 353 F.3d at 247.\\nSubstantial evidence \\\"is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established.\\\" Id. at 248 (quoting NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939)). \\\"The Court will uphold the agency's findings of fact to the extent that they are 'supported by reasonable, substantial, and probative evidence on the record considered as a whole.' \\\" Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (quoting Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir.2001)). Adverse credibility findings are reviewed for substantial evidence. Id. \\\"We cannot overturn a credibility finding simply because we would reach a different opinion; rather, we must find that 'any reasonable adjudicator would be compelled to conclude the contrary.'\\\" Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir.2004) (quoting 8 U.S.C. \\u00a7 1252(b)(4)(B)). \\\"If the IJ's conclusion is not based on a specific, cogent reason, but, instead, is based on speculation, conjecture, or an otherwise unsupported personal opinion, we will not uphold it because it will not have been supported by such relevant evidence as a reasonable mind would find adequate.\\\" Dia, 353 F.3d at 250.\\nIn order to succeed on an asylum claim, the petitioner must show he is unable or unwilling to return to his county of origin \\\"because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.\\\" 8 U.S.C. \\u00a7 1101(a)(42). The petitioner must \\\"show that he has a subjective fear of persecution that is supported by objective evidence that persecution is a reasonable possibility.\\\" Abdille v. Ashcroft, 242 F.3d 477, 496 (3d Cir.2001). This may be based either upon past persecution, evidence of country conditions, or other facts in the record indicating the likelihood of persecution upon return. In order to be eligible for withholding of removal, the petitioner must demonstrate that it is more likely than not that his life or freedom would be threatened in his country of return because of the his race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. 1231(b)(3)(A). Similarly, with respect to the CAT, the petitioner must demonstrate that torture is more likely than not to be inflicted (for whatever reason) upon his return. 8 C.F.R. 208.16(c)(2).\\nHere, the IJ heard testimony from Softa with respect to instances of purported persecution based upon his political views. Softa testified that he had been an active member of the Democratic Party in Albania since 1992 and was a member of the board of the Party and active in its affairs and organizing activities. In March 1997, according to Softa, Communists began killing members of the Democratic Party and during that month he was attacked after leaving a rally by three persons who wore masks. He was beaten and his arm was broken. He did not know his attackers and they did not speak during the attack. He went to a doctor and reported the incident to the police but nothing was done. He testified that a few months thereafter he was attacked and held by the police for three days. The stated month of this attack was different on his 1-589 from what he testified, and he indicated that the information on the 1-589 was not correct. Softa also testified that in September of 1997 explosives destroyed the second floor and windows and doors of his house. Softa stated that he left Albania in November 1997 and went to Greece, where he stayed for one year before returning to Albania. Softa claimed that thereafter he went into hiding until he obtained a visa to leave in 2002. He testified that he would rather stay in prison in the United States than go back to Albania where his wife and children live.\\nSofta was the only person to testify in support of his claims, and the IJ found that testimony vague, contradictory, lacking in detail, and ultimately not credible. Sofia's asylum claim boiled down to two incidents: the beating by the three masked men and the bombing of the second floor of his house. In Softa's description of the beating, there was no indication of who attacked him, the attackers' political motivation, or their membership in the government or a political party. The same was true with regard to the bombing of his home. There were simply no facts to suggest that the bombing was politically motivated or that politically motivated attacks would occur if Softa returned to Albania. The IJ found the testimony to be \\\"erratic [and] inconsistent,\\\" in light of inconsistencies with respect to the severity of his injury (was it a bruised arm or a broken hand); his travel records (was he in Greece or was he not); the facts surrounding the bombing (was it his uncle's home, his home, or his grandfather's home); and other inconsistent statements.\\nThe IJ also noted that, according to Softa, he had returned to Albania on two occasions between 1997 and 2002 and managed to live in Albania for what appears to have been four years apparently without any incident. Though Softa claimed he was in hiding, the IJ found that this counseled against the likelihood that Softa would be persecuted on his return.\\nMoreover, the IJ noted that while there may have been problems in Albania in 1997, the Government had submitted documentation indicating that membership in the Democratic Party in 2006 is unlikely to lead to persecution by the government or the police. The country conditions note that the Democratic Party is a legitimate political party that is free to campaign and carry out lawful activities.\\nIn light of the lack of proof of political motivation behind the two attacks cited by Softa, his inconsistent statements, and the information before the IJ and the Court regarding Albania's country conditions, the IJ's decision to deny asylum was supported by substantial evidence. Taking the record as a whole, the IJ's conclusions are \\\" 'supported by reasonable, substantial, and probative evidence.'\\\" Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (quoting Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir.2001)). As the standard for asylum requests is lower than that for withholding of removal, the IJ was correct to deny that claim as well. Similarly, there was no evidence that it was more likely than not that Softa would be tortured if returned to Albania.\\nFor the reasons stated above, the BIA's order affirming the decision by the IJ will be affirmed and the petition for review denied.\\n. Additionally, Softa complains of the BIA's affirmance without opinion procedure, complaining that it constituted a violation of his Fifth Amendment due process rights. We need not address this due process argument here, as we have previously determined that the regulations providing for streamlining of cases by the BIA do not violate due process. See Dia v. Ashcroft, 353 F.3d 228, 240 (3d Cir.2003) (en banc) (\\\"Certainly, the BIA could have articulated its reasons for affirming the IJ's order, but just because it had the power to do so, does not mean the Constitution required it to exercise that power.\\\").\"}"
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+"{\"id\": \"4007823\", \"name\": \"HOSPICE OF NEW MEXICO, LLC, a New Mexico Corporation, Plaintiff, v. Kathleen SEBELIUS, Secretary of the United States Department of Health and Human Services, Defendant\", \"name_abbreviation\": \"Hospice of New Mexico, LLC v. Sebelius\", \"decision_date\": \"2010-03-05\", \"docket_number\": \"No. CIV 09-00145 RB-LFG\", \"first_page\": \"1275\", \"last_page\": \"1295\", \"citations\": \"691 F. Supp. 2d 1275\", \"volume\": \"691\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States District Court for the District of New Mexico\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T20:41:44.764122+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HOSPICE OF NEW MEXICO, LLC, a New Mexico Corporation, Plaintiff, v. Kathleen SEBELIUS, Secretary of the United States Department of Health and Human Services, Defendant.\", \"head_matter\": \"HOSPICE OF NEW MEXICO, LLC, a New Mexico Corporation, Plaintiff, v. Kathleen SEBELIUS, Secretary of the United States Department of Health and Human Services, Defendant.\\nNo. CIV 09-00145 RB-LFG.\\nUnited States District Court, D. New Mexico.\\nMarch 5, 2010.\\nBrian M. Daucher, Sheppard, Mullin, Ritcher & Hampton LLP, Costa Mesa, CA, Arlyn G. Crow, Albuquerque, NM, for Plaintiff.\\nManuel Lucero, U.S. Attorney\\u2019s Office, Albuquerque, NM, for Defendant.\", \"word_count\": \"10381\", \"char_count\": \"64048\", \"text\": \"MEMORANDUM OPINION\\nROBERT C. BRACK, District Judge.\\nTHIS MATTER came before the Court on the parties' cross-motions for summary judgment. (Does. 13 & 15.) For the reasons set forth below, the Court finds that 42 C.F.R. \\u00a7 418.309(b)(1) is invalid and should be set aside, Plaintiffs Motion for Summary Judgement/Stay (Doc. 15) is GRANTED, and Defendant's Motion for Summary Judgment (Doc. 13) is GRANTED IN PART and DENIED IN PART.\\nI. PROCEDURAL BACKGROUND\\nThe case involves the validity of federal regulation 42 C.F.R. \\u00a7 418.309(b)(1), promulgated by the Secretary of the Department of Health and Human Services. The Department of Health and Human Services (HHS) is the federal agency responsible for administering Medicare and reimbursing hospice care providers for services given to Medicare beneficiaries.\\nPlaintiff filed a Complaint (Doc. 1) in this matter on February 13, 2009, and an Amended Complaint (Doc. 11) on August 25, 2009. In a joint status/scheduling conference conducted July 27, 2009, the parties agreed that the matter could be resolved through summary judgment, as the ease primarily involves a legal question\\u2014 the validity of 42 C.F.R. \\u00a7 418.309(b)(1). (Doc. 9.) A Joint Notice of Briefing Complete (Doc. 28) was filed on October 20, 2009. Oral argument was held on February 25, 2010.\\nII. STATEMENT OF FACTS\\nPlaintiff Hospice of New Mexico requests that this Court invalidate federal regulation 42 C.F.R. \\u00a7 418.309(b)(1), which sets out the rules for calculating the statutory cap on Medicare reimbursements available to hospice care providers who provide services to terminally ill Medicare beneficiaries. Plaintiff asserts that the regulation is invalid and contrary to Congress' statutory mandate under 42 U.S.C. \\u00a7 1395f(i)(2)(C), that it is arbitrary and capricious, and that it amounts to an unlawful taking in violation of the Fifth Amendment. Prior to addressing the parties' arguments with respect to the validity of 42 C.F.R. \\u00a7 418.309(b)(1), a brief review of the history of Medicare benefits for hospice care is in order.\\nA. Hospice Medicare Benefits and the Statutory Cap\\nIn 1982, Congress amended the Medicare Act to provide coverage for hospice care. See Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. No. 97-248, \\u00a7 122, 96 Stat. 324 (codified at 42 U.S.C. \\u00a7 1395c). In order to receive Medicare benefits for hospice care, a Medicare beneficiary must be terminally ill, meaning that the \\\"individual's life expectancy is 6 months or less.\\\" 42 U.S.C. \\u00a7 1395x(dd)(3)(A). If a terminally ill Medicare beneficiary elects to receive hospice care, he or she waives all rights to Medicare payments for treatments of the underlying illness. 42 U.S.C. \\u00a7 1395d(d)(2)(A). To continue to receive benefits for hospice care, the Medicare beneficiary must elect hospice care for subsequent benefit periods; the first two periods last ninety days, and any subsequent periods last sixty days. 42 U.S.C. \\u00a7 1395d(d)(l). There is, however, no limit on the number of benefit periods for which a Medicare beneficiary may request hospice care. 42 U.S.C. \\u00a7 1395d(a)(4) and (d)(1). The only requirement is that each election be accompanied by a certification from the patient's physician that he or she is suffering from a terminal illness. 42 U.S.C. \\u00a7 1395f(a)(7).\\nThe amount that Medicare will reimburse a hospice care provider \\u2014 such as Plaintiff Hospice of New Mexico \\u2014 is limited by an annual statutory cap. See 42 U.S.C. \\u00a7 1395f(i)(2)(A). Any payments made to a hospice care provider during a fiscal year in excess of the statutory cap must be returned to Medicare. The fiscal year for hospice care providers \\u2014 i.e., the period for which the Medicare reimbursements are calculated \\u2014 runs from November 1 to October 31. Congress' intent in enacting such a benefits cap for hospice care was to ensure that Medicare would not expend more money in a year for hospice care than what would be expended in treating a patient in a traditional setting. See H.R.Rep. No. 98-333, at 1 (1983), U.S. Code Cong. & Admin.News 1983, at 1043, reprinted at 1983 WL 25325.\\nTo calculate a hospice care provider's annual reimbursement cap, HHS takes the per patient cap and multiplies it by the number of beneficiaries that have elected to receive hospice care from the given hospice program during that fiscal year. The per patient cap of $6,500 is adjusted annually using the Consumer Price Index to account for inflation; for fiscal year 2006, it was $20,585.39, and for fiscal year 2007, it was $21,410.04.\\nThe original, per patient cap of $6,500 is not at issue in this case; instead, the parties dispute the proper method for calculating the number of beneficiaries. The statute provides, in relevant part, that:\\nthe number of Medicare beneficiaries in a hospice program in an accounting year is equal to the number of individuals who have made an election . with respect to the hospice program and have been provided hospice care by (or under arrangements made by) the hospice program under this part in the accounting year, such number reduced to reflect the proportion of hospice care that each such individual was provided in a previous or subsequent accounting year or under a plan of care established by another hospice program.\\n42 U.S.C. \\u00a7 1395f(i)(2)(C) (emphasis added). The statute requires that when calculating the number of beneficiaries for a hospice care provider in a given fiscal year, the number should be \\\"reduced to reflect the proportion of hospice care\\\" that was actually provided to the program's patients, as opposed to care provided to the patient by another hospice care provider or during another year. Thus, if a beneficiary received care for only part of the year \\u2014 either because he was with another hospice care provider or did not elect hospice care for the entire year \\u2014 then, in calculating the hospice care provider's reimbursement cap, the number of beneficiaries must be proportionally reduced to reflect this situation.\\nThe Secretary of HHS promulgated two regulations providing specific methodologies for calculating the number of beneficiaries under 42 U.S.C. \\u00a7 1395f(i)(2)(C). Instead of attempting to perform a fractional adjustment of the amount of care that each beneficiary received in a particular year, the Secretary decided that it would be easier to reflect the proportion of hospice care actually provided in a given year by counting \\\"each beneficiary only in the reporting year in which the preponderance of the hospice care would be expected to be furnished.\\\" 48 Fed. Reg. 38146, 38158 (Aug. 22, 1983). The Secretary, thus, proposed the following regulation, which provides that, in calculating the number of Medicare beneficiaries receiving hospice care in a given fiscal year, one should only include:\\nThose Medicare beneficiaries who have not previously been included in calculation of any hospice cap and who have filed an election to receive hospice care . from the hospice during the period beginning September 28 (35 days before the beginning of the cap period) and ending on September 27 (35 days before the end of the cap period).\\n42 C.F.R. \\u00a7 418.309(b)(1).\\nThe regulation contemplates an average length of hospice services per patient of 70 days. Consequently, a hospice care provider will receive 100% of the statutory allowance during the current fiscal year for patients electing to receive hospice care on or before September 27 (35 days before the end of the fiscal year); and a hospice care provider will receive 100% of the statutory allowance during the subsequent year for patients electing to receive hospice care after September 27. The Secretary of HHS believed that this method would \\\"produce a reasonable estimate of the proportionate number of beneficiaries to be counted in each cap period,\\\" simplify the process for calculating the number of beneficiaries for a given accounting year, and result in less delay in the calculation of the hospice care providers' reimbursement caps. See 48 Fed.Reg. 38146, 38158 (Aug. 22, 1983). Thus, it was hoped that the regulation would \\\"achieve the intent of the statute without being burdensome.\\\" Id.\\nFor many years, this simplified method of calculating the statutory cap appears to have functioned well, and most hospice care providers were able to provide services without exceeding their caps. Recently, however, increasing numbers of hospice care providers from states throughout the nation have been exceeding their caps. See generally Marc Adler, The Government's Cap on Dying: Why Is the Medicare Hospice Benefit Cap Being Exceeded and How Should This Problem Be Addressed?, 4 NAELA J. 201 (2008). Plaintiff Hospice of New Mexico believes that federal regulation 42 C.F.R. \\u00a7 418.309(b)(1) is to blame. While the regulation contemplates an average length of hospice care of 70 days, Plaintiff asserts that the average length of care for a Hospice of New Mexico patient during fiscal years 2006 and 2007 was 193 days; and during 2005, the average length of care for hospice patients in fifteen states exceeded 70 days, including New Mexico, which had an average of 101 days. Plaintiff argues that this shift to longer periods of hospice care has resulted in too many beneficiaries being allocated to prior years, and as a result, the reimbursement cap for subsequent years being underestimated.\\nNonetheless, Defendant disputes that it is the increasing length of hospice stays in many states that has affected the calculation of the reimbursement cap under 42 C.F.R. \\u00a7 418.309(b)(1), arguing instead that some other factor is causing hospice care providers to exceed their reimbursement caps. Defendant contends that, even with an average length of care longer than 70 days, where there is a steady distribution of hospice care elections over the course of a year, the regulation will accurately reflect the proportion of hospice care provided in each accounting year and comply with the statute. Defendant has not, however, provided an alternate theory or mechanism to explain why so many hospice care providers are exceeding their statutory reimbursement caps.\\nB. Hospice of New Mexico, LLC\\nPlaintiff Hospice uf New Mexico is a Medicare certified hospice provider based in Albuquerque, New Mexico. Hospice of New Mexico began serving patients in the Albuquerque area in July 2004, and since that time, it has provided services to more than 1,000 patients. During its first fiscal year (July 2004 through Oct. 31, 2005), Hospice of New Mexico's cap allowances exceeded its Medicare revenue by $700,000. This surplus, however, could not be carried forward to subsequent years. Many of Hospice of New Mexico's patients that elected to receive hospice care during fiscal year 2005 continued to receive services during fiscal year 2006 (Nov. 1, 2005 through Oct. 31, 2006). Because many of these patients had already been allocated to fiscal year 2005 under 42 C.F.R. \\u00a7 418.309(b)(1), there was no cap allocation for them during fiscal year 2006; and therefore, under the current regulation, Hospice of New Mexico was not entitled to receive Medicare reimbursements for these patients during fiscal year 2006.\\nMedicare paid Hospice of New Mexico for the services it provided to all its beneficiaries during fiscal year 2006; but, in calculating the reimbursement cap for fiscal year 2006, Medicare beneficiaries who elected to receive hospice care prior to September 28, 2005 or after September 27, 2006 were not counted. On April 22, 2008, HHS sent Hospice of New Mexico a demand for repayment of $793,934 for exceeding its fiscal year 2006 cap. Plaintiff Hospice of New Mexico claims that if HHS had followed Congress' statutory mandate and used a fractional method of calculating its Medicare reimbursement cap as required by Congress, it would have had a higher cap for fiscal years 2006 and 2007, and its liability would have been materially reduced.\\nHospice of New Mexico paid HHS' repayment demand for fiscal year 2006, but it filed an appeal regarding its fiscal year 2006 cap determination with the Provider Reimbursement Review Board (PRRB) pursuant to 42 U.S.C. \\u00a7 1395oo challenging the validity of 42 C.F.R. \\u00a7 418.309(b)(1). The PRRB, however, lacks jurisdiction to determine the validity of a federal regulation; and therefore, Plaintiff Hospice of New Mexico applied for leave to seek expedited judicial review of its appeal. On December 16, 2008, the PRRB granted Plaintiffs request for expedited judicial review, finding that there were no material facts in dispute, the amount in controversy exceeded $10,000, and Plaintiffs appeal, involved principally a legal challenge to the validity of the regulation. Plaintiff Hospice of New Mexico then filed a complaint in the United States District Court for the District of New Mexico on February 13, 2009.\\nDuring fiscal year 2007 (Nov. 1, 2006 through Oct. 31, 2007), Hospice of New Mexico continued to serve patients who had elected to receive hospice care during previous fiscal years. Medicare again paid Hospice of New Mexico for the services it provided to all of its beneficiaries during fiscal year 2007; however, in calculating the reimbursement cap for fiscal year 2007, those beneficiaries who elected hospice care prior to September 28, 2006 or after September 27, 2007 were not counted. HHS sent Hospice of New Mexico a demand for repayment of $1,010,593.00 on May 27, 2009 for exceeding its fiscal year 2007 cap. Again, Plaintiff argues that the current regulation materially reduced -its reimbursement cap, and as a result, it suffered material prejudice due to Defendant's failure to follow Congress' statutory mandate.\\nPlaintiff Hospice of New Mexico again filed an appeal with the PRRB challenging the validity of 42 C.F.R. \\u00a7 418..309(b)(1) and requesting expedited judicial review. On July 24, 2009, the PRRB once again granted Plaintiffs request, finding that there were no material facts in dispute, the amount in controversy exceeded $10,000, and Plaintiffs appeal involved principally a legal challenge to the validity of the regulation. Plaintiff filed an amended complaint on August 25, 2009 that included the second claim for fiscal year 2007. Plaintiff Hospice of New Mexico was unable to pay HHS' repayment demand for fiscal year 2007 and applied for an extended repayment plan, which requires Plaintiff to repay the money with interest.\\nIn its Amended Complaint, Plaintiff Hospice of New Mexico claims that federal regulation 42 C.F.R. \\u00a7 418.309(b)(1) is invalid. Plaintiff asserts that because the regulation only contemplates' an average length of hospice care of 70 days, too many hospice patients are being allocated to pri- or years, along with their Medicare benefits, resulting in statutory cap that does not accurately reflect the proportion of care that was provided to its patients during fiscal years 2006 and 2007. Additionally, Plaintiff argues that the problem with the regulation is further compounded because patients allocated to previous years have lower allowances due to the fact that the per patient allowance is adjusted annually for inflation. Therefore, Plaintiff contends that the current regulation directly contravenes Congress' intent that Medicare reimbursements to hospice care providers proportionally reflect the benefits provided across years of service and requests the following relief:\\n1. A declaration that 42 C.F.R. \\u00a7 418.309(b)(1) is invalid.\\n2. A declaration that HHS' calculation of Hospice of New Mexico's cap liability for fiscal year 2006 is invalid.\\n3. A declaration that HHS' calculation of Hospice of New Mexico's cap liability for fiscal year 2007 is invalid.\\n4. An order requiring HHS to return to Hospice of New Mexico, with interest, all monies Hospice of New Mexico has paid towards repayment of the alleged 2006 and 2007 over-payments.\\n5. Pending final resolution of this matter, a preliminary injunction enjoining HHS from: (a) enforcing the 2007 repayment demand; and/or (b) calculating subsequent fiscal year alleged overpayments relating to Hospice of New Mexico pursuant to the current version of 42 C.F.R. \\u00a7 418.309(b)(1).\\n6. An order enjoining HHS from prospective use of 42 C.F.R. \\u00a7 418.309(b)(1) in calculating the hospice cap liability of Hospice of New Mexico or any other hospice provider.\\n7. An order requiring HHS to pay legal fees and costs of suit.\\n8. Such other and further relief as the Court may consider appropriate.\\n(Pl.'s First Amended CompL, Section VII. Relief Requested, \\u00b6 1-8.)\\nDefendant, nevertheless, refutes Plaintiffs claim that 42 C.F.R. \\u00a7 418.309(b)(1) is responsible for Plaintiff exceeding its statutory cap, arguing that \\\"[a]n average length of stay longer than seventy days would not affect the proportionality of this method of calculation.\\\" (Doc. 14, p. 7.) Defendant contends that where there is \\\"a steady distribution of hospice care elections over the course of a year, the regulation will effectively 'reflect the proportion' of hospice care provided in each accounting year.\\\" (Doc. 14, p. 7.) Defendant did not, however, provide any additional explanation or corroborating evidence for this assertion, either in her memoranda or during oral arguments before this Court.\\nDefendant additionally argues that the regulation is necessary to simplify the calculation of reimbursement caps because Medicare beneficiaries may elect to receive hospice care over a period of many years. Because under 42 U.S.C. \\u00a7 1395d(a)(4) and (d)(1) a terminally ill Medicare beneficiary is entitled to receive Medicare hospice benefits for as long as he or she continues to elect hospice care over treatment, and because this care can stretch over several periods and many years, Defendant argues that without the current regulation, a hospice care provider's reimbursement cap could only be calculated at the end of a beneficiary's stay \\u2014 i.e., after his or her death \\u2014 and waiting for each beneficiary to die to calculate the cap, or constantly recalculating the cap, would lead to financial uncertainty for the hospice care providers and significantly delay repayments to Medicare. Again, beyond her contention that invalidating the regulation would impose an enormous administrative burden on the agency, Defendant did not provide any explanation or evidence to corroborate these assertions.\\nThe Court also notes that in order to comply with 42 U.S.C. \\u00a7 1395d(a)(4) and (d)(1) \\u2014 which provides that a terminally ill Medicare beneficiary is entitled to Medicare hospice benefits as long as he or she continues to elect hospice care \\u2014 it would appear that a Medicare beneficiary who elects to receive hospice care over a period of more than one year must be counted, or at least a portion of his or her care reflected, in each fiscal year in which he'or. she elects to receive hospice care. If HHS is allocating benefits based solely on the date that a beneficiary elects hospice care and not providing benefits for additional years of care, then this would appear to be in direct contravention of 42 U.S.C. \\u00a7 1395d(a)(4) and (d)(1). Admittedly, the majority of hospice patients pass within the first year; however, by statute, terminally ill patients are entitled to continue to receive Medicare benefits for hospice care as long as they continue to make that election. Under the current regulation, however, it is not apparent that hospice care providers are being compensated for beneficiaries who elect to receive' hospice care over a period of several years, even if, as Defendant contends, there is \\u00e1 steady distribution of hospice care elections.\\nOne can imagine the following situation: A terminally ill patient elects to receive hospice care on August 31, 2006. The fiscal year for calculating. Medicare benefits ends October 31, 2006. Under the current regulation, because the patient elected to receive hospice care before the September 27 cutoff, HHS would allocate his entire $20,585.39 individual benefits cap to 2006. Under Plaintiffs proposed fractional method of calculating benefits, however, only a fraction of the $20,585.39 cap would be allocated to fiscal year 2006. Since the beneficiary received hospice care for only two out of the twelve months of the year, $3,430.90 \\u2014 one-sixth of the $20,585.39 reimbursement cap \\u2014 would be allocated to 2006.\\nThe next year, the beneficiary continues to elect hospice care throughout fiscal year 2007, and then he dies on October 31, 2007. Under the current regulation, it does not appear that HHS would count the beneficiary as having received any care during 2007. Under Plaintiffs proposed fractional method, however, HHS would include the beneficiary's entire individual cap amount of $21,410.04 for fiscal year 2007 when determining the hospice care provider's reimbursement cap. This hypothetical clearly shows that under the current regulation, at least on a patient-by-patient basis, benefit caps will be dramatically overestimated for some years and dramatically underestimated for others.\\nPlaintiffs proposed fractional method clearly complies with Congress' statutory mandate. In fact, it is the method that HHS currently employs when dealing with beneficiaries who have received hospice care from more than one hospice care provider in a given fiscal year. See 42 C.F.R. \\u00a7 418.309(b)(2) (\\\"In the case in which a beneficiary has elected to receive care from more than one hospice, each hospice includes in its number of Medicare beneficiaries only that fraction which represents the portion of a patient's total stay in all hospices that was spent in that hospice.\\\"). Nonetheless, Defendant claims that this fractional method of calculation is too cumbersome to use with beneficiaries who receive hospice care during multiple fiscal years. Defendant argues that this method works for beneficiaries who move between hospices because these cases are extremely rare; therefore, the- administrative burden is lower, and they do not significantly affect the overall cap calculation for hospice care providers. See 48 Fed. Reg. 38146, 38158 (Aug. 22, 1983) (\\\"we expect that the situation of beneficiaries changing to other hospices would occur infrequently; thus, we do not anticipate that the effect on hospice payments would be significant\\\").\\nC. District Court Cases\\nThis Court is not the first to confront a challenge to the validity of 42 C.F.R. \\u00a7 418.309(b)(1) by a hospice care provider. This is an increasingly important issue with national implications, and several courts from various districts have ruled on similar motions in recent years. What follows is a summary of the cases this Court reviewed in reaching its decision. The courts that have confronted this issue have generally \\u2022 either remanded to the PRRB for additional factual findings or found the regulation to be invalid.\\nSojourn Care, Inc. v. Leavitt, No. 07-CV-375-GKF-PJC, 2007 WL 3081499 (N.D.Okla. Feb. 13, 2007). The district court found that the regulation was invalid and did not comport with the statute and granted Plaintiffs motion for summary judgment. The court then remanded the matter to the PRRB to determine what monetary damages plaintiff may have suffered. Both parties appealed, and the case is now on appeal before the Tenth Circuit.\\nHeart to Heart Hospice, Inc. v. Leavitt, No. 1:07-CV-289-M-D, 2009 WL 279099 (N.D.Miss. Feb. 5, 2009). In this case, the district court denied both plaintiffs and defendant's motions for summary judgment. The court noted that plaintiff likely had standing and acknowledged plaintiffs concerns with the statute. Additionally, the court seemed to agree with Judge Frizzel's decision in Sojourn that the regulation was invalid, but it did not invalidate it; instead, the court deferred to HHS and/or Congress, stating that it \\\"was not prepared, at this juncture, to grant the relief sought by either party.\\\" Id. at *4. The court remanded the case to the PRRB for additional hearings, finding that plaintiff had \\\"neglected to establish the kind of factual record which would allow it to receive any tangible recovery in this case.\\\" Id. at *6.\\nCompassionate Care Hospice v. Sebelius, No. CIV-09-28-C, 2009 WL 2163503 (W.D.Okla. July 10, 2009). Plaintiff filed an action seeking a declaration that the regulation was invalid, that HHS' prior calculation of Compassionate Care's cap for fiscal year 2006 was invalid, and an order requiring HHS to return all monies that Compassionate Care overpaid to Medicare. Defendant sought dismissal of the case under Federal Rule of Civil Procedure 12(b)(1). Court denied defendant's motion to dismiss finding that plaintiff had pled sufficient facts to demonstrate Article III standing. The district court has not yet ruled on the merits of the case.\\nLos Angeles Haven Hospice, Inc. v. Leavitt, No. 2:08-cv-004469-GW-RZ, 2009 WL 5868513 (C.D.Cal. July 13, 2009). Plaintiff filed action seeking declaration that regulation was invalid and requesting restitutionary and injunctive relief. The district court found that plaintiff had standing to challenge the validity of the regulation and then granted plaintiffs motion for summary judgment, finding that the regulation was invalid. The court then required further presentation as to exactly what forms of relief plaintiff was seeking and whether they were appropriate for the court to award. The court also entered a nationwide injunction enjoining HHS from using the current regulation to calculate hospice cap liability for any hospice. HHS appealed the decision, and the court stayed the injunction pending the appeal.\\nAutumn Bridge, L.L.C. v. Sebelius, No. 5:08-cv-00819-F (W.D.Okla. Aug. 10, 2009). Plaintiff requested that the court declare the statute invalid, vacate the regulation, enjoin HHS from using the regulation, invalidate HHS' prior calculations under the regulation, and restore all sums overpaid by plaintiff. Both parties filed cross-motions for summary judgment. The court denied the parties' motions for summary judgment and remanded the case to the PRRB for further findings, specifically to determine the extent of plaintiffs alleged injuries. Although the court recognized that Autumn Bridge likely had standing, it declined to address that issue or the merits of the case, noting that the PRRB had not performed any analysis to determine whether there was $10,000 in controversy. Once the PRRB had made additional findings, the court was confident it could address both issues.\\nAmerican Hospice, Inc. v. Sebelius, No. 1:08-cv-01879-JEO (N.D.Ala. Jan. 27, 2010). Plaintiff American Hospice filed an action with the district court seeking declaratory judgment that the regulation was invalid as it conflicted with 42 U.S.C. \\u00a7 1395f(i)(2)(C). Parties then filed cross-motions for summary judgment. HHS argued that American lacked Article III standing, and therefore, the action should be dismissed. The court found that \\\"[b]e-cause HHS [had] not carried its burden to demonstrate that American [would] be unable to meet its burden at trial to prove standing, no burden shifted to American under Rule 56(e) to offer evidence supporting the allegations in its complaint on the issue.\\\" Id. at 21. American also sought summary judgment, requesting that the court declare the regulation invalid and order HHS to refund with interest all monies overpaid for fiscal year 2006, in addition to other relief. The court found that since American would bear the burden of proving standing at trial, it likewise bore the burden of presenting evidence demonstrating standing on its motion for summary judgment. Because American failed to establish all three elements of standing on summary judgment, the court denied its motion for summary judgment.\\nLion Health Services, Inc. v. Sebelius, 689 F.Supp.2d 849 (N.D.Tex. Feb. 22, 2010). Plaintiff sought a declaration that the regulation was unlawful, an order enjoining the Secretary of HHS from using 42 C.F.R. \\u00a7 418.309(b)(1), and an order requiring the Secretary to return all repayments made by plaintiff during 2006 and -2007. The court found that plaintiff had standing and had suffered an injury in fact because the repayment amounts were \\\"calculated using a method other than the method specified by Congress.\\\" Id. at 855. The court then went on to find that Congress clearly expressed its intent about how the calculation should be made in 42 U.S.C. \\u00a7 1395f(i)(2)(C): \\\"By its plain language, the statutory requirement that the number be 'reduced to reflect the proportion of hospice care that each such individual was provided in a previous or subsequent accounting year' can only be accomplished in one way....\\\" Id. at 856. Having found the regulation invalid, the court enjoined the Secretary from enforcing any overpayment determinations made pursuant to the regulation, enjoined the Secretary from using the regulation to calculate reimbursement caps for hospice care providers, and required the Secretary to refund all monies paid by plaintiff to the Medicare program for fiscal years 2006 and 2007.\\nIII. STANDARDS OF REVIEW\\nA. Summary Judgment\\nSummary judgment may be granted only when \\\"there is no genuine issue as to any material fact and . the moving party is entitled to judgment as a matter of law.\\\" Fed.R.Civ.P. 56(c); see also Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197, 1207 (10th Cir.2006) (finding that summary judgment is appropriate \\\"only where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law\\\") (internal quotations omitted).\\n\\\"[I]t is important to note that cross-motions for summary judgment do not automatically empower the court to dispense with the determination whether questions of material fact exist. They require no less careful scrutiny than an individual motion. [The court] must be convinced in all instances that the issues before [it] may be resolved as a matter of law.\\\" Missouri Pacific R. Co. v. Kansas Gas and Elec. Co., 862 F.2d 796, 799 (10th Cir.1988) (internal quotations and citation omitted). It is up to the trial court to determine \\\"whether the evidence presents a sufficient disagreement to\\\" preclude summary judgment \\\"or whether it is so one-sided that one party must prevail as a matter of law.\\\" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Furthermore, when dealing with cross-motions for summary judgment, the court must analyze each motion individually and on its own merits. Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir.1979) (\\\"Cross-motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.\\\").\\nB. Judicial Review of Agency Regulations Under the APA\\nThis Court has been asked to determine the validity of 42 C.F.R. \\u00a7 418.309(b)(1). Plaintiff asserts that the regulation is invalid and contrary to Congress' express statutory mandate in 42 U.S.C. \\u00a7 1395f(i)(2)(C). Under 42 U.S.C. \\u00a7 1395oo(f)(1), Congress specifically provided for judicial review of HHS regulations by a federal district court. Congress also required that the review be governed by \\\"the applicable provisions under chapter 7 Title 5,\\\" which describes the provisions for judicial review under the Administrative Procedure Act (APA). The APA imposes certain limitations on a district court when reviewing agency action. See 5 U.S.C. \\u00a7 701, et seq.\\nBecause Plaintiff claims that the Secretary's regulation \\\"is not in accordance with the express language of the Medicare Act, our review is governed by the familiar test set forth in Chevron v. Natural Resources Defense Council, Inc.,\\\" 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). St. Mark's Charities Liquidating Trust v. Shalala, 141 F.3d 978, 980 (10th Cir.1998). Under Chevron, the reviewing court must first ask \\\"whether Congress has directly-spoken to the precise question at issue.\\\" 467 U.S. at 842, 104 S.Ct. 2778. If Congress' intent is clear, the reviewing court is not to give any deference to the Secretary's interpretation, but \\\"must give effect to the unambiguously expressed intent of Congress.\\\" Id. at 843, 104 S.Ct. 2778. However, where \\\"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.\\\" Id. Additionally, where Congress has \\\"left a gap for the agency to fill,\\\" either implicitly or explicitly, the Secretary's regulation is \\\"given controlling weight.\\\" Id. at 843-44, 104 S.Ct. 2778.\\nIV. LEGAL ANALYSIS\\nA. Article III Standing and Jurisdiction\\nBefore addressing the merits of the parties' motions for summary judgment, the Court must first determine whether Plaintiff has standing to bring the action. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Article III, Section 2 of the U.S. Constitution requires in every case that there be an actual case or controversy. Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997); Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). There are three essential elements to constitutional standing: (1) injury in fact\\u2014 plaintiff must show that he has suffered a harm that is concrete and actual; (2) causation \\u2014 -plaintiff must show a fairly traceable connection between the injury and defendant's conduct; and (3) redressability\\u2014 the requested relief must address the alleged injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Citizens for a Better Env't, 523 U.S. at 103, 118 S.Ct. 1003; Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1241 (10th Cir.2008). Plaintiff bears the burden of establishing standing. Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130.\\nDefendant argues that this Court lacks standing because \\\"Plaintiffs injury does not establish standing nor meet the minimum amount in controversy of $10,000\\\" as required by 42 U.S.C. \\u00a7 1395oo(a)(2). (Doc. 14, p. 21.) Plaintiff counters that the PRRB already found that the amount in controversy exceeds $10,000. (Doc. 23, p. 2.) However, this Court must make its own determination of jurisdiction. See Huerta v. Gonzales, 443 F.3d 753, 755 (10th Cir.2006); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995). To support its claim that it has been injured by the alleged invalid regulation, Plaintiff submitted a Supplemental Declaration of Cathy Conrad [Administrator of Hospice of New Mexico] in Support of Plaintiffs Opposition to HHS' Motion for Summary Judgment (Doc. 24) showing that HHS underestimated Plaintiff Hospice of New Mexico's reimbursement cap for fiscal year 2007 by more than $500,000.\\nThe Court finds that Plaintiff Hospice of New Mexico has adduced sufficient evidence to establish that it is entitled to keep at least a portion of the repayment demands for fiscal years 2006 and 2007. See Ford v. NYLCare Health Plans of the Gulf Coast, Inc., 301 F.3d 329, 332-33 (5th Cir.2002) (\\\"at the summary judgment stage, 'the plaintiff can no longer rest on . mere allegations, but must set forth by affidavit or other evidence specific facts' validating his right to standing\\\" (quoting Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130)). Plaintiffs Supplemental Declaration (Doc. 24) indicates that if the fractional method described in 42 C.F.R. \\u00a7 418.309(b)(2) had been used to calculate the number of beneficiaries for fiscal years 2006 and 2007 instead of the method required by 42 C.F.R. \\u00a7 418.309(b)(1), Plaintiffs reimbursement cap would have been increased by more than $500,000. Thus, Plaintiff has shown that it has suffered an injury that is concrete and actual, and that the injury was a direct result of HHS' application of 42 C.F.R. \\u00a7 418.309(b)(1), satisfying the first two requirements of standing \\u2014 injury in fact and causation.\\nThe third requirement, redressability, is more difficult. Plaintiff requests several forms of relief, including that HHS return with interest all repayments made by Hospice of New Mexico for fiscal years 2006 and 2007. Granting this type of monetary relief would be extremely difficult for this Court and likely require extensive fact-finding and hearings. This is not the proper role for a district court reviewing agency action. Nonetheless, HHS' application of the allegedly invalid regulation is an integral part of the injury suffered by Plaintiff, and if the Court were to find that the regulation is invalid, this would at least partially redress Plaintiffs injury. See Larson v. Valente, 456 U.S. 228, 243 n. 15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (noting that plaintiff \\\"need not show that a favorable decision will relieve his every injury\\\").\\nHaving determined that Plaintiff has satisfied the constitutional standing requirements for federal jurisdiction under Article III, the Court must now determine whether Congress has provided the Court a statutory grant of jurisdiction. See Kline v. Burke Construction Co., 260 U.S. 226, 233-34, 43 S.Ct. 79, 67 L.Ed. 226 (1922); Commodity Futures Trading Comm'n v. Nahas, 738 F.2d 487, 492 (D.C.Cir.1984) (\\\"The Court must [] scrupulously observe the precise jurisdictional limits prescribed by Congress.\\\"). Defendant correctly observes that this Court's jurisdiction \\\"extends only so far as Congress provides by statute.\\\" (Doc. 22, p. 4.) In the ease at hand, 42 U.S.C. \\u00a7 1395oo(f) provides a statutory grant of jurisdiction for this Court to review the validity of 42 C.F.R. \\u00a7 418.309(b)(1):\\n[Hospice Care] Providers shall also 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 [PRRB] determines . that it is without authority to decide the question.... Such action shall be brought in the district court of the United States for the judicial district in which the provider is located....\\nAdditionally, Plaintiff has provided sufficient proof at the summary judgment stage of the minimum amount in controversy required by 42 U.S.C. \\u00a7 1395oo(a)(2). Therefore, the Court finds that Plaintiff has standing, and the Court therefore has subject matter jurisdiction to hear this case.\\nB. Chevron Analysis\\nThe Secretary of HHS promulgated two rules instructing the agency on how to carry out a proportional reduction of the number of hospice beneficiaries under 42 U.S.C. \\u00a7 1395f(i)(2)(C): (1) a rule applying in cases where the beneficiary was provided care by the same hospice care provider, but for only part of the year, 42 C.F.R. \\u00a7 418.309(b)(1); and (2) a rule applying in cases where the beneficiary received care from more than one hospice provider during the fiscal year, 42 C.F.R. \\u00a7 418.309(b)(2). Plaintiff challenges the validity of the first rule, which provides that in calculating the number of beneficiaries for a given year, one should only include:\\nThose Medicare beneficiaries who have not previously been included in calculation of any hospice cap and who have filed an election to receive hospice care . from the hospice during the period beginning September 28 (35 days before the beginning of the cap period) and ending on September 27 (35 days before the end of the cap period).\\n42 C.F.R. \\u00a7 418.309(b)(1). Plaintiff argues that this regulation is invalid because it directly conflicts with 42 U.S.C. \\u00a7 1395f(i)(2)(C), which provides in relevant part:\\n[T]he number of Medicare beneficiaries in a hospice program in an accounting year is equal to the number of individuals who have made an election . with respect to the hospice program and have been provided hospice care by (or under arrangements made by) the hospice program under this part in the accounting year, such number reduced to reflect the proportion of hospice care that each such individual was provided in a previous or subsequent accounting year or under a plan of care established by another hospice program.\\nBecause Plaintiff claims that the Secretary's regulation \\\"is not in accordance with the express language of the Medicare Act, our review is governed by the familiar test set forth in Chevron.\\\" St. Mark's Charities, 141 F.3d at 980. The Court must first look to see \\\"whether Congress has directly spoken to the precise question at issue.\\\" Chevron, 467 U.S. at 842, 104 S.Ct. 2778.\\nCongress provided that when calculating the reimbursement cap for a hospice care provider for a given fiscal year, the number of hospice beneficiaries should be \\\"reduced to reflect the proportion of hospice care that each such individual was provided in a previous or subsequent accounting year or under a plan of care established by another hospice program.\\\" 42 U.S.C. \\u00a7 1395f(i)(2)(C). Plaintiff argues that the intent of Congress in Section 1395f(i)(2)(C) is clear and unambiguous and that HHS is therefore required to use the fractional method of calculation described in 42 C.F.R. \\u00a7 418.309(b)(2) to determine the number of beneficiaries that elected to receive hospice care for only part of the year. Defendant, however, argues that the phrase \\\"reflect the proportion\\\" is ambiguous, and Congress left it up to the Secretary of HHS to determine precisely how the number of beneficiaries should be calculated. Because the intent of the statute can be satisfied through a variety of methodologies, Defendant argues that the Court must analyze the regulation under the second prong of Chevron, overturning the agency's action only if it is \\\"arbitrary, capricious, or manifestly contrary to the statute.\\\" Chevron, 467 U.S. at 844, 104 S.Ct. 2778.\\nThe Court starts its analysis under the first prong of Chevron. To determine whether or not Congress' intent was clear, the Court must engage in statutory interpretation. \\\"If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.\\\" Id. at 843 n. 9, 104 S.Ct. 2778. Therefore, the question for the Court is whether Congress clearly expressed in 42 U.S.C. \\u00a7 1395f(i)(2)(C) how HHS should reduce the number of beneficiaries. See Lion Health Services, 689 F.Supp.2d at 856.\\n\\\"As in all statutory construction cases, we begin with the language of the statute. The first step 'is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.' \\\" Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). The Court should consider the language of the statute in its plain, ordinary, or natural sense, and if the meaning of the statute is then clear on its face, the Court need go no further. Stenberg v. Carhart, 530 U.S. 914, 992, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (Thomas, J. dissenting); FDIC v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Smith v. United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993); United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984). The key phrase that the parties in this and other hospice cases have focused on in determining whether Section 1395f(i)(2)(C) is clear and unambiguous is \\\"reflect the proportion.\\\" Plaintiff argues that this phrase clearly expressed Congress' intent that HHS use a fractional method of calculation; however, Defendant argues that the phrase was intentionally ambiguous, and therefore, Congress intended for HHS to promulgate a regulation.\\nThe word reflect can have various meanings depending on how it is used. When read in the context of the statute, however, the intended meaning is clear. See Robinson, 519 U.S. at 341, 117 S.Ct. 843; Morton, 467 U.S. at 828, 104 S.Ct. 2769 (\\\"We do not . construe statutory phrases in isolation; we read statutes as a whole\\\"); Lion Health Services, No. 4:09-CV-493-A, at 15 (\\\"[although 'reflect' and 'proportion' may be ambiguous in other contexts, the meaning of those terms as they are used in \\u00a7 1395f(i)(2)(C) is made clear by reference to the words immediately surrounding them in that statute.\\\"). Within the context of Section 1395f(i)(2)(C), the word reflect merely means to express, to indicate, or to make apparent. Thus, Congress instructed that the number of beneficiaries should be reduced to express the fact that a proportion of hospice care for each individual may have been provided in a different year or by another hospice program.\\nDefendant argues that reflect implies a certain degree of imprecision, requiring only \\\"an estimate\\\" of the number of beneficiaries, not a precise fractional calculation. Defendant relies on the Seventh Circuit securities case, Bd. of Trade of Chicago v. SEC, where the court found that in order for an index to reflect the market, it was sufficient that there was a 92% \\\"long-term correlation between the indexes and the larger portfolios.\\\" 187 F.3d 713, 719 (7th Cir.1999). Contrary to Defendant's assertion that the word reflect requires only a rough estimate, the Court instead understands the Seventh Circuit as having interpreted the word to require a certain degree of precision and accuracy. A 92% correlation would indicate a fairly substantial degree of precision in the index, at least something beyond a mere estimate. Granted, the index in Bd. of Trade of Chicago did not represent an exact mirror image of the market; however, it provided a better reflection of the market than the Secretary's regulation does of the number of beneficiaries.\\nIndeed, a reflection is not always perfect, as imperfections in the reflecting surface will create imperfections in the reflected image; thus, to reflect in its ordinary, plain meaning may not require a perfect calculation. Nonetheless, a reflection generally provides a near flawless reproduction of the original, and when it doesn't, one would say the image has been distorted. From Plaintiffs calculations, it appears that Defendant may have overestimated the repayment demand for Hospice of New Mexico for 2007 by more than 50%. (Doc. 24.) Such a large degree of error does not accurately reflect the number of beneficiaries; rather, it completely distorts the repayment demand made of the hospice care provider.\\nDefendant next argues that the word proportion is also ambiguous. Defendant relies on a case from the Eighth Circuit in which the court found that \\\"[t]he term 'in proportion to' is not precise; it may mean any one of several things.\\\" First National Bank of Milaca v. Heimann, 572 F.2d 1244, 1249 (8th Cir.1978). This argument is not at all persuasive, however, as the context of the Eighth Circuit case is completely different. The phrase \\\"in proportion to,\\\" as used in First National Bank, means \\\"in comparison to\\\" \\u2014 as in, his head is very large in proportion to his body. The word \\\"proportion,\\\" within the context of 42 U.S.C. \\u00a7 1395f(i)(2)(C), refers to the mathematical relation of a part to the whole; in other words, it specifies a ratio or a fraction. Thus, giving the language of the statute its plain and ordinary meaning, the Court understands Congress intended that the number of beneficiaries be reduced to indicate the fraction of \\\"hospice care that each such individual was provided in a previous or subsequent accounting year.\\\"\\nThe phrase \\\"each such individual\\\" indicates that the reduction should be carried out on an individual basis for each hospice patient, not estimated by allocating patients to different years based upon the date they elected to receive hospice care. Furthermore, the statute requires that the proportional reduction of the number of beneficiaries reflect hospice care \\\"provided in a previous or subsequent accounting year.\\\" In other words, the statute requires that each hospice patient's benefit cap allowance be allocated across years of service, not lumped into a single year in which care was provided, irrespective of the length of a patient's overall stay.\\nThis interpretation of the language of 42 U.S.C. \\u00a7 1395f(i)(2)(C) is further supported when one looks at \\\"the broader context of the statute as a whole.\\\" Robinson, 519 U.S. at 341, 117 S.Ct. 843; see also Morton, 467 U.S. at 828, 104 S.Ct. 2769 (\\\"We do not . construe statutory phrases in isolation; we read statutes as a whole\\\"); Dole Food Co. v. Patrickson, 538 U.S. 468, 484, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003) (\\\"Statutory interpretation is not a game of blind man's bluff. Judges are free to consider statutory language in light of a statute's basic purposes.\\\" (Breyer, J., concurring in part and dissenting in part)). Provisions of the Medicare Act relating to Health Insurance for the Aged and Disabled are codified in Title 42, Chapter 7, Subchapter XVIII, Sections 1395-1395hhh of the United States Code. One of the Medicare benefits available to the aged and disabled described in these sections is hospice care. Section 1395d provides that a terminally ill Medicare beneficiary is entitled to Medicare benefits for hospice care as long as he or she continues to elect hospice care. See 42 U.S.C. \\u00a7 1395d(a)(4) and (d)(1). Therefore, a Medicare beneficiary who elects to receive hospice care over a period of more than one year must be counted-or at least a portion of his or her care reflected-in each fiscal year in which he or she elects to receive hospice care. The Secretary's regulation simply does not provide for hospice patients who may receive care over multiple years, even though Congress clearly contemplated this eventuality.\\nIn conclusion, this Court finds that Congress' intent when it drafted 42 U.S.C. \\u00a7 1395f(i)(2)(C) was clear and unambiguous, and 42 C.F.R. \\u00a7 418.309(b)(1) does not comport with that intent. The statute requires a fractional reduction of the number of Medicare beneficiaries to be performed on an individual basis and across as many years of service as the Medicare beneficiary remains eligible and continues to elect hospice care. See Los Angeles Haven Hospice, No. 2:08-cv004469-GW-RZ, at 7-8 (\\\"Congress unquestionably required that the number of Medicare beneficiaries be reduced to reflect 'the proportion' (not simply a proportion or an estimate, as Defendant would apparently have 'reflect' mean in this context) of hospice care that 'each such individual' (not individual in the aggregate) 'was provided in a previous or subsequent accounting year.' \\\"). Under 42 C.F.R. \\u00a7 418.309(b)(1), HHS is allocating benefits based solely on the date that a beneficiary elects hospice care and thereby merely estimating the proportion by which the number of beneficiaries should be reduced in a particular year. In so doing, HHS is directly contravening Congress' intent by not allocating Medicare benefits on an individual basis, by not allocating benefits across years of service, and by not providing benefits for additional years of care.\\nIn promulgating the regulation, the Secretary of HHS admitted that she decided not to follow what she understood to be Congress' intent because it would be too difficult:\\nAlthough . the Act specifies that the cap amount is to be adjusted \\\"to reflect the proportion of hospice care that each such individual was provided in a previous or subsequent accounting year,\\\" such an adjustment would be difficult in that the proportion of the hospice stay occurring in any given year would not be known until the patient died or exhausted his or her hospice benefits. We believe that the proposed alternative of counting the beneficiary in the reporting period where the beneficiary used most of the days of covered hospice care will achieve the intent of the statute without being burdensome.\\n48 Fed. Reg. 38146, 38158 (Aug. 22, 1983) (emphasis added). By choosing to count beneficiaries in only the year in which HHS anticipated the majority of the hospice care would be furnished, the Secretary ignored Congress' statutory mandate. Although the Secretary's regulation initially achieved results similar to what would have been achieved under a fractional method of calculation, and with less burden on the agency, the regulation clearly did not comport with Congress' intent. This failure has become apparent in recent years as hospice stays have become longer.\\nSeveral other district courts that have addressed this issue reached the same conclusion as this Court \\u2014 that the statutory intent of Congress was clear and that the regulation does not comport with Congress' mandate. See Sojourn Care, No. 07-CV-375-GKF-PJC, at 55 (\\\"I simply don't believe that it follows the statutory mandate....\\\"); Los Angeles Haven Hospice, No. 2:08-cv-004469-GW-RZ, at 7-8 (\\\"Here, the answer under the Chevron analysis is plain and the Court need not proceed beyond the initial inquiry.... Congress has 'directly spoken' to this 'precise question.' \\\"); American Hospice, No. 1:08-cv-01879-JEO, at 58 (\\\"42 C.F.R. \\u00a7 418.309(b)(1) fails at the first step of the Chevron analysis, because it is contrary to the intent of Congress expressed in the plain and unambiguous language of the controlling statute.\\\"); Lion Health Services, 689 F.Supp.2d at 856 (\\\"Congress was clear about how the calculation should be made.\\\").\\nC. Fifth Amendment Takings Claim\\nIn its amended complaint, Plaintiff asserts that 42 C.F.R. \\u00a7 418.309(b)(1) \\\"amounts to an unlawful taking of private property for public use without just compensation in violation of the Fifth Amendment of the United States Constitution.\\\" (Doc. 11, \\u00a7 8.) In her motion for summary judgment, Defendant argues that Plaintiffs \\\"claim has no legal basis and must be dismissed.\\\" (Doc. 14, p. 13.) Plaintiff did not respond to Defendant's argument in its response.\\nThe threshold question in a Takings Clause claim is whether Plaintiff has identified a cognizable property interest. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1000, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984). \\\"To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead have a legitimate claim of entitlement to it.\\\" Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Defendant argues that where a doctor or other medical service provider voluntarily participates in a price-regulated government program (such as Medicare) in which beneficiaries are provided services and the service provider's compensation is then determined by a government statute or regulation, there can be no taking of property because there was no legal compulsion to provide the services, and therefore, no entitlement. See, e.g., Painter v. Shalala, 97 F.3d 1351, 1357-58 (10th Cir.1996) (finding physician did not have property interest in receiving Medicare payments in amount different from that set forth in fee schedule because the physician voluntarily provided the services and was aware of the amount he would be reimbursed); Garelick v. Sullivan, 987 F.2d 913, 916 (2d Cir.1993) (\\\"where a service provider voluntarily participates in a price-regulated program or activity, there is no legal compulsion to provide service and thus there can be no taking\\\"); Minn. Ass'n of Health Care Facilities, Inc. v. Minn., 742 F.2d 442, 446 (8th Cir.1984) (finding that state statute limiting fees that nursing homes may charge was not a taking because \\\"the state does not require that nursing homes admit medical assistance residents and participate in the Medicaid Program\\\"). Plaintiff has cited no contrary authority or presented any evidence to support its claim that 42 C.F.R. \\u00a7 418.309(b)(1) amounts to an unlawful taking of private property in violation of the Fifth Amendment. Therefore, Defendant's Motion for Summary Judgment with regard to Plaintiffs Fifth Amendment Takings Clause claim is granted.\\nV. RELIEF TO BE GRANTED\\nPlaintiff has requested the following relief:\\n1. A declaration that 42 C.F.R. \\u00a7 418.309(b)(1) is invalid.\\n2. A declaration that HHS' calculation of Hospice of New Mexico's cap liability for fiscal year 2006 is invalid.\\n3. A declaration that HHS' calculation of Hospice of New Mexico's cap liability for fiscal year 2007 is invalid.\\n4. An order requiring HHS to return to Hospice of New Mexico, with interest, all monies Hospice of New Mexico has paid towards repayment of the alleged 2006 and 2007 over-payments.\\n5. Pending final resolution of this matter, a preliminary injunction enjoining HHS from: (a) enforcing the 2007 repayment demand; and/or (b) calculating subsequent fiscal year alleged overpayments relating to Hospice of New Mexico pursuant to the current version of 42 C.F.R. \\u00a7 418.309(b)(1).\\n6. An order enjoining HHS from prospective use of 42 C.F.R. \\u00a7 418.309(b)(1) in calculating the hospice cap liability of Hospice of New Mexico or any other hospice provider.\\n7. An order requiring HHS to pay legal fees and costs of suit.\\n8. Such other and further relief as the Court may consider appropriate.\\n(Pl.'s First Amended Compl., Section VII. Relief Requested, \\u00b6 1-8.)\\nGranting Plaintiffs request for monetary relief would be extremely difficult for this Court and likely require extensive fact-finding and hearings. The Court has no information before it indicating that Plaintiff is entitled to a return of all, or any, of the payments it made to HHS for fiscal years 2006 and 2007. Even using a fractional method of calculation to determine Hospice of New Mexico's statutory reimbursement cap, it is possible that Plaintiff exceeded its cap for fiscal years 2006 and 2007 and HHS is entitled to a repayment of some of the Medicare benefits it paid out to Hospice of New Mexico. HHS is clearly better suited to performing these complex calculations than this Court.\\nThe Court has only found that 42 C.F.R. \\u00a7 418.309(b)(1) is invalid and Plaintiff would be better off under a fractional calculation as required by the statute. The Court was only asked by the PRRB to review the validity of the regulation. Having accomplished this task, the Court is confident that the agency will be able to determine whether Hospice of New Mexico is entitled to a monetary award, and if so, the amount of that award. Therefore, the Court denies Plaintiffs request that HHS return to Hospice of New Mexico, with interest, all monies Hospice of New Mexico has paid toward the 2006 and 2007 repayment demands. However, HHS must recalculate Hospice of New Mexico's reimbursement caps for fiscal years 2006 and 2007 using a fractional method of calculation as required by the statute and return any monies overpaid to HHS by Hospice of New Mexico for these years. Conversely, if under the recalculated reimbursement caps, Hospice of New Mexico is found to have exceeded its annual cap for either of these years and to still owe money to HHS beyond what it has already repaid, then HHS may issue a modified repayment demand.\\nThe Court now turns to Plaintiffs requested injunctive relief. In addition to an injunction against HHS from using 42 C.F.R. \\u00a7 418.309(b)(1) to calculate the hospice cap liability for Hospice of New Mexico, Plaintiff also requests that the Court impose a nationwide injunction. \\\"[I]njunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.\\\" Califano v. Yamasaki 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). Additionally, nationwide injunctive relief is discouraged where it would \\\"substantially thwart the development of important questions of law\\\" and prevent other courts from ruling on the validity of the regulation. United States v. Mendoza, 464 U.S. 154, 160, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984); see also Virginia Society for Human Life, Inc. v. Federal Election Commission, 263 F.3d 379, 393 (4th Cir.2001). Thus, injunctive relief \\\"should be carefully addressed to the circumstances of the case\\\" and not any broader than necessary \\\"to afford relief to the prevailing party.\\\" Virginia Society for Human Life, 263 F.3d at 393. Although this is clearly a nationwide problem, the Court does not have before it nationwide plaintiffs, and imposing such a broad injunction would be inappropriate.\\nThe Court does believe, however, that injunctive relief against HHS as it relates to Hospice of New Mexico is appropriate. HHS is therefore enjoined from any continued enforcement of its 2007 repayment demand against Hospice of New Mexico and from any further use of 42 C.F.R. \\u00a7 418.309(b)(1) to calculate Hospice of New Mexico's statutory reimbursement cap or to make repayment demands against Hospice of New Mexico. This limited injunctive relief adheres to the Supreme Court's requirement that \\\"injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.\\\" Califano, 442 U.S. at 702, 99 S.Ct. 2545.\\nORDER\\nWHEREFORE, a Memorandum Opinion having been entered this date, IT IS HEREBY ORDERED AND DECLARED that:\\n(1) Defendant's Motion for Summary Judgment (Doc. 13) is DENIED as it relates to Plaintiff's alleged lack of standing;\\n(2) Defendant's Motion for Summary Judgment (Doc. 13) is GRANTED as it relates to Plaintiffs Fifth Amendment Takings Clause claim;\\n(3) 42 C.F.R. \\u00a7 418.309(b)(1) is contrary to Congress' statutory intent and invalid, and therefore, Plaintiffs Motion for Summary Judgment (Doc. 15) is GRANTED;\\n(4) HHS is enjoined from any continued enforcement of its 2007 repayment demand against Hospice of New Mexico;\\n(5) HHS is enjoined from any further use of 42 C.F.R. \\u00a7 418.309(b)(1) to calculate Hospice of New Mexico's statutory reimbursement cap for any past, present, or future accounting year;\\n(6) HHS is enjoined from any further use of 42 C.F.R. \\u00a7 418.309(b)(1) to make repayment demands against Hospice of New Mexico for any past, present, or future accounting year; and\\n(7) HHS is to recalculate Hospice of New Mexico's statutory reimbursement caps for fiscal years 2006 and 2007 and return any monies overpaid to HHS by Hospice of New Mexico.\\n. The payments made to hospice care providers, the reimbursement cap calculations, and the repayment demands are actually handled by a fiscal intermediary. A fiscal intermediary is an insurance company that contracts with the Secretary of HHS to act on her behalf in processing, reviewing, and paying Medicare claims submitted by providers. See Baylor Univ. Med. Ctr. v. Heckler, 758 F.2d 1052, 1056 n. 5 (5th Cir.1985) (citing 42 U.S.C. \\u00a7 1395h).\\n. From Plaintiff's calculations, it appears that HHS underestimated the cap by $531,529.07 for fiscal year 2007. When this is subtracted from the repayment demand made by HHS of $1,010,593 for fiscal year 2007, it appears that Plaintiff would still owe Medicare $479,063.93.\\n. To be fair to the Secretary, Congress originally limited hospice care benefits to a 210 day maximum. It was not until 1990 that Congress amended the Medicare Act to allow for longer periods of hospice care. See Pub.L. 101-508, \\u00a7 4006(a) (1990). However, by continuing to count beneficiaries in only one year, the Secretary has ignored the situation in which a terminally ill patient receives hospice care over a number of years. As beneficiaries elect to receive hospice care for increasingly longer periods, it seems logical that this type of situation will become more and more common. The spreadsheet provided by Hospice of New Mexico which accompanied its Supplemental Declaration (Doc. 24) indicates several Hospice of New Mexico patients that received care over two, three, four, or even five year periods.\"}"
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+"{\"id\": \"4019147\", \"name\": \"Stephen B. TAYLOR and Moss Rehabilitation Hospital v. PHOENIX MUTUAL LIFE INS. CO.\", \"name_abbreviation\": \"Taylor v. Phoenix Mutual Life Ins.\", \"decision_date\": \"1978-05-26\", \"docket_number\": \"Civ. A. No. 77-1322\", \"first_page\": \"372\", \"last_page\": \"381\", \"citations\": \"453 F. Supp. 372\", \"volume\": \"453\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the Eastern District of Pennsylvania\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:21:48.187803+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Stephen B. TAYLOR and Moss Rehabilitation Hospital v. PHOENIX MUTUAL LIFE INS. CO.\", \"head_matter\": \"Stephen B. TAYLOR and Moss Rehabilitation Hospital v. PHOENIX MUTUAL LIFE INS. CO.\\nCiv. A. No. 77-1322.\\nUnited States District Court, E. D. Pennsylvania.\\nMay 26, 1978.\\nA. Grant Sprecher, Philadelphia, Pa., for plaintiffs.\\nWilliam H. Lowery, Philadelphia, Pa., for defendant.\", \"word_count\": \"4851\", \"char_count\": \"31487\", \"text\": \"MEMORANDUM AND ORDER\\nTROUTMAN, District Judge.\\nPlaintiff, Stephen B. Taylor, (Taylor) is an individual who was severely injured in a motorcycle accident on October 6, 1974, as the result of which he fractured his spine and is today confined to a wheelchair. He was hospitalized at Chestnut Hill Hospital from the date of accident until November 27, 1974, when he was transferred to Moss Rehabilitation Hospital (Moss), also a plaintiff herein, where bills were incurred in the amount of approximately $12,000.00 for which recovery is sought under a group insurance policy issued by the defendant, Phoenix Mutual Life Insurance Company (Phoenix) to the Trustees of Service Industry Group Service Fund, of which Taylor Exterminating Company, the employer of Stephen B. Taylor, was a member at the time of his unfortunate injury.\\nBased upon a seventeen-page stipulation of facts, consisting of seventy-two paragraphs, plus certain supplemental affidavits and other exhibits, presenting all relevant and material facts to the Court, both the plaintiffs and the defendant, respectively, seek partial summary judgment.\\nIn construing and interpreting the policy, the insurance contract involved, certain established legal principles are applicable. Insurance contracts are contracts of adhesion, where the insurer prepares the policy for the purchaser having no bargaining power. Where a dispute arises, such contracts are construed strictly against the insurer. Hionis v. Northern Mutual Insurance Company, 230 Pa.Super. 511, 327 A.2d 363 (1974). If a defense is based upon an exception or an exclusion in a policy, the defense is an affirmative one and the burden is on the defendant to establish it. Weissman v. Prashker, 405 Pa. 226, 175 A.2d 63 (1961).\\nFurthermore, an insurance contract will be given a reasonable interpretation in light of the particular subject-matter, situation and contemplation of the parties. Daburlos v. Commercial Insurance Company of Newark, New Jersey, 381 F.Supp. 393 (E.D.Pa.1974), affirmed, 521 F.2d 18 (3rd Cir. 1975). Pennsylvania courts will rely on public policy in overriding explicit terms in the insurance contract, at least when the contract terms would operate to defeat the reasonable expectations of the insured. Sands v. Granite Mutual Insurance Co., 232 Pa.Super. 70, 331 A.2d 711 (1974).\\nWhile it is true that where a doubt exists as to the meaning of the language in an insurance contract such language is construed in favor of the insured, it is also true that where the language of the policy is clear and unambiguous, it cannot be construed to mean other than what it says. Such clear language must be given the plain and ordinary meaning of the terms. Where there is no ambiguity or lack of clarity, the law does not permit looking beyond the language of the contract. Southeastern Pennsylvania Transp. Auth. v. Transit Casualty Co., 412 F.Supp. 839 (E.D. Pa.1976).\\nThe sole issue before the Court is whether Moss is a \\\"hospital\\\" within the definition of that term as used in the group policy issued and whether Moss is, accordingly, entitled to reimbursement for the cost of services rendered to Taylor by Moss during his stay at Moss from November 27, 1974, to March 20, 1975. In reaching its decision the Court will consider the \\\"stipulation of facts\\\" filed by the parties, and various affidavits, depositions and other exhibits called to the attention of the Court in full and complete memoranda submitted to the Court by counsel in support of the motions filed. Not at issue at this time are allegations that an insurance agent misrepresented to Taylor the extent of the coverage.\\nPertinent to the factual considerations involved and supplementing the stipulation of facts, we quote from pages 3 and 4 of plaintiffs' brief as follows:\\n\\\"Plaintiffs, in addition to the Stipulation of Facts attached hereto as Exhibit 'A' the affidavits of James R. Neely of the Hospital Association of Pennsylvania which indicates that Moss would be classified by HAP as a short term hospital if their average patient stay was, today, less than thirty days, a fact which has been stipulated to in paragraph 50 of the Stipulation.\\n\\\"Stephen B. Taylor's physician at Moss was Doctor LaFontant, whose affidavit is attached hereto as Exhibit 'B'. Doctor LaFontant affirms that the treatment received by Taylor at Moss was necessary not only to resolve existing medical problems at admission, including bed sores and a bladder infection, but also was medically necessary to prevent Mr. Taylor's certain lapse into acute medical distress. The parties have, in this regard, stipulated to the improvement of Taylor's overall physical condition at Moss as the result of his treatment.\\n\\\"In summary Taylor was severely injured in a motorcycle accident on October 6, 1974 as the result of which he fractured his spine, lost the use of his legs, and is today confined to a wheelchair. He was hospitalized at Chestnut Hill Hospital from October 6, 1974 until November 27, 1974 when he was transferred directly to Moss for further treatment until March 20, 1975.\\n\\\"At the time of his transfer to Moss, Taylor's overall condition had stabilized though he was afflicted with bed sores, a bladder infection and phlebitis. Mr. Taylor was completely bedridden at the time of his transfer, was catheterized and incontinent. During his stay at Moss Mr. Taylor was cured of his bed sores and bladder infection \\u2014 which required a eystoscopic examination at Moss. Additionally Taylor was taught to move himself into a wheelchair and to otherwise attend to his personal needs. Services including occupational therapy, physical therapy, psychological counseling and testing were provided to Taylor. Upon his admission Taylor assigned his rights under Phoenix's policy to Moss.\\\"\\nLikewise supplementing the stipulation are the following facts also called to the Court's attention by the defendant:\\n\\\"Taylor was hospitalized at Chestnut Hill Hospital immediately after his accident, and during his stay there he had neurosurgery performed on his spine. Taylor remained in Chestnut Hill Hospital from October 6,1974, through November 27, 1974. Taylor was then moved to Moss because he needed, in his own words, '(Rehabilitation, just to show me how to get around again'. (Stephen Taylor Depos. at 7). Taylor remained at Moss from November 27, 1974, to March 20, 1975. During his stay at Moss, Taylor received incidental medical attention; but he was in Moss primarily for rehabilitative care. At Moss, Taylor learned how to get out of bed, get dressed, to cook, and 'just more or less how to take care of myself again.' (Stephen Taylor Depos. at 8-9) Even Taylor's family realized that the bladder and phlebitis treatment he received at Moss could have been handled in Chestnut Hill Hospital and that 'the primary purpose for being transferred to Moss was (so) that he could get rehabilitative care . . .'. (Joan Taylor Depos. at 30-31) After his release from Moss on March 20,1975, Taylor continued to incur medical expenses. In 1977 he underwent spinal fusion surgery at St. Francis Hospital in Wilmington, Delaware.\\n\\\"Phoenix has already paid for the hospitalization charges at Chestnut Hill and at St. Francis, as well as for a great deal of other medical expenses. (Stipulation, \\u00b6 64, 71, 72 and Joan Taylor Depos. at 32). Phoenix has not paid for Taylor's expenses while at Moss. Phoenix does not believe that Moss is a hospital covered by Taylor's policy; and the parties have stipulated that Moss is classified not as a short-term general hospital, but rather as a long-term specialty hospital which performs no surgery and is primarily a place for rehabilitative care. (Stipulation, \\u00b6 4, 32, 35, 52, 54, and 61).\\\"\\nThe definition of the term \\\"hospital\\\" as used in the policy is found in paragraph 70 of the stipulation of facts as follows:\\n\\\"RELEVANT POLICY PROVISIONS\\n\\\"COVERED EXPENSES\\nCovered expenses are the reasonable charges for such of the following services and supplies as are recommended or approved by a physician, surgeon or dentist as essential for the necessary treatment of a Covered Person's injury or sickness for which insurance is afforded hereunder, provided that a charge shall be deemed unreasonable if it exceeds the prevailing average charge (as determined by Phoenix Mutual) for the particular treatment, care, service, or supply made in the locality where the treatment, care, service or supply was received, taking into consideration the nature and severity of the injury or sickness in connection with which such charge was made:\\n\\\"(1) Hospital Charges: Charges made by a hospital, in its own behalf, .\\n\\\"DEFINITIONS . . .\\n'Hospital' means an institution which is engaged primarily in providing medical care and treatment to sick and injured persons on an in-patient basis and which fully meets all the requirements set forth in (1) or (2) below:\\n\\\"(1) It is a short term, acute, general hospital which (a) is primarily engaged in providing by or under the continuous supervision of physicians, to in-patients, diagnostic services and therapeutic services for diagnosis, treatment, and care of injured or sick persons, (b) has organized departments of medicine and major surgery, (c) has a requirement that every patient must be under the care of a physician or dentist, (d) provides twenty-four hour nursing service by or under the supervision of a registered professional nurse (R.N.), (e) has in effect a hospital utilization review plan meeting the standards set forth in section 1861(k) of United States Public Law 89-97 (Medicare) as amended from time to time, (f) is duly licensed by the agency responsible for licensing such hospitals, and (g) is not, other than incidentally, a place for rest, a place for the aged, a place for drug addicts or alcoholics, or a place for convalescent, custodial, education or rehabilitative care.\\n\\\"(2) It is a psychiatric hospital as defined by Medicare, qualified to participate in and eligible to receive payments under and in accordance with the provisions of Medicare . . .\\\"\\nAlthough we have considered the entire stipulation, particularly pertinent to our considerations are the following paragraphs thereof:\\n\\\"1. Moss Rehabilitation Hospital requires that every patient be under the continuous supervision of a physician or dentist.\\n\\\"2. Moss Rehabilitation Hospital provides twenty-four hour nursing service by or under the supervision of a registered professional nurse (R.N.).\\n\\\"3. Moss Rehabilitation Hospital has in effect a 'utilization review plan' meeting the standards set forth in Section 1861(k) of the United States Public Law 89-97 (Medicare).\\n\\\"4. Moss Rehabilitation Hospital is primarily a place for rehabilitative care. (This stipulation does not contain a definition of 'rehabilitative care'.) Moss Rehabilitation Hospital provides diagnostic and therapeutic services to patients. If a patient who is confined for rehabilitative care has or develops conditions which require diagnostic and therapeutic services, these services are either provided at Moss Rehabilitation Hospital or the patients are transferred elsewhere for treatment.\\n\\\"5. Moss Rehabilitation Hospital is not a place, except incidentally, for rest, a place for the aged, a place for convalescent care, or a place for custodial care.\\n\\\"6. If a patient who is admitted to Moss Rehabilitation Hospital for rehabilitative care has or develops an acute illness, a diagnosis is made at Moss Rehabilitation Hospital and appropriate treatment is ordered, which treatment may consist of transfer to another institution.\\n\\\"7. Moss Rehabilitation Hospital and Albert Einstein Medical Center (\\\"Einstein\\\"), a short-term, acute care, general hospital, are separate corporate entities, have their facilities on adjoining parcels of real estate, and are physically connected by means of a corridor. The real estate on which Moss Rehabilitation Hospital is situated is owned by Einstein and leased to Moss Rehabilitation Hospital by Einstein.\\n\\\"9. Some patients who are admitted to Moss Rehabilitation Hospital for rehabilitative care may subsequently require surgery. Those requiring surgery may receive it at Einstein or may receive it at some other acute care, general hospital. If they receive surgery at some other hospital, they are discharged to that hospital. If they receive surgery at Einstein, they are discharged to Einstein if they remain there for post-operative recovery or treatment. If they receive surgery at Einstein and are returned the same day to Moss Rehabilitation Hospital, they are not formally discharged from Moss Rehabilitation Hospital. The patients of Moss Rehabilitation Hospital who are operated on at Einstein and who receive post-operative care at Moss Rehabilitation Hospital are billed by Moss Rehabilitation Hospital for the surgery.\\nsf:\\n\\\"11. Members of the staff of Einstein are accorded associate staff privileges at Moss Rehabilitation Hospital upon request. (Jeanes Hospital and the American Oncologic Hospital have a similar arrangement.) The Statement of Relationships referred to above provides that the physicians on the staff of Einstein have the privilege of admitting patients to Moss Rehabilitation Hospital and Willowcrest. It is a common practice for physicians on the medical staff of an acute care, general hospital, who are also on the staff of a specialty hospital or an extended care facility, to admit patients to these specialty hospitals or to extended care facilities. The Medical Staff of Moss Rehabilitation Hospital is selected by Moss Rehabilitation Hospital in accordance with its bylaws. There are three categories of staff membership at Moss Rehabilitation Hospital \\u2014 active, associate, and honorary. The members of the associate staff must be members of the staff of Einstein or of another affiliated hospital.\\n\\n\\\"22. Moss Rehabilitation Hospital was incorporated in Pennsylvania on July 17, 1959, 'to provide rehabilitation and medical care for chronically ill persons'.\\n* :}\\u00ab sfc sjc\\n\\\"26. Bylaws of Moss Rehabilitation Hospital set forth that the purpose of the corporation is 'to provide physical restoration services for disabled and chronically ill persons through an integrated program of medical, psychological, social and vocational services under competent professional supervision.'\\n\\\"27. Moss Rehabilitation Hospital is a totally separate corporate entity from Einstein; Moss Rehabilitation Hospital receives none of its operating or other funds from Einstein; the two institutions have separate Boards of Directors with no interlock; and the two institutions have separate Medical Staffs, with each staff organized under separate Staff Bylaws. See also No. 11 above.\\n\\n\\\"29. Hospitals are also classified as either (a) short-term acute care hospitals or (b) long-term care hospitals. Short-term acute care hospitals treat patients for diseases or conditions that ordinarily require hospitalization for appreciably shorter periods of time than that required in a long-term care hospital.\\n\\\"30. Einstein is a general hospital rendering short-term, acute care for patients.\\n\\n\\\"32. Moss Rehabilitation Hospital is a specialty hospital rendering rehabilitative care for its patients.\\n\\\"33. Short-term, acute care, general hospitals have organized departments of medicine and surgery.\\n\\\"34. Moss Rehabilitation Hospital has no department of medicine or surgery. Rather, as stat\\u00e9d in its Staff Bylaws:\\n\\\" 'As the Hospital is a specialized hospital to which all patients are admitted for the purpose of rehabilitation, the customary medical departmentalization of a general hospital does not apply as an organizational form.'\\n\\\"Thus Moss Rehabilitation Hospital is organized in a single department called 'Rehabilitation Medicine'. However, the Moss Rehabilitation Hospital active and associate staffs together include members from sub-specialties of medicine.\\n\\\"35. Moss Rehabilitation Hospital has no emergency room and performs no surgery.\\n\\\"36. Moss Rehabilitation Hospital would not admit someone who was suffering a heart attack.\\n* # # *\\n\\\"39. Moss Rehabilitation Hospital is a place where patients go primarily for rehabilitative care, which care is designed to restore a patient to his maximum function.\\n\\\"40. At Moss Rehabilitation Hospital:\\n\\\" 'The Medical Director (is) responsible for the clinical organization of the Hospital and for the supervision of professional therapeutic departments, i. e., physical therapy, occupational therapy, speech therapy, psychology, social service, etc.'\\n\\\"Some of the psychological services and occupational therapy rendered to patients includes psychological counseling, psychological testing, and vocational evaluation.\\n\\\"41. Most of the services referred to in No. 40 above are not offered patients in the average short-term acute care, general hospital.\\n\\\"42. Plaintiff Stephen B. Taylor, while a patient at Moss Rehabilitation Hospital, received services, including treatment, from substantially all the therapists referred to in No. 40 above.\\n\\\"47. On the basis of information provided by the hospitals themselves, the American Hospital Association (AHA), the national organization for all hospitals in the United States, classifies Moss Rehabilitation Hospital for purposes of service to patients as a rehabilitation facility, and not as a medical and surgical facility.\\n\\n\\\"49. The AHA classifies a hospital as either long-term or short-term depending on whether the average length of stay of more than 50% of its patients is 30 days or more, in which event it is classified as a long-term hospital.\\n\\\"50. The average length of stay of patients at Moss Rehabilitation Hospital is 28 days, and under the AHA method of classification, Moss Rehabilitation Hospital is classified as a short-term hospital.\\n\\\"51. The average length of stay of patients at acute care, general hospitals in the Philadelphia area, according to the Delaware Valley Hospital Council, is approximately 8.5 days.\\n\\\"52. On the basis of information provided by the hospitals themselves and verified by the Association, the Hospital Association of Pennsylvania (HAP), the statewide organization for hospitals in Pennsylvania, classifies Moss Rehabilitation Hospital as a long-term rehabilitation hospital; but HAP does not define 'long-term' in relation to the particular number of days for the average length of stay. The parties hereto do not know what specific criteria HAP utilizes to classify hospitals on the basis of information provided by those hospitals. * #\\n\\\"54. On the basis of information provided by the hospitals themselves, the Delaware Valley Hospital Council (DVHC), the organization of all hospitals in the Greater Philadelphia Area, classifies Moss Rehabilitation Hospital as a long-term, specialty (rehabilitation) hospital; but the DVHC does not define 'long-term' in relation to the particular number of days for the average length of stay. The parties hereto do not know what specific criteria DVHC uti lizes to classify hospitals on the basis of information provided by those hospitals.\\nJfc * sfc *\\n\\\"61. On the basis of surveys, the Regional Comprehensive Health Planning Agency (RCHP), which succeeded to the planning responsibilities of HSC, classifies Moss Rehabilitation Hospital as a long-term, specialty (rehabilitation) hospital.\\\"\\nReferring specifically to the definition of the term \\\"hospital\\\" as used in the policy and quoted in paragraph 70 of the stipulation, supra, it will be noted that the policy expressly lists eight criteria which an institution must satisfy to qualify as a \\\"hospital\\\" and thus qualify for policy coverage. The hospital must:\\n1. Be a short-term, acute general hospital; and\\n2. Be primarily engaged in providing diagnostic and therapeutic service to in-patients under the continuous supervision of physicians; and\\n3. Have organized departments of medicine and major surgery; and\\n4. Have every patient under the care of a physician; and\\n5. Have twenty-four hour nursing service under the supervision of a registered nurse (R.N.); and\\n6. Have a hospital utilization review plan meeting the standards set forth in Section 1861(k) of United States Public Law 89-97 (Medicare); and\\n7. Be duly licensed; and\\n8. Not be, \\\"other than incidentally\\\", a place for the aged, drug addicts, alcoholics, rest, convalescence, or custodial, educational or rehabilitative care.\\nThe defendant concedes that Moss meets criteria 2, 4, 5, 6, and 7. It denies that criteria 1, 3 and 8 are met.\\nIn considering the issues thus raised it should be noted that while the parties have agreed upon the long and involved stipulation, requiring a great deal of study, research, effort, and patience, all in an effort to ease the Court's task, they have then proceeded to complicate the task by forthwith diluting the stipulation with affidavits and other exhibits varying some natural inferences flowing from the stipulation and basing conflicting arguments thereon.\\nFor example, considering criterion 1, the defendant, notwithstanding paragraphs 49, 50 and 51 of the stipulation which suggest that Moss is a \\\"short-term\\\" hospital because the average length of stay is less than 30 days, contends, on the basis of its Exhibit 2, that during the relevant period 1974H975, the average length of stay was 30 days and that Moss was, therefore, a \\\"long-term\\\" hospital. We are reluctant to consider such statistical data dehors the record in determining the \\\"long-term, short-term\\\" issue. Rather on the basis of the stipulation we conclude that Moss qualifies as \\\"short-term\\\" within the terms of the policy.\\nHowever, it does not, in our opinion meet the \\\"acute\\\" requirements of the policy. Paragraph 32 of the stipulation recognizes that Moss renders \\\"rehabilitative care for its patients\\\". Obviously, \\\"rehabilitative\\\" care is at the opposite end of the spectrum from \\\"acute\\\" care. \\\"Acute\\\" care suggests a crisis or the need for immediate care and attention, whereas \\\"rehabilitative\\\" care suggests long-term treatment or care designed to restore a patient to his or her former capacity, usually requiring less specialized medical skills of longer duration, although of no less importance to the patient. Illustrating that Moss does not meet the \\\"acute\\\" requirement are paragraphs 35 and 36 of the stipulation stating that Moss \\\"has no emergency room\\\" and would not accept a patient \\\"suffering a heart attack\\\". Thus, we conclude that Moss does not meet the \\\"acute\\\" requirement of criterion 1.\\nAdditionally, criterion 1 requires that the institution be a \\\"general\\\" hospital, whereas paragraph 32 of the stipulation states that Moss is a \\\"specialty\\\" hospital \\\"rendering rehabilitative care\\\". Therefore, assuming that Moss is a \\\"long-term\\\" hospital as contended by plaintiffs, it is not an \\\"acute, general hospital\\\" as required by the definitional terms of the policy.\\nCriterion 3 unequivocally requires that Moss have organized departments of medicine and major surgery. Paragraph 34 of the stipulation states that Moss \\\"has no department of medicine or surgery\\\" much less \\\"organized\\\" departments in those specified fields. Such clear and unequivocal language should quickly and conclusively resolve the issue. Not so. Plaintiffs contend that Moss qualifies under the terms of the policy because while \\\"organized in a single department called 'Rehabilitation Medicine' with active and associate staffs including members from sub-specialties of medicine\\\" (plaintiffs' brief, page 22) and while no surgery is performed at Moss, its patients receive surgery and other required services at the Albert Einstein Medical Center (Einstein), which is physically connected by a corridor to Moss Rehabilitation Hospital.\\\" Moss and Einstein have a written statement of relationships coordinating their facilities and services at Einstein when not available at Moss. Plaintiffs rely upon cases such as Reserve Life Insurance Company v. Marr, 254 F.2d 289 (9th Cir. 1958); Reserve Life Insurance Company v. Mattocks, 6 Ariz. App. 450, 433 P.2d 303 (1967); Raynor v. American Heritage Life Insurance Co., 123 Ga.App. 247, 180 S.E.2d 248 (1971); McKinney v. American Security Life Insurance Co., 76 So.2d 630 (La.App.1955); Meyers v. Aetna Life Insurance Company, 39 D & C2d 1, affirmed, 207 Pa.Super. 526, 218 A.2d 851 (1966). Relying upon such cases, plaintiffs contend that even though Moss is not departmentalized and does not, in its facilities, provide the services in question, such services are provided through its affiliation with Einstein. They thus contend that Moss varies only \\\"in its organizational form\\\" and, therefore, in fact, meets the requirements of the policy.\\nAll this temptingly leads far afield from the real issue. The question is not what services were rendered, the quality thereof, how they were rendered, by whom they were rendered or the organizational background making such services possible at this institution. The issue is whether Moss is a \\\"hospital\\\" within the meaning of that term as defined by the policy. However, a field trip cannot be avoided if one is to follow the cases upon which plaintiffs rely because in none of those cases were the definitional provisions of the policy the same as those here involved nor were they as clear and precise. For example, as defendant points out, in Meyers the policy provided:\\n\\\"The term 'hospital' means only an institution which is engaged primarily in providing, for compensation from its patients, facilities for diagnosis and treatment of bed patients under the supervision of a staff of doctors and which provides the services of registered nurses (R.N.) 24 hours a day. (39 D & C2d at 3).\\n\\\" the policy in Meyers contained no limitation to short-term general hospitals, no requirement of major surgical facilities, and no clause excluding institutions designed primarily for rehabilitative care.\\\"\\nFor example, in Marr the Court stated:\\n\\\"There is no requirement in the policies that the insured be confined in a 'general' hospital, nor is there any exclusion from the term 'hospital' of a psychiatric or nursing hospital (254 F.2d at 290)\\nHere, the policy contains positive requirements that the \\\"hospital\\\" be a \\\"general\\\" hospital, not primarily devoted to rehabilitative care. Thus, Marr is not controlling. For similar reasons other authorities cited and relied upon by plaintiffs are distinguishable or otherwise not controlling and we decline to follow them.\\nWe are thus brought to criterion 8 requiring that \\\"hospital\\\" as defined in the policy not be \\\"other than incidentally\\\" a place for the aged, drug addicts, alcoholics, rest, convalescence or custodial, educational or rehabilitative care. Common sense dictates that any institution dealing with the acute illnesses of the human body must necessarily engage in a certain amount of \\\"rehabilitative care\\\". Full recovery requires both acute care and rehabilitative care. Some institutions are necessarily designed pri marily to provide rehabilitative care and it is this type of institution that is not included within the policy here involved. Not excluded is the rehabilitative care which necessarily follows acute treatment and is \\\"incidental\\\" thereto. Both types of institution are desirable and necessary. Insurance policies can be and are written to cover either or both. In the policy here involved \\\"rehabilitative\\\" care other than that \\\"incidental\\\" to acute care is clearly excluded. Turning again to the stipulation of facts, and particularly paragraph 4 thereof, we find \\\"Moss Rehabilitation Hospital is primarily a place for rehabilitative care. (This stipulation does not contain a definition of 'rehabilitative care').\\\"\\nPlaintiffs stress, by affidavit, that the plaintiff Taylor received specialized treatment at Moss in excess of that normally included in \\\"rehabilitative care\\\" and thus contend that coverage exists. The defendant counters with other evidence such as the deposition of the plaintiff Taylor. Thus, both parties dilute or supplement the stipulation of facts. The Court's task is thus complicated. However, the resulting conflicts do not relate to material facts precluding the proper consideration of the cross-motions for partial summary judgment here filed. Accordingly, on the basis of the entire record before us and giving due consideration to the able presentation of counsel, we conclude that Moss was, as the stipulation unequivocally stated, \\\"primarily a place for rehabilitative care\\\" and, therefore, did not meet criterion 8.\\nFinally, plaintiffs urge that public policy requires that defendant provide reimbursement to Moss for the hospitalization of the plaintiff Taylor. Considering Taylor's serious and permanent condition and the cost of treatment and rehabilitation, natural feelings and instincts dictate that every effort be made to ease his burdens. But public policy does not so dictate. Rather, public policy dictates that legitimate and unambiguous contracts entered into without fraud, duress, coercion or improper conduct shall be fairly interpreted and enforced.\\nIn Pennsylvania Manufacturers' Association Insurance Company v. Aetna Casualty and Surety Insurance Company, 426 Pa. 453, 233 A.2d 548 (1967), the Court, in affirming a judgment on the pleadings on the definition of \\\"insured\\\", quoted approvingly from Topkis v. Rosenzweig, 333 Pa. 529, 5 A.2d 100 (1939):\\n\\\"It is settled that where the language of the policy is clear and unambiguous it cannot be construed to mean otherwise than what it says.\\\" (426 Pa. at 457, 233 A.2d at 551).\\nOther authorities agree. Volume 1 of Couch on Insurance 2d \\u00a7 15:37 states:\\n\\\"It is the duty of the courts in interpreting insurance contracts to enforce and carry out the contract which the parties have made, without importing anything into the contract by construction contrary to its express terms, or the plain meaning of its terms, or attempting to make a better or different contract. .\\nIf the terms of the contract are clear and express, the courts cannot extend or enlarge the contract by implication or construction so as to embrace a risk, object, or limitation distinct from that originally contemplated and not included in the express provisions.\\\" (1 Couch at 709-11) It is a recognized principle of law that:\\n\\\"Insurance companies have the same rights as individuals to limit their liability and to impose whatever conditions they please upon their obligations, not inconsistent with public policy or statutory provisions.\\\" (2 Couch on Insurance \\u00a7 19:64, at 204)\\nThere are a multitude of types of insurance, each with its own unique provisions, coverage rates and protected risks. The consumer is free to contract for the insurance he wants, but he is not free to expect that because he has an insurance policy, he is protected against all risks.\\nRegrettably, the treatment at Moss was not covered by the policy here involved. The extended and persuasive arguments advanced by plaintiffs' counsel must fail in the face of the clear and precise provisions of the policy.\\nWe shall grant defendant's motion for partial summary judgment and deny plaintiffs' motion for partial summary judgment.\\n. Plaintiffs have also diluted the stipulation by submitting various affidavits.\"}"
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+"{\"id\": \"4189937\", \"name\": \"LOMBARD et al. v. COE, Com'r of Patents\", \"name_abbreviation\": \"Lombard v. Coe\", \"decision_date\": \"1940-06-11\", \"docket_number\": \"Civ. No. 51\", \"first_page\": \"440\", \"last_page\": \"441\", \"citations\": \"33 F. Supp. 440\", \"volume\": \"33\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the District of Columbia\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:13:31.115817+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LOMBARD et al. v. COE, Com\\u2019r of Patents.\", \"head_matter\": \"LOMBARD et al. v. COE, Com\\u2019r of Patents.\\nCiv. No. 51.\\nDistrict Court of the United States for the District of Columbia.\\nJune 11, 1940.\\nJ. Harold Kilcoyne and Paul A. Blair, both of Washington, D. C. (George Crompton, Jr., of Worcester, Mass., of counsel), for plaintiffs.\\nW. W. Cochran and E. L. Reynolds, both of Washington, D. C., for defendant.\", \"word_count\": \"831\", \"char_count\": \"4933\", \"text\": \"LUHRING, Justice.\\nThe plaintiffs seek the issuance of a patent pursuant to the provisions of 35 U.S.C. \\u00a7 63, 35 U.S.C.A. \\u00a7 63, for an \\\"abrasive article and method of making the same.\\\"\\nThe claims in issue are numbered respectively 3, 5, 11, 12, 13, 14, 15 and 16. They were denied by the Patent Office tribunals on the ground that they were un patentable in view of the prior art as exemplified in the following patents:\\nVan Derburgh, Reissue, 2,501, March 5, 1867\\nWelch, 1,833,099, Nov. 24, 1931\\nKrusell, 1,939,991, Dec. 19, 1933\\nBenner et al., 1,918,242, July 18, 1933\\nPoulain, British, 368,322, Nov. 27, 1930\\nGoldstein, French, 547,303, Sept. 16, 1922\\nThe alleged invention relates to an abrasive article and a method of making it. The article consists of diamond particles united by a ceramic bond containing a considerable amount of B2O3. The ingredients of this bond are so selected that it will melt at about 1000\\u00b0 C. to a sufficient extent to form a proper bond with the diamond particles. The bonding takes place in a neutral or reducing atmosphere.\\nThe defendant, Commissioner of Patents, takes the position that the idea of forming an abrasive article of diamond particles united by a ceramic bond is old, as shown by the British patent to Poulain and that the plaintiffs have merely employed, in Poulain's process, a bond of a particular composition, this bond being old as shown in the Benner et al patent. It is urged that the use of Benner's bond in the Poulain process would satisfy all the claims in suit, if a neutral or reducing atmosphere were used, and that such atmospheres are conventionally employed in industrial processes and are old in the abrasive art as shown by Van Derburgh, Welch, Krusell and Gold-stein.\\nIt is to be noted that no one reference embodies or anticipates the plaintiffs' invention. The Examiner, for example, rejected claim 5 \\\"as presenting nothing patentable over patent to Poulain in view of patent to Benner et al. and either of patents to Welch or Krusell.\\\" To justify the rejection of the claims it was necessary for the Examiner to combine a number of prior art patents. He points out that a part of the invention is found -in one patent, and another part in another, and still another part in a third or fourth one, and then draws the conclusion that the applicant is not the original or first inventor. This is not proper. Bates v. Coe, 98 U.S. 31, 25 L.Ed. 68.\\nThe primary reference is Poulain, but that patent is inoperative as the evidence clearly shows. In that process a temperature of about 1250\\u00b0 C. is necessary and such heat is destructive of the diamond particles. This is also true of the Benner bonding material. It will not soften sufficiently to unite the diamond particles until a temperature has been reached which will destroy them.\\nThe plaintiffs have succeeded in successfully bonding diamonds with a ceramic bond while maintaining the diamond granules unburned or unoxidized to any detrimental extent. The ceramic bond cooperates with the diamonds to form a grinding wheel and the result is a useful article. The use of a non-oxidizing or reducing atmosphere or an inert gas definitely cooperates with the temperature employed to prevent burning of the diamonds. The specific temperature limitation likewise cooperates with the diamonds to prevent destruction thereof by graphitization. And also the use of a substantial amount of boric oxide B2O3 cooperates to lower the fusing point of the ceramic sufficiently to permit bonding at the low temperature employed.\\nThe defendant quotes from page 5, lines 12 to 16, of the application, as follows:\\n\\\" the softening temperatures are generally of the order of 1000\\u00b0 C. and below.\\n\\\"It must be understood, however, that ceramics which soften or fuse at much higher temperatures may be used to carry out the invention.\\\"\\nThe evidence discloses that a much higher temperature than 1000\\u00b0 C. can not be employed without graphitization. This statement in the application may be treated as surplusage, since the applicant's preferred embodiment gives a good result.\\nIt\\\" is not deemed necessary to discuss the references in detail. The prior art patents have been carefully explained and digested by the expert witnesses of the plaintiffs. Suffice to say that the' court has come to the conclusion that the plaintiffs are entitled to an allowance of the claims in issue.\\nIt is so ordered and counsel for plaintiffs will prepare and submit appropriate findings of fact and conclusions of law, together with judgment authorizing and directing the defendant to issue patent.\"}"
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+"{\"id\": \"4211530\", \"name\": \"UNITED STATES v. NORTHERN PAC. RY. CO. et al. NORTHERN PAC. RY. CO. et al. v. UNITED STATES\", \"name_abbreviation\": \"United States v. Nothern Pac. Ry. Co.\", \"decision_date\": \"1941-08-28\", \"docket_number\": \"No. E-4389\", \"first_page\": \"273\", \"last_page\": \"291\", \"citations\": \"41 F. Supp. 273\", \"volume\": \"41\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the Eastern District of Washington\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T23:06:01.124699+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"UNITED STATES v. NORTHERN PAC. RY. CO. et al. NORTHERN PAC. RY. CO. et al. v. UNITED STATES.\", \"head_matter\": \"UNITED STATES v. NORTHERN PAC. RY. CO. et al. NORTHERN PAC. RY. CO. et al. v. UNITED STATES.\\nNo. E-4389.\\nDistrict Court, E. D. Washington, N. D.\\nAug. 28, 1941.\\nNorman Littell, Asst. Atty. Gen., \\u00e1nd E. E. Danly and Robert E. Mulroney, Sp. Assts. to Atty. Gen., for plaintiff.\\nL. B. da Ponte, General Counsel, of St. Paul, Minn., Robert S. Macfarlane, Western Counsel, of Seattle, Wash., and F. J. McKevitt, District Counsel, of Spokane, Wash., for defendants Northern Pac. Ry. Co.\\nAlfred N. Hueston, of New York City, for defendant Bankers Trust Co.\\nJohn B. Marsh, of New York City, for defendant City Bank Farmers Trust Co.\\nThomas Boylan, of Philadelphia, Pa., apd R. L. Edmiston, of Spokane, Wash., for intervenors Chas. E. Schmidt, et al.\", \"word_count\": \"13108\", \"char_count\": \"76780\", \"text\": \"SCHWELLENBACH, District Judge.\\nThis case is now before this Court on mandates from the Supreme Court of the United States dismissing the appeal of the defendants and on the appeal of the plaintiff remanding the cause to this Court for further proceedings as indicated in the Opinion of the Court filed December 16, 1940. That opinion is reported in 311 U.S. at page 317, 61 S.Ct. 264, 85 L.Ed. 210.\\nThere has been filed with this Court a petition for leave to intervene by one Charles E. Schmidt and others claiming to be stockholders of the Northern Pacific Railroad Company. The prayer of that petition is in six parts and it may be stated briefly that the purpose of the petition is to ask this Court to reopen and try a longstanding controversy between the petitioners as stockholders of the Northern Pacific Railroad Company and the defendant Northern Pacific Railway Company.\\nIt is the understanding of the Court that it is the intention of counsel for plaintiff and defendants to present to the Court a stipulation of settlement of the controversies arising in this litigation and to ask the Court to sign the decree set forth in its entirety in said stipulation. (See note at end of this opinion.) The Court's information in reference thereto comes from a letter transmitted by the Attorney General on April 11, 1941, to the Vice President of the United States. This letter with its appendages has been printed as Senate Document No. 48 of the 77th Congress, 1st Session. (See note at end of this opinion.) That document was filed in this Court on June 12, 1941, by the petitioners for intervention attached to a petition asking the Court to temporarily suspend hearing on the above-described stipulation.\\nSince the petition for intervention is to be argued on its merits, I will not discuss it at this point further than to say that should it be granted, it is apparent that for the present the Court could not consider the above-described stipulation or the proposed decree. Consequently, it seems logical that the Court should first hear argument on the petition for intervention before considering the stipulation or the proposed decree.\\nShould the petition for intervention be denied, it would then become the duty of the Court to take up for consideration the the stipulation entered into and the decree which is proposed. While, under ordinary circumstances, the Court would welcome the opportunity to sign a decree compromising and settling the differences between respective parties to a piece of litigation based upon a stipulation of the parties without argument, it is my belief that, in this case, it is the Court's duty to require a complete discussion of all of the features of the settlement and the proposed decree before signing the decree. There are a number of reasons for this:\\nFirst: The public nature and the public importance of the controversy involved in this litigation.\\nSecond: The fact that this litigation arose out of and was commenced as a result of an Act of the Congress of the United States.\\nThird: The amount of money and property involved in the litigation.\\nFourth: The complexity of the litigation.\\nIn order that counsel may understand the position which the Court takes and the reasons for it, I deem it advisable to discuss the case with a reasonable amount of detail.\\nMr. Justice Roberts, writing the opinion of the Supreme Court, succinctly but exhaustively reviewed the litigation and the history of the events leading up to it. That being true, I feel the following brief statement will suffice:\\nIn the Act of July 2, 1864, 13 Stat. 365, the Northern Pacific Railroad Company was authorized to lay out, locate, construct and maintain a railroad and telegraph line from a point on Lake Superior to Puget Sound with a branch to a point at or near Portland, Oregon. The Act was detailed in its requirements of the Company as to time of commencement and location of construction and completion. In aid of the construction, there was granted to the Company certain sections of land on each side of the line through the territories and states through which construction was proposed. The Act concluded with a reservation by Congress of power \\\"at any time, having due regard for the rights of said Northern Pacific Railroad Company\\\", to \\\"add to, alter, amend, or repeal\\\" the Act.\\nOn May 31, 1870, a Resolution was passed by Congress, 16 Stat. 378, which revised the method of financing and further authorized the location and construction of the main road via the Valley of the Columbia River to Puget Sound and of a branch from the main line across the Cascade Mountains to Puget Sound. This Resolution made a similar grant of land in connection with the authorized additional construction.\\nNumerous controversies arose between the Northern Pacific Railroad Company and its successor \\u2014 Northern Pacific Railway Company \\u2014 and the United States between that time and 1924. Finally, on June 5, 1924, acting upon the recommendation of the President and the Secretary of Agriculture and the Secretary of the In terior, the Congress passed a joint resolution directing the Secretary of the Interi- or to withhold approval of any adjustment of the Company's land grants and the issuance of further patents and appointed a joint committee of Congress to investigate the whole problem. 43 Stat. 461. After almost five years of study the committee recommended the passage of a bill authorizing the Attorney General to institute an action by which \\\"a final and complete determination of the respective rights of the United States and the Northern Pacific Railway Co. to the end that the grants shall be finally adjusted and the interests of the United States and the grantee shall be fully protected\\\" might be secured. 46 Stats. 41, 43 U.S.C.A. \\u00a7 921-929. On pages 332, 333 and 334 of Vol. 311 U.S., 61 S.Ct. 264, on page 271, 85 L.Ed. 210, the Supreme Court in its opinion made a detailed analysis of this Act.\\nThereupon and in accordance with the provisions of the Act, the Attorney General commenced this action by filing a bill in this Court. For the purpose of this statement it seems sufficient for me to say that in its bill, the plaintiff prayed that title to all of the land in the controversy should be quieted in the United States Government and the United States should be compensated by a money judgment for the value of lands which it claimed to have been erroneously patented to the defendants. The relief asked in the answers filed by the defendants, briefly stated, was a dismissal of the action by the Government, an assertion of its title in certain lands and a claim for a money judgment against the plaintiff on lands of which it contended it had been unlawfully denied. The decree of Judge Webster in this case determined that the Railway Company was entitled to compensation for 1,453,061.02 acres of land; that the Company was entitled to patents to 428,986.68 acres of other lands and that the plaintiff was entitled to compensation for 65,829.77 acres found to have been erroneously patented to one of the defendant companies. Both parties appealed to the Supreme Court under the provisions permitting a direct appeal in the Act of Congress of May 22, 1936, 43 U.S.C.A. \\u00a7 925 note. Due to the fact of Mr. Justice Murphy's previous participation in the litigation as Attorney General, the cases were considered by only eight Justices of the Supreme Court. As heretofore stated, the decision of that Court was rendered and the opinion filed on December 16, 1940. It seems to me necessary that at this point we consider in detail that opinion which the Supreme Court rendered.\\nIn its discussion concerning the law of the case, the Supreme Court broke down the case into 20 separate points. It seems to me that an understanding of the Supreme Court's opinion requires a grouping of the 20 points into 5 classifications as follows :\\nFirst: Points 1-6, inclusive, which consist of contentions by plaintiff as to breach of covenant by defendants so substantial in their nature that if they were upheld by the Court, judgment would necessarily be entered in favor of the plaintiff and against the defendant. Upon these 6 points the Justices who heard the case were equally divided. No opinion was expressed upon them.\\nSecond: In this group, points number 7 and 8 were considered. They involved claims by the Government which, if sustained, would have precluded recovery by the defendants. On these points the Court sustained the position of the trial court and ruled against the plaintiff.\\nThird; This group consists of points 9, 10, 11, 12, 15, 16 and 19. They involve contentions of the Government going to the quantum of the award. In each point the Supreme Court sustained the position of the trial court and overruled the Government's contentions.\\nFourth: This group consists of points 13, 14, 17 and 18. These points also are classified by the Supreme Court as involving contentions of the Government which go to the quantum of the award. As to these points, the decree of the trial court is reversed and they are remanded to the trial court for further action.\\nFifth: This classification involves only point 20 under which the Supreme Court considered the company's appeal based upon the failure to allow its claim for additional selection rights as a result of the Portland-Tacoma overlap arising out of the Act of Congress of 1870. On this point the Supreme Court sustained the trial court and dismissed the appeal as being without merit.\\nI have made the foregoing classification in order that it may be apparent that under the mandates of the Supreme Court the only questions returned by that Court to this Court for its consideration are those involved under group four consisting of Supreme Court points number 13, 14, 17 and 18. That being true, there seems to be no necessity for any more detailed discussion of groups 1, 2, 3 and 5. It seems to me, however, that I should discuss the questions involved in the 4 points classified by me as under group 4. Even as to those, I will be brief.\\nPoint 13 : This point involved paragraph 28 of the Bill of Complaint which refers to the Act of February 26, 1895, 28 Stat. 683, which provided for the examination and classification as mineral and non-mineral of place and indemnity lands within four land districts of Idaho and Montana. It alleges that the Act authorized commissioners to be appointed under it to classify approximately 11,500,000 acres of land. It alleges that they did so classify 3,382,-377 acres as mineral and that the defendants made mineral lieu selections totaling 1,330,762 acres for which it received patents and that defendants are claiming approximately 2,451,615 additional lieu acres. It further alleges that the defendants were guilty of fraudulent and collusive practices whereby the Commissioners were persuaded to classify as mineral, lands of little value so that the defendant could select more valuable lands in lieu thereof. Judge Webster dismissed this paragraph on the basis of the argument presented by the Government. The Supreme Court concluded that the allegations of the paragraph were such that despite the argument of the Government, motion to dismiss paragraph 28 should be overruled and the Court should have proceeded to take testimony in reference thereto.\\nPoint 14: This involves the inclusion by this Court of certain withdrawn lands as available for selection in lieu of excepted mineral lands. The Act of 1864 employs three descriptions of public lands, the place land was designated \\\"public land, not mineral.\\\" The lieu lands which may be selected to make up losses in the place lands are referred to as \\\"other lands.\\\" The mineral lieu lands are designated as \\\"unoccupied and unappropriated agricultural lands.\\\" The issue revolved around the correct interpretation of the language \\\"unoccupied and unappropriated agricultural lands\\\" which might be selected in lieu of ineligible mineral lands. The Government contended that agricultural means \\\" 'presently tillable' or presently fit for the plow\\\". The defendants contended that for the purpose of this statute agricultural lands mean non-mineral lands. This Court, in its decree, accepted the contention of the defendants. The Supreme Court refused to accept the definition contended for by either party and substituted therefor the definition \\\"land subject to be taken by preemptors or homesteaders under the public land laws.\\\" As to this point the case was remanded for ascertainment of the Company's selection rights as of the dates of the withdrawals in accordance with the foregoing definition.\\nPoint 17: This involves paragraph 32 of the Bill in which there are set up disadvantages to the Government by the action of the Secretary of the Interior in pre-maturely withdrawing lands in the place and indemnity limits from settlement and pre-emption. In that paragraph it is alleged that as a result of the pre-mature withdrawal the Government suffered dam--' ages and that the defendants secured benefits to which they were not entitled. Frankly conceding that the proof of alleged advantages gained or losses suffered might be difficult, the Supreme Court directed this Court to take evidence thereon in an effort to determine such financial detriment to the United States or financial benefit to the Company.\\nPoint 18: This involves one of the questions which was discussed but not decided by the Supreme Court in considering point 4. The Joint Resolution of 1870 provided \\\"that all lands hereby grante'd to said company which shall not be sold or disposed of or remain subject to the mortgage by this act authorized, at the expiration of five years after the completion of the entire road, shall be subject to settlement and pre-emption like other lands, at a price to be paid to said company not exceeding two dollars and fifty cents per acre.\\\" In paragraph 13 of the Bill, it is contended that the Company failed to comply with that provision of the Resolution of 1870. The Government claims that such failure constituted a breach of the contract and a violation of the policy of the United States and defeated the Company's right to consideration either as to further selections or money compensation. As heretofore stated, the Supreme Court was evenly divided on that question. However, in par agraph 42 of the Bill, the Court is asked to determine the extent to which the Company has failed to comply with the obligation imposed by the Resolution of 1870 and to decree that the Company now perform its covenant to the extent that it is possible and where it is found impossible for the Company to perform, plaintiff asks, in the alternative, for damages or for an accounting as upon a constructive trust. The Supreme Court limited consideration of this paragraph to the lands granted by the Resolution of 1870 and excluded the lands acquired under the Act of 1864 and held that the Company could not be called upon to account as a trustee for the profits of the sale of the land. It then announced that the majority of the Court held that the proviso of the Resolution of 1870 required the Company to open the lands to pre-emption and settlement whether the lands were then subject to mortgage or not, that its failure to do so was a breach of its contract with the United States and that the Government is entitled to recover damages for such breach. This Court was directed to reinstate paragraph 13 of the Bill for the purpose of permitting the Government to prove its damages.\\nIt now appears from Senate Document No. 48 that thereafter negotiations were commenced looking to the settlement of the controversy. The stipulation was entered into on April 11, 1941, which set out verbatim the judgment which it was proposed to be submitted to this Court. In the letter to the Vice President (I assume a similar letter was submitted to the Speaker of the House of Representatives), there is a brief statement of the history of the legislation; a description of the proposed settlement; the statement by the Attorney General that, in his judgment, settlement upon the basis set forth in the stipulation is in the best interests of the United States; notice that unless the Congress objected to the stipulation and the judgment within a period of 60 days that the Attorney General would proceed to complete the settlement.\\nAs I indicated at the outset of this statement, I fully recognize the desirability of the termination of this litigation. After all, the ultimate objective of all litigation is that at some date it should be terminated. Experience has shown that the termination of litigation which is the result of compromise and settlement is usually more satisfactory than that which is carried to the bitter end through the Court. This case is a costly and expensive one to both parties. From that point of view alone, the termination by settlement is in the public interest.\\nI fully recognize the power of the Attorney General to control litigation in which the United States is involved. From the time of the adoption of the Judiciary Act of 1789 (1 Stats. 93, chap. 20, sec. 35 as construed in United States v. San Jacinto Tin Co., 125 U.S. 273, 8 S.Ct. 850, 31 L.Ed. 747) down to the present time (5 U.S.C.A. \\u00a7 309, R.S. \\u00a7 359. 5 U.S.C.A. \\u00a7 306, R.S. \\u00a7 361. 5 U.S.C.A. \\u00a7 316, R.S. \\u00a7 367), the duty and authority of the Attorney General to control and conduct litigation to which the Government may be a party has been recognized in the Statutes of the United States. The Supreme Court has, upon numerous occasions, so recognized it. United States v. San Jacinto, supra; New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L.Ed. 937. In the case of New York v. New Jersey, which I have just cited, the Attorney General's specific authority to do so by stipulation was recognized.\\nThis case, however, has two characteristics which are not usually found in ordinary litigation. In the first place, the public interest is involved to a very high degree and, second, the action was started in compliance with and as the direct result of an Act of the Congress of the United States. It is my belief that the combination of these two characteristics places upon me the responsibility first of determining the correctness of the view expressed by the Attorney General in his letter to the Vice President that the acceptance of this settlement by the Government is in the best interest of the Government (giving due weight to the opinion of the Attorney General) and, second, of being sure that the provisions of the settlement and of the judgment do not contravene in any way the provisions of the Act of June 25, 1929. I have reached this conclusion despite the fact that the proposed judgment is based upon a stipulation signed by the Attorney General of the United States. In this regard it seems to me advisable to consider briefly a few of the decisions of the Supreme Court upon the effect to be given by the Court to stipulations which may be entered into by counsel.\\nIn the case of Utah & Northern Railway v. Fisher, 116 U.S. 28, 6 S.Ct. 246, 248, 29 L.Ed. 542, the parties had stipulated that certain railway property upon which taxes were in controversy was within the boundaries and upon a certain Indian reservation. It was contended, therefore, that the railway property was not subject to taxation. The Supreme Court said: \\\"The stipulation and finding must, however, be read with reference to the legislation of congress, and therefore as only establishing that the road and property are within the exterior boundaries of the reservation. They will not be so construed as to allow the company to escape taxation by the force of a stipulation as to an alleged fact which that legislation shows does not exist.\\\"\\nIn the case of California v. San Pablo & Tulare Railroad Company, 149 U.S. 308, 13 S.Ct. 876, 878, 37 L.Ed. 747, a stipulation was entered into by the Attorney General of the State of California and the attorneys for the Railroad Company that the question involved therein might be submitted to the Supreme Court despite the fact that the taxes, the validity of which constituted the question in the case, had already been paid. The Supreme Court said : \\\"No stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court.\\\"\\nIn the case of Swift & Company v. Hocking Valley Railway Company, 243 U. S. 281, 37 S.Ct. 287, 289, 61 L.Ed. 722, a stipulation was entered into to the effect that a certain track near the warehouse of Swift & Company was a \\\"private track\\\" despite the fact that the record in the case disclosed, contrary to the statement in the stipulation, that the track in question was not a private track. The Court, through Mr. Justice Brand\\u00e9is, quoted the language from the California case just cited and held the stipulation to be a nullity in this language: \\\"If the stipulation is to be treated as an agreement concerning the legal effect of admitted facts, it is obviously inoperative; since the court cannot be controlled by agreement of counsel on a subsidiary question of law. If the stipulation is to be treated as an attempt to agree 'for the purpose only of reviewing the judgment' below, that what are the facts shall be assumed not to be facts, a moot or fictitious case is presented.\\\"\\nIn the case of Sanford's Estate v. Commissioner, 308 U.S. 39, 60 S.Ct. 51, 59, 84 L.Ed. 20, stipulation was entered into concerning the administrative practices of the Bureau of Internal Revenue. Concerning the stipulation, the present Chief Justice said: \\\"Such a stipulated definition of the practice is too vague and indefinite to afford a proper basis for a judicial decision which undertakes to state the construction of the statute in terms of the practice. We are not bound to accept, as controlling, stipulations as to questions of law. Swift & Company v. Hocking Valley Ry. Co., 243 U.S. 281, 289, 37 S.Ct. 287, 289, 61 L.Ed. 722.\\\"\\nIt is further of interest to note that in his exhaustive opinion upon the question of reorganization practise, Mr. Justice Douglas, in the case of Case et al. v. Los Angeles Products Co., 308 U.S. 106, 60 S.Ct. 1, 6, 84 L.Ed. 110, also cited the Swift & Company case in support of his statement that: \\\"But in any event a stipulation does not foreclose legal questions.\\\" That citation and that quotation are a part of Justice Douglas' discussion as to whether or not an agreed plan was fair and equitable.\\nIt is my belief that sections 1, 2, 3, and 4 of the Act of June 25, 1929, 43 U.S.C.A. \\u00a7 921-924, constituted substantive law and that I have the responsibility to see that the decree entered herein does not contravene the provisions of such sections.\\nThere is one other point which I feel I should discuss at this time. On page 5 of the letter of the Attorney General (Senate Document No. 48) [41 F.Supp. 287], the following statement is made: \\\"In my judgment, settlement upon the basis of the terms set forth in the stipulation is for the best interest of the United States. The Secretary of Agriculture concurs in this view and the Secretary of the Interior has advised me that he has no objection to the settlement providing Congress authorizes me to settle on the basis proposed.\\\" As I construe the Attorney General's letter and the stipulation attached thereto, there has been no effort made to secure the authorization of the Congress for the stipulation and settlement. The procedure seems to have been merely the presentation of the stipulation to the Chairman of the Committee on Public Lands and Surveys of the Senate and the Chairman of the Public Lands Committee of the House of Representatives with the request that said chairmen express to the Attorney General any opposition or objection which the respective committees may have had within a period of sixty days after the stipulation was transmitted to the chairmen. I have carefully examined the Act of June 25, 1929, 46 Stat. 41, and failed to find therein any express requirement of approval by the Congress. However, that Act did not contemplate a termination of the litigation by settlement. It provided that after the entry of the final decree, the Attorney General should report to the Congress and that the Congress should be allowed a reasonable time within which to enact legislation making effective the provisions of the decree. Were it not for the statement in the Attorney General's letter that the Secretary of the Interior conditioned his approval upon congressional authorization, I would not be troubled on this point. It seems to me that it must be remembered that the Resolution of June 5, 1924, grew out of a joint recommendation made by the President,' the Secretary of Agriculture and the Secretary of the Interior. It must also be remembered that under the Statutes, the control of public lands rests in the Department of the Interior. There are three pertinent statutes as follows:\\n\\\"There shall be in the Department of the Interior a Commissioner of the General Land Office, who shall be appointed by the President, by and with the advice and consent of the Senate.\\\" R.S. \\u00a7 446, 43 U. S.C.A. \\u00a7 1.\\n\\u2022 \\\"The Commissioner of the General Land Office shall perform, under the direction of the Secretary of the Interior, all executive duties appertaining to the surveying and sale of the public lands of the United States, or in anywise respecting such public lands, and, also, such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the Government.\\\" R.S. \\u00a7 453, 43 U.S.C.A. \\u00a7 2.\\n\\\"The Commissioner of the General Land Office, under the direction of the Secretary of the Interior, is authorized to enforce and carry into execution, by appropriate regulations, every part of the provisions of this title not otherwise specially provided for.\\\" R.S. \\u00a7 2478, 43 U.S.C.A. \\u00a7 1201.\\nFurthermore, it should be noted that in both the Joint Resolution of June 5, 1924, and the Act of June 25, 1929, specific instructions are given to the Secretary of the Interior as to what he should do and not do concerning lands involved in this controversy.\\nUnless additional action than that indicated in the stipulation has been taken by the Congress, it is clear that the Congress has not authorized the settlement proposed. Without expressing my opinion thereon, I pose to the respective counsel the question as to whether or not, in view of the expressed indication of the Secretary of the Interior that he withheld his approval unless Congress authorized the settlement, it is good public policy for the Court to approve the settlement of this important question without Congressional authorization?\\nRuling on Petition for Intervention.\\nThe only question before the Court at this particular time is the right of the Court to grant the petition and motion of Mr. Schmidt, and others associated with him, to intervene at this stage of the proceedings. And, again at the risk of being tedious, and in order that the record may be complete, I think it necessary to review the case from the point of view of this particular petition and motion to intervene.\\nThis action was commenced July 31, 1930. On June 25, 1931, the complaint was amended. The answer of the Railway Company was filed July 18, 1931; the disclaimer of the railroad company was filed January 18, 1932. At that time the Government moved to strike the disclaimer, and thereupon the Railroad Company adopted the answer of the Railway Company. February 25, 1932, special defenses and answer was referred to the Master, and on the same date the legal defenses to the Bill were referred to the Master. The Master's first report on the special defenses and the legal defenses was filed May 31st, 1933, and that was adopted by the Court October 3rd, 1935. April 21, 1936, the matter was referred back to the Master to take testimony which was necessary as a result of the adoption of his report of May 31st, 1933, and after the taking of testimony in various and sundry parts of the United States the Master on July 26, 1937, made his report, and exceptions to the report were taken by the various parties on August 9 and August 13, 1937. Then for the first time, without leave of the Court Mr. Schmidt and his associates on August 25, 1937, filed motion for extension of time to file exceptions to the Master's second report. And then on September 13, 1937, again without leave of the Court an answer and cross bill was filed by-Mr. Schmidt and his associates \\u2014 that was almost seven years after this action was started, after the pleadings had been made up, and many arguments and careful consideration after all testimony had been taken, and the Master's report had been made.\\nOn September 13, 1937, the Government moved to strike the answer and cross complaint of Mr. Schmidt and his associates, and then two days later, September 15, the defendants made the same motion. Thereafter, on January 31, 1938, for the first time Mr. Schmidt and his associates filed a motion for leave to file petition in intervention, accompanied by proposed interrogatories. I have carefully examined that motion and petition and the interrogatories, and so far as the relief sought in the matter now before the Court it is precisely the same relief as was sought in the motion of January 31, 1938. The interrogatories which were submitted in reference to this petition and motion are precisely and exactly the same as the interrogatories submitted January 31, 1938. I make that clear so there can be no question but what the action this court took, and the other courts took, was upon precisely the same question that Counsel is now attempting to present here.\\nOn February 19, 1938, Mr. Schmidt and his associates filed a motion to construe, modify and amend the report of the Special Master of July 26, 1937, and on March 7, 1938, Judge Webster struck out the answer and cross complaint, denied the petition to intervene, denied the motion of February 19, 1938, denied the motion for extension of time for exceptions, and in-eluded in that order the proviso which is quoted in the motion and petition of Mr. Schmidt and his associates, here, reserving to those individuals the right to assert their claim or claims in any other proceeding. That clearly was not a reservation to the effect that they might come back into this case again, but was simply a statement by the Court that anything this Court did at that time was not to be prejudicial to Mr. Schmidt and his associates in starting \\u2022any other case they might want to in any jurisdiction of the United States.\\nMarch 11, 1938, notice was given by Mr. Schmidt and his associates and application for the Court to review, revise and amend the order of March 9, 1938, and amend their bill and answer by making a part of the cross complaint and answer the intervening petition and answer. March 17, 1938, Mr. Schmidt and his associates filed a motion to dismiss the bill of complaint and amended bill of complaint.\\nMarch 22, 1938, Judge Webster denied these two motions, the motion and application of March 9, 1938, and the motion of March 17, 1938, but in this order he made the reservation, which on page 2 of the present motion and petition was incorrectly quoted, as Mr. Boylan pointed out. It should read this way: \\\"It is further ordered that the order shall be without prejudice to the right of the said Charles E. Schmidt, George Landell, Executor of E. A. Landell, deceased, Clarence Lobenthal, Trustee of Bernard Lobenthal, and Walter L. Haehnaen, themselves, or as representatives of other stockholders of the said Northern Pacific Railroad Company, or to such other stockholders themselves, to assert later in this cause when the fund, if any, to be distributed by the United States, is established and fixed, or in any other proceeding any rights which they may have by reason of the matters and things alleged in said answer and cross bill and in said intervening petition.\\\"\\nIn other words, Judge Webster restated the reservation of the right of these parties to start other actions and was not prejudicial to them to start other actions, as provided in his decree or order of March 11, 1938, adding to it \\\"to assert later in this cause when the fund, if any, to be distributed by the United States is established and fixed\\\".\\nIf these petitioners have any right to proceed in this cause at the present time, it must of necessity come only from that language in the order of March 22, 1938. On the same day Judge Webster directed the presentation of Findings of Fact and Conclusions of Law, and on the same day Mr. Schmidt and his associates filed assignments of error against the entire proceedings.\\nThe decree in this case was signed by Judge Webster on June 27, 1939.\\nOn July 25, 1938, Judge Wilbur of the Circuit Court of Appeals, after having the matter presented to him, allowed an appeal from the order of the trial Court of March 9, 1938, denying the application to inter vene, but denied the application as to all other orders embraced in the order of March 9, 1938, and the Circuit Court of Appeals assumed jurisdiction over this action to the extent that Judge Webster had denied the petition of Mr. Schmidt and his associates to intervene. This matter was argued before the Circuit Court of Appeals and in that case they decided, as I view the opinion, four things:\\nFirst, that in so far as Schmidt and his associates sought to present matters presented by the Railway Company and the Railroad Company it is without merit, in that there is no showing that such issues were not adequately presented by the Railway Company in this action;\\nSecond, there was no duty placed upon the Court by the Act of June 25, 1929, to make a decision upon any question not presented to it by the parties in the action;\\nThird, that the Act of June 25, 1929, did not contemplate or authorize litigation of claims by stockholders of the defendant company.\\nThere has been an assertion made here that the act did contemplate such action, but clearly in the language of Judge Wilbur in the case reported entitled Schmidt et al. v. United States, 9 Cir., 102 F.2d 589, on page 596, the Court said: \\\"As to the latter, we hold that the act of June 25, 1929, did not contemplate or authorize the litigation of claims between the stockholders of the defendant corporations in the suit brought by the Attorney General on behalf of the United States and, consequently, that appellants had no right to intervene in the action, and the order denying leave to so intervene was correct.\\\"\\nThey then went ahead on the fourth point that even if it did contemplate such litigation that this application was not timely-\\nHere we have a situation where the only rights these parties have to appear before the Court at this time arises in the language of Judge Webster in his decision where he says that the order shall be without prejudice to the right to assert later in this cause when the fund, if any, to be distributed by the United States is established and fixed.\\nI can't help but conclude that upon the appeal to the Circuit Court of Appeals, despite the fact that the Circuit Court did not expressly say that the language in the order of March 22, 1938, was improper, they did say there was nothing in the Act of June 25, 1929, which contemplated or authorized the litigation of the claims between the stockholders of the defendant corporations in the suit brought by the Attorney General on behalf of the United States. The Circuit Court said \\\"that appellants had no right to intervene in the action\\\", and by that action the Circuit Court of Appeals, I am satisfied, nullified that statement in the order of March 22, 1938, which reserved to these parties the right later in this cause to present their claim to any fund which might be established or fixed by the United States.\\nThat decision was handed down April 27, 1939. Prior to that time, May 16, 1938, in an effort to go directly to the Supreme Court under the provisions of the Special Act of 1936, 43 U.S.C.A. \\u00a7 925 note, the matter was presented to the Supreme Court and in their decision, Northern Pacific Railway Company v. United States, May 16, 1938, 304 U.S. 545, 58 S.Ct. 1036, 82 L. Ed. 1518, the Court used this language: \\\"The application, presented to the Chief Justice and referred by him to the Court, is denied\\\".\\nThen after the decision by the Circuit Court of Appeals, and on October 9, 1939, the case of Northern Pacific Railway Co. et al. by Schmidt et al., v. United States et al., 308 U.S. 508, 60 S.Ct. 71, 84 L.Ed. 434, we find this Per Curiam decision: \\\"The application for the allowance of Appeals presented to Mr. Justice Reed and referred by him to the Court is denied\\\".\\nOn the same day we find another Per Curiam decision, Ex parte Northern Pacific R. R. Co., by Schmidt et al., 308 U.S. 508, 60 S.Ct. 71, 84 L.Ed. 434: \\\"Motion for leave to file petition for writ of mandamus is denied.\\\"\\nThen on the same date, October 9, 1939, two cases, Schmidt et al. v. United States et al., and Northern Pacific Railroad Co. by Schmidt et al., v. United States et al., 308 U.S. 569, 60 S.Ct. 83, 84 L.Ed. 478, we find this Per Curiam decision: \\\"Petitions for writs of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied\\\".\\nThen on February 26, 1940, United States v. Northern Pacific Railway Company et al., and Northern Pacific Railway Company et al. v. United States, 309 U.S. 626, 60 S.Ct. 585, 586, 84 L.Ed. 987: \\\"Motion of the Minority Stockholders of the Northern Pacific Railroad Company for leave to appear and present oral argument in these cases denied\\\".\\nOn October 14, 1940, United States v. Northern Pacific Railway Company et al., 311 U.S. 613, 61 S.Ct. 57, 85 L.Ed. 389, we find a Per Curiam decision: \\\"The motion for leave to file brief of the Minority Stockholders of the Northern Pacific Railway Company is denied\\\".\\nSo we have clearly the question presented to the Circuit Court of Appeals and decided by them in 102 F.2d and presented to the Supreme Court of the United States, and in both cases denied.\\nI find myself in this position: Precisely this same question has been presented to this Court, to the Circuit Court of Appeals and to the United States Supreme Court, and on all occasions has been denied. If it was not timely for Mr. Schmidt and his associates to file in 1937 the petition to intervene at a time when the case was before this Court in its original hearing, certainly it isn't timely to file it now after the case has gone to the Supreme Court of the United States, and has been sent back, except on the one possibility and that is that Judge Webster reserved the right to proceed in another action, and I think the Circuit Court of Appeals specifically nullified that proviso in Judge Webster's order of March 22, 1938, and since the matter went to the Supreme Court in two different ways, and in both instances denied the appeal and denied the issuance of a writ, that question has been decided by the Supreme Court as well as the Circuit Court of Appeals.\\nThen, furthermore, there is filed by Mr. Schmidt and his associates as part of their motion to suspend the hearing upon the stipulation Senate Document No. 48, in which is included the Attorney General's letter, and there is nothing in there which sets up any fund in the Northern Pacific Railway Company or the Northern Pacific Railroad Company in which these parties could participate if they had a right to participate.\\nThe motion of Schmidt and his associates, the petition and motion to intervene and for consideration of relief are denied.\\nMr. Edmiston: Allow us an exception and we give notice of our intention to appeal.\\nJudge SCHWELLENBACH: The record will show the exception (is allowed.\\nThat is the right of every party against whom a ruling has been made, but I do not want the record to show that I think you have the right to appeal, or right of review by any appellate court. You have tried them all. But I will allow the exception.\\nRuling on Acceptance of Stipulation Made After the Introduction of Testimony and Argument of Counsel\\nJudge SCHWELLENBACH: The way I analyze this matter on the question of the reasonableness of the settlement, it seems to me in so far as any substantial rights that are attached by either the decree of Judge Webster or by the proposal of the Supreme Court that the matter be retried as to the first two of the four points those rights have been obtained by the release by the Railway Company. The other two questions are in the category which we so often find in cases of litigation where one has a perfectly good lawsuit and can not prove it, and I do not believe it would ever be possible for the Government to go back these many years and prove either of the necessary facts in order to recover damages, or what its measure of damage is.\\nOn the second question I raised as to the relationship between this decree and the provisions of the act of June 25, 1929, I think there is sufficient showing made that there is nothing in this proposed decree which in any way contravenes the substantive provisions of the Act of June 25, 1929.\\nThe third point has given me more difficulty. I can see nothing in the Act of 1929 which made it necessary for the Attorney General to present this matter either to the Secretary of the Interior, the Secretary of Agriculture or to Congress itself. There is nothing in the Act which did require the Attorney General to submit it. However, the Attorney General did take up the matter with the Secretary of Agriculture, and the Secretary of the Interior and, very unfortunately, included in his letter to the Vice President and to the Speaker the statement that the Secretary of the Interior had advised him he had no objection to the settlement providing Congress authorized him to settle. Congress has not authorized the settlement. The act which was taken by the Committees is not an act of Congress, and is in no way binding on the Congress, and tak ing the language of the Attorney General's letter to the Vice President and the Speaker, the procedure pursued was not in conformity with that language. When Senator Adams writes a letter recommending some kind of settlement I know it is the result of careful consideration by his committee, and when he goes out of the way to praise it, being as conservative as he is in his use of the language, I know the settlement not only received the approval but the positive approval of the Committee on Public Lands in the Senate. I am compelled to look to the letter of the Secretary to determine what he means when he uses the word \\\"authorizes\\\" because the word when used in the letter of the Attorney General has not been complied with \\u2014but in the letter from the Secretary of the Interior to the Attorney General he says: \\\"I note that the proposed stipulation contains a proviso to the effect that it shall not be binding upon the parties thereto unless and until the Attorney General of the United States shall have been authorized by congressional action to compromise and settle said cause upon the terms and conditions therein expressed\\\"\\u2014\\nMr. Mulroney: That is a misstatement, your Honor\\u2014\\nJudge SCHWELLENBACH: I am construing it that when he used the word \\\"authorized\\\" he had in mind the language of the proposed stipulation which specifically sets forth: \\\"Inasmuch as the Attorney General of the United States will communicate the terms and conditions of this stipulation to the Chairman of the Committee on Public Lands and Surveys of the United States Senate and the Chairman of the Public Lands Committee of the House of Representatives of the United States in order to give said Committees an opportunity to express any objection to the settlement contemplated hereby, it is further understood and agreed that this stipulation shall not be binding upon the parties hereto if objection to such settlement is received by the Attorney General on or before June 16, 1941, from either of said Chairmen. If no such objection is received, this stipulation will be submitted to the above-named Court at the earliest date convenient to Court and parties after June 16, 1941\\\".\\nThat is the only language in the stipulation which refers to any action by Congress. When the Secretary of the Interior used the language \\\"I note that it shall not be binding upon the parties thereto unless and until the Attorney General of the United States shall have been authorized by congressional action to compromise and settle said cause\\\" I have to-construe when he used \\\"authorized\\\" he meant the procedure which the stipulation proposed. I can not come to any other conclusion. If he had not mentioned \\\"stipulation\\\" I would be compelled to ask you to go back to get the Secretary of the Interior to change his request, or to get Congress to authorize it.\\nI think there were two unfortunate uses of the word \\\"authorize\\\", one by the Secretary of the Interior and one-by the Attorney General, but since the Secretary of the Interior specifically refers to-the stipulation I think he meant the kind of \\\"authorize\\\" which is contained in the stipulation. I will sign the decree.\\nNote.\\u2014\\n77th Congress 1st Session\\nSenate Document No. 48\\nTitle to Northern Pacific Railroad Land Grants\\nLetter from The Attorney General Transmitting Pursuant to Law\\nA Report of Judicial Proceedings Concerning Title to Certain Northern Pacific Railroad Land Grants, Together with a Proposed Stipulation for the Settlement of the Controversy\\nApril 18, 1941. \\u2014 Referred to the Committee on Public Lands and Surveys and Ordered to be Printed\\nOffice of the Attorney General, Washington, D. C., April 11, 1941.\\nHon. Henry A. Wallace, Vice President of the United States.\\nMy Dear Mr. Vice President: By act of June 25, 1929 (ch. 41, 46 Stat. 41, 43 U.S. C.A. \\u00a7 921-929), Congress directed the Attorney General to institute and prosecute such suit, or suits, as might, in his judgment, be required to remove the cloud cast by the claims of the Northern Pacific Railway Co. on the title of the United States-to approximately 2,900,000 acres of land which had been withdrawn by the United States for its own purposes and which were located in the indemnity limits of the land grants made to the Northern Pacific Rail road Co. by act of July 2, 1864 (ch. CCXVTI, 13 Stat. 365) and joint resolution of May 31, 1870, No. 67 (16 Stat. 378) to which grants the Northern Pacific Railway Co. succeeded.\\nThe act retained the land in question for the United States freed of any claim the companies might have to them and authorized an award of compensation to the companies in the event the court should determine that their claims were meritorious. The act also required that, in the contemplated suit or suits, all controversies and disputes between the United States and the companies should be presented and should be judicially determined and that a full accounting should be had between the United States and the companies and any other parties claiming under the provisions of the grants.\\nIn response to the direction contained in the act a suit was commenced in the District Court of the United States for the Eastern District of Washington, Northern Division. The suit was entitled United States of America, plaintiff, v. Northern Pacific Railway Company, Northern Pacific Railroad Company, Northern Pacific Railroad Company as reorganized in 1875, Northwestern Improvement Company, Bankers Trust Company, Guaranty Trust Company, and City Bank Farmers Trust Company, defendants. The case became No. E-4389. In its bill of complaint the United States alleged ownership and possession of the lands in question; that the railway company was asserting claims to them; that the companies had breached the terms, conditions, and covenants of the granting acts in certain material respects; that they had been guilty of fraud in the course of the administration of the grants; that errors had occurred in the administration of the grants by which the companies had obtained lands to which they were not entitled; that, because of such breaches, fraud and errors, the claims of the railway company to the lands in question were without merit; and that, notwithstanding that such claims were without merit, they clouded the title of the United States to the withdrawn lands in question. The United States prayed that the claims of the railway company to such withdrawn land be determined to be without merit; that the claims of such company to compensation for any and all of the lands in question be denied; that the title of the United States to such land be quieted in it ; and that the United States be awarded judgment against the railway company for the value of any lands found to have been erroneously patented to the companies.\\nAnswers were filed by all defendants except the Northern Pacific Railroad Co. as reorganized in 1875 and the defendant Guaranty Trust Co. The court found that the former of these defendants did not exist. The latter filed a disclaimer. The remaining defendants filed answers in which they moved to strike various subdivisions of the Government's bill, pleaded defenses of laches, limitations, waiver, res judicata, equitable estoppel, and bona fide purchaser against the charges of the United States. In addition, the defendant Northern Pacific Railway Co. asserted an equitable title in the withdrawn lands in question; that its title thereto had been expropriated by the United States, and prayed that it be awarded a judgment against the United States for the amount found due it by reason of such expropriation, together with interest thereon.\\nThe cause was thereupon referred to a special master for determination of the motions to dismiss and special pleas. Testimony was taken on the pleas, argument was heard, and the special master submitted a report recommending that some of the motions and special pleas be sustained; that the motion and special pleas to numerous allegations of the bill charging breaches, fraud, and error be sustained ; and that the subdivisions containing such allegations be dismissed from the bill. Exceptions to the report were filed, argued, and submitted to the court. The court overruled all exceptions, approved the report in full, and by order of October 3, 1935, dismissed from the bill of complaint certain subdivisions thereof, above referred to.\\nThe cause was thereupon rereferred to the special master for trial on the merits, on the issues presented by the pleadings as they then existed, except that the master was directed not to take any evidence as to the value of the lands in controversy or as to the amount of compensation due the plaintiff or any of the defendants. He was directed to determine what lands should be accounted for by the United States or by the companies, to make findings of fact and conclusions of law, and to submit his recommendations for a decree thereon. Thereupon, the cause was tried by the master as directed in the order of rereference and the master submitted his second report finding and concluding that the railway company was entitled to be compensated for certain specific lands aggregating approximately 2,400,000 acres of the withdrawn lands in question. Exceptions to this report were filed by all parties. On hearing thereon, all exceptions of the defendants were overruled and the exceptions of the United States were sustained in part and overruled in part. After further proceedings before the court, made necessary by such rulings on exceptions to the master's report, the court on June 27, 1939, entered his decree determining that the railway company is entitled to compensation for 1,453,061.02 acres of the withdrawn lands; holding that the company is entitled to patents to 428,986.68 acres of other lands in the primary and indemnity limits of the grants, which had been charged to the company in the adjustment of the grants but for which patents had not been issued; and determining that the United States is entitled to compensation for 65,829.77 acres of lands found to have been erroneously patented to the railroad company or railway company.\\nAn appeal to reverse parts of the order of October 3, 1935, and parts of the decree of June 27, 1939, was taken by the plaintiff to the Supreme Court of the United States, and a like appeal was taken by the defendants to reverse certain parts of the decree of June 27, 1939. These appeals were taken directly to the Supreme Court under the provisions of the act of Congress of May 22, 1936 (ch. 444, 49 Stat. 1369, 43 U. S.C.A. \\u00a7 925 note), authorizing direct appeals to that court to review the order of October 3, 1935, and decree of June 27, 1939.\\nOn December 16, 1940, the Supreme Court [United States v. Northern P. R. Co., 311 U.S. 317, 61 S.Ct. 264, 85 L.Ed. 210] announced its decision affirming the action of the lower court with respect t'o the matters involved in the defendants' appeal and reversing it with respect to certain matters involved in the appeal of the United States. The Supreme Court affirmed the action of the district court in directing the issuance to the railway company of patents covering the 428,986.68 acres referred to above. As a result of the decision of the Supreme Court, the cause has been remanded to the district court with instructions to restore to the bill of complaint certain of the charges of breach of contract and fraud which had been stricken by the lower court and to try the issues presented by such charges and the answers thereto. A mandate to carry out these instructions has been sent by the Supreme Court to the district court.\\nMore specifically, the matters for the trial of which the cause was remanded, are as follows:\\n1. The claim of the company to more than a million acres of the 1,453,061.02 acres for which the lower court awarded compensation was based upon the company's asserted right to lands in the indemnity limits in satisfaction of an alleged loss of an equivalent area of lands within the place limits of the grant, due to the classification of such place lands as mineral in character, which classification resulted in the exception of such lands from the grants under their express terms. The United States charged that this classification was brought about by fraudulent conduct on the part of the companies and contended that the alleged fraud, if established, would disentitle the company to any further indemnity lands and would therefore defeat the railway company's claims to compensation for any of the withdrawn lands in question. The view urged by the United States was upheld by the Supreme Court and the cause was remanded to afford the United States an opportunity to prove its charges of fraud.\\n2. The United States complained on its appeal that, even assuming the validity of the so-called mineral losses referred to in the preceding paragraph, the lower court was in error in awarding to the railway company compensation for the approximately 1,000,000 acres of indemnity lands referred to, for the reason that, under the express language of the granting act, mineral losses in the primary limits could be satisfied only by the selection in the indemnity limits of lands which were \\\"agricultural\\\" in character, in the ordinary meaning of the term, whereas it had been found by the trial court that the major part of the million acres of indemnity lands in question were not agricultural in fact. Notwithstanding this finding, the lower court construed the term \\\"agricultural\\\" as synonymous with \\\"nonmineral\\\" and permitted the selection and held that the company is entitled to compensation. The Supreme Court concluded that neither interpretation was correct but that the lower court had permitted a much broader selec tion right than was authorized by the act, held that the selection right was limited to lands which under the existing practice of the Land Office a settler could have taken under the preemption and homestead laws, and remanded the cause for a further showing consonant with such ruling.\\n3. The United States alleged in its bill that the companies had breached a certain requirement of the joint resolution of May 31, 1870, by failing to open to settlement and preemption at prices not exceeding $2.50 per acre to be paid to the company, all lands which had been obtained under the grants and which they had not sold or disposed of at the expiration of 5 years after the completion of the road. The companies admitted their failure but contended that the requirement had never become applicable to any lands. The lower court upheld the companies' contention and dismissed these allegations from the bill. This action was reversed by the Supreme Court and the cause was remanded to the district court with instructions to reinstate the allegations and permit the United States to prove the damages suffered by it by reason of the companies' breach in this respect.\\n4. The United States alleged that the companies had received unauthorized benefits due to the error of the Interior Department in withdrawing public lands for the benefit of the company, within the primary limits of the grant, upon the filing by the company of a map of the general route of its road, whereas such withdrawals should not have been made prior to the subsequent filing of maps of definite location, and had withdrawn for the benefit of the company lands in the indemnity limits of the grant, whereas such withdrawals were wholly unauthorized. These withdrawals were subsequently determined by the Supreme Court to be illegal but only after they had remained in force for a number of years, thus preventing settlers from obtaining the lands so withdrawn and enabling the company, ultimately, to obtain lands which otherwise would have been obtained by the settlers. The lower court struck these allegations from the bill on motion of the defendants. On its appeal the United States complained of this action. The Supreme Court reversed the decision of the lower court, ordered the allegations reinstated, and remanded the cause to afford the United States an opportunity to show the damages suffered by it by reason of such errors.\\nAt this stage of the proceedings the defendants submitted a proposal for the settlement of the entire controversy. They propose\\u2014\\n(1) To relinquish their claim against the United States to compensation for the 1,453,061.02 acres of withdrawn lands still in question, the courts having denied their claim to the remainder of the approximately 2,900,000 acres originally in question;\\n(2) To relinquish their claim to approximately 363,000 acres of the 428,986.68 acres for which they were awarded patents by the decree of June 27, 1939, which the Supreme Court affirmed (the remainder of the area having been sold by the company to bona fide purchasers), to consent to an appropriate amendment of the decree, and to make any necessary conveyances of this area to the United States;\\n(3) To consent to a judgment in the sum of $300,000 against the railway company and in favor of the United States.\\nIn consideration the United States would agree\\u2014\\n(1) To discharge its claim against the company for lands erroneously patented;\\n(2) To relinquish its claim to damages for violation of the $2.50 per acre sales proviso.\\n(3) To relinquish its claim to damages growing out of the illegal withdrawal for the benefit of the company referred to above.\\nThe proposed settlement will include a discharge of all other claims which were presented in the suit and have been heretofore disposed of. The terms of the proposed settlement have been submitted in writing to this Department, and they are embodied in a proposed stipulation which has been tentatively agreed to by the company, a copy of which is attached hereto.\\nIn my judgment, settlement upon the basis of the terms set forth in the stipulation is for the best interest of the United States. The Secretary of Agriculture concurs in this view and the Secretary of the Interior has advised me that he has no objection to the settlement providing Congress authorizes me to settle on the basis proposed.\\nYour attention is directed to paragraph IX of the stipulation by which its effective ness is suspended to afford Congress an opportunity to object to settlement on the basis of the terms proposed. If there is no such objection, I shall appreciate being so advised. If, however, I am not advised of any such objection within 60 days from the date hereof, I shall assume that none exists and will proceed to complete the settlement.\\nIt is respectfully suggested that this letter and the proposed stipulation be referred to the appropriate committee of the Senate.\\nWith kind regards,\\nSincerely,\\nRobert H. Jackson,\\nAttorney General.\\nStipulation\\nIn consideration of the mutual agreements of the parties hereto (the above-named defendant Northern Pacific Railroad Company as reorganized in 1875 having been eliminated by the conclusion of the court that no such company exists and the defendant Guaranty Trust Company having been eliminated by its disclaimer), it is hereby stipulated and agreed by and between the United States of America, plaintiff in the above-entitled cause, and Northern Pacific Railway Company, Northern Pacific Railroad Company, Northwestern Improvement Company, Bankers Trust Company and City Bank Farmers Trust Company, defendants in said cause, as follows:\\n1. The defendants and each of them hereby agree to and do hereby relinquish and release all claims now made or which may have been heretofore made by them, or any of them, to any right, title, or interest in or to each and all of the tracts or parcels of land described in a schedule marked \\\"Schedule 1\\\" referred to in the proposed judgment hereinafter set out, and do hereby release and relinquish all claims that they or any of them have, or claim to have, to payment or compensation for or on account of said lands or on account of their respective claims thereto and said defendants and each of them hereby consent that any claims they may have to said lands or to compensation on account of said lands, may be disallowed by the court and that the court may enter a judgment in the above-entitled cause forever quieting the title of the United States of America thereto or therein against such claims.\\n2. The defendant Northern Pacific Railway Company hereby agrees to pay to the United States the sum of $300,000.00 and hereby consents that judgment may be entered against it and in favor of the United States for such amount with interest thereon at six percent per annum until paid.\\nIII. The defendants hereby agree to and do hereby relinquish all claims that they or any of them now make or have heretofore made to the lands described in a schedule marked \\\"Schedule A\\\" attached to and made a part of the decree of this court entered herein on June 27, 1939, except such of said lands as are described in a schedule marked \\\"Schedule 2\\\" to be attached to the proposed decree hereinafter set out, as to which excepted lands said defendants agree to and do hereby relinquish their claims to all of such of the lands described therein as the Secretary of the Interior, in considering the release filed with him by the Northern Pacific Railway Company in compliance with the provisions, of Section 321(b), Part II, Title III of the Transportation Act of 1940, 49 U.S.C.A. \\u00a7 66(b), shall find have not been sold by said company, prior to September 18, 1940, to bona fide purchasers, except such of said lands as said Secretary shall find have been acquired prior to said date by third persons claiming under unredeemable tax sales.\\nIV. The plaintiff, United States of America, agrees to and does hereby relinquish each and all of the claims asserted by it in the above-entitled cause to compensation for or on account of lands claimed to have been heretofore erroneously patented or certified to the Northern Pacific Railroad Company or Northern Pacific Railway Company under the terms of the Act of July 2, 1864, c. CCXVII (13 Stat. 369), or Joint Resolution of May 31, 1870, No. 67 (16 Stat. 378), or acts relating thereto and supplementary thereof, other than the claim to lands described in \\\"Schedule N\\\" attached to the decree of this Court entered herein on June 27, 1939, as to which the carrying out of the judgment contemplated by this stipulation shall constitute satisfaction.\\nV. The plaintiff, the United States of America agrees to and does hereby relinquish the claim asserted by it in the above-entitled suit against the Northern Pacific Railroad Company and Northern Pacific Railway Company, for damages on account of the alleged breach by said companies of a certain proviso contained in the Joint Resolution of May 31, 1870, requiring that all lands thereby granted to the Northern Pacific Railroad Company which shall not have been sold or disposed of at the expiration of five years after the completion of the road shall be subject to settlement and preemption like other lands at a price to be paid to said company not exceeding two dollars and fifty cents per acre.\\nVI. The plaintiff, United States of America, agrees to and does hereby relinquish its claims asserted in the above-entitled cause against the Northern Pacific Railroad Company or Northern Pacific Railway Company to damages resulting to it by reason of the illegal withdrawals for the benefit of the Northern Pacific Railroad Company of lands within the primary limits of its grants, which withdrawals were made upon the filing of maps of the general route of its road and to relinquish its claim asserted in said cause, to damages resulting to it by reason of the illegal withdrawals for the benefit of said company of lands in the indemnity limits of the grants made to said Northern Pacific Railroad Company, referred to above.\\nVII. For the purpose of carrying out the terms of this stipulation the parties hereto each consent and agree, subject to the approval of the court, that, without further findings of fact, a judgment may be entered in said cause which, in addition to the title, date, signature, and attached schedules, shall read as follows:\\n\\\"This cause having come on to be heard on this . day of ., 1941, before the Honorable Lewis Schwellenbach, Judge of said Court, the plaintiff United States of America being represented by ., the defendants Northern Pacific Railway Company, Northern Pacific Railroad Company, and Northwestern Improvement Company being represented by ., the defendant Bankers Trust Company being represented by ., and the defendant City Bank Farmers Trust Company being represented by ., the attorneys for all of said parties being present in open court and being duly authorized to represent said parties, and the court having considered the stipulation of the parties to the above-entitled suit, filed herein on this date, and having heard the statements of counsel, it is hereby ordered, adjudged, and decreed, as follows:\\n\\\"1. All claims of said defendants, or any of them, to any right, title, or interest in and to each and all of the tracts and parcels of land described in a schedule marked \\\"Schedule 1\\\" attached hereto and made a part hereof, or to compensation therefor or on account thereof, are hereby decreed to be invalid and of no force or effect and the cloud cast by such claims on the title of the United States to such lands is removed and the title of the United States to each and all of such tracts and parcels of land is hereby quieted in the United States against such claims, without payment to the defendants or to any of them of any compensation therefor or on account thereof.\\n\\\"2. That the plaintiff, United States of America, be and it is hereby awarded judgment against the defendant Northern Pacific Railway Company in the sum of $300,-000.00, together with interest thereon at six percent per annum until paid.\\n\\\"3. That the decree of this Court entered herein on June 27, 1939, be and the same is hereby amended and modified by eliminating from the land descriptions contained in 'Schedule A' attached thereto the descriptions of all of said lands other than those described in 'Schedule 2' attached hereto and made a part hereof, and by-eliminating from said Schedule A the descriptions of all the lands described in said Schedule 2 except those lands which the Secretary of the Interior, in considering the release filed with him by the Northern Pacific Railway Company in compliance with the provisions of Section 321(b), Part II, Title III of the Transportation Act of 1940, shall find were, prior to September 18, 1940, sold by said Northern Pacific Railway Company to bona fide purchasers or were, prior to said date, acquired by third persons under unredeemable tax sales. The claims of the defendants, and each of them, to all the lands, the descriptions of which are thus eliminated from said Schedule A, are decreed to be without merit and of no force or effect, the cloud cast on the title to said lands by said claims is hereby removed and the title of the United States to said lands is hereby quieted in the United States; that said decree of June 27, 1939, is hereby confirmed with respect to the lands described in said Schedule A not thus eliminated therefrom.\\n\\\"4. That the claims of the plaintiff, the United States of America, asserted in the above-entitled cause, of a right to be compensated for lands alleged by it to have been heretofore erroneously patented or certified to the said Northern Pacific Railroad Company or the said Northern Pacific Railway Company under the granting act of July 2, 1864, c. CCXVII (13 Stat. 369), or Joint Resolution of May 31, 1870, No. 67 (17 Stat. 378), or acts supplemental thereto, other than the claim to be compensated for the lands described in \\\"Schedule N\\\" attached to the decree of this Court entered herein on June 27, 1939, as to which lands the claim of the United States shall be extinguished upon the carrying out of this judgment, are hereby disallowed and denied.\\n\\\"5. That the claims of the United States asserted in said cause against the defendants Northern Pacific Railroad Company and Northern Pacific Railway Company for damages because of the alleged breach by said companies of the requirements of a proviso contained in the Joint Resolution of May 31, 1870, requiring that all lands thereby granted which had not been sold or disposed of at the expiration of five years after the completion of the entire road should be subject to settlement and preemption like other lands at a price to be paid to said companies not exceeding two dollars and fifty cents per acre, are hereby disallowed and denied.\\n\\\"6. That the claims of the United States asserted in said cause against the Northern Pacific Railroad Company and the Northern Pacific Railway Company for damages arising by reason of the illegal withdrawals of lands within the primary limits of the grants to the Northern Pacific Railroad Company, which withdrawals were made upon the filing of maps of general route of the railroad of said company and the claims of the United States for damages arising by reason of illegal withdrawals of lands made for the benefit of the company within the indemnity limits of the grant,'be and the same are disallowed and denied.\\n\\\"7. That all other claims on the part of the United States for a money judgment asserted in said suit against the defendants or any of them be and the same are hereby disallowed and denied.\\n\\\"8. ' This decree shall be and remain a full and complete adjustment, accounting, and settlement of all the rights and claims of the United States against the Northern Pacific Railroad Company, Northern Pacific Railway Company, and any and all persons claiming by, through, or under them, or either of them, and of all the rights and claims of said Northern Pacific Railroad Company, Northern Pacific Railway Company, and any and all persons claiming by, through, or under them, or either of them, against the United States, which have been presented or might have been presented herein under and by virtue of the Act of Congress of July 2, 1864, and Joint Resolution of May 31, 1870, and any and all acts amending or supplementing the same, as provided by the Act of June 25, 1929.\\n\\\"9.- That the execution and delivery to the United States of an instrument or instruments of release by Bankers Trust Company, as successor trustee under the Prior Lien Mortgage, executed by Northern Pacific Railway Company dated November 10, 1896, to Mercantile Trust Company, as trustee, and by City Bank Farmers Trust Company, as trustee of the General Lien Mortgage, executed by Northern Pacific Railway Company dated November 10, 1896, to The Farmers' Loan and Trust Company (now known as City Bank Farmers Trust Company), as trustee, in accordance with Section 321, Part II, Title III, Transportation Act of 1940, releasing and discharging from the lien of said mortgages, respectively, any and all claims to lands, interests in lands, compensation, or reimbursement on account of lands granted, claimed to have been granted, or claimed should have been granted to Northern Railway Company, or any predecessor in interest, in aid of construction of any portion of its railroad (excluding from said release rights of way or station grounds of said Railway Company, lands sold by said Railway Company to innocent purchasers for value prior to September 18, 1940, lands embraced in selections made by said Railway Company and approved by the Secretary of the Interior prior to September 18, 1940, or lands which have been patented or certified to said Railway Company or any, predecessor in interest in aid of the construction of its railroad), is for the best interests of the holders pf the bonds issued and outstanding under said mortgages respectively and the execution and delivery thereof by said trustees respectively is hereby authorized, approved, ratified, and confirmed.\\n\\\"10. Except as modified or superseded hereby the decree entered herein on June 27, 1939, is hereby confirmed..\\n\\\"11. That the defendants pay to the Clerk of this Court all .costs of suit not incurred by the United States and not heretofore paid, taxes at $.......\\n\\\"Dated .\\n\\\"Judge of said Court\\\"\\nVIII. It is understood and agreed that a copy of this stipulation may be filed in the above-entitled cause and shall constitute the consent and request of the parties thereto that a judgment as therein set out be entered in said cause by the Court.\\nIX. Inasmuch as the Attorney General of the United States will communicate the terms and conditions of this stipulation to the Chairman of the Committee on Public Lands and Surveys of the United States Senate and the Chairman of the Public Lands Committee of the House of Representatives of the United States in order to give said Committees an opportunity to express any objection to the settlement contemplated hereby, it is further understood and agreed that this stipulation shall not be binding upon the parties hereto if objection to such settlement is received by the Attorney General on or before June 16, 1941, from, either of said Chairmen. If no such objection is received, this stipulation will be submitted to the above-named Court at the earliest date convenient to Court and parties after June 16, 1941, and shall be effective immediately upon approval by said Court.\\nDated this 11th day of April 1941.\\nUnited States of America, Plaintiff, (By direction of the Attorney\\nGeneral.)\\n[s] Norman M. Littell, Assistant Attorney General. Northern Pacific Railway Company,\\n[s] By L. B. DaPonte, Its Attorney. Northern Pacific Railroad Company,\\n[s] By L. B. DaPonte. Northwestern Improvement'Company,\\n[s] By L. B. DaPonte. Bankers Trust Company,\\n[s]' By White & Case, by L. B. DaPonte. Tracy Vought.\\n[s] Tracy Vought, By L. B. DaPonte, A: N. Heuston, Its Attorneys. City Bank Farmers Trust Company,\\n[s] By Taylor, Blanc, Capron & Marsh, By L. B. DaPonte,\\n[s] John B. Marsh, By L. B. DaPonte, John B. Marsh, Its Attorneys.\"}"
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+"{\"id\": \"4230905\", \"name\": \"HOPPER v. LENNEN & MITCHELL, Inc., et al.\", \"name_abbreviation\": \"Hopper v. Lennen & Mitchell, Inc.\", \"decision_date\": \"1943-10-15\", \"docket_number\": \"No. 2933-H\", \"first_page\": \"319\", \"last_page\": \"328\", \"citations\": \"52 F. Supp. 319\", \"volume\": \"52\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the Southern District of California\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T23:35:54.660271+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HOPPER v. LENNEN & MITCHELL, Inc., et al.\", \"head_matter\": \"HOPPER v. LENNEN & MITCHELL, Inc., et al.\\nNo. 2933-H.\\nDistrict Court, S. D. California, Central Division.\\nOct. 15, 1943.\\nGang, Kopp & Tyre and Norman R. Tyre, all of Los Angeles, for plaintiff.\\nCosgrove & O\\u2019Neil and John N. Cramer, all of Los Angeles, for defendants.\", \"word_count\": \"6451\", \"char_count\": \"38064\", \"text\": \"HOLLZER, District Judge.\\nThis is a suit for damages founded upon alleged anticipatory breaches of two contracts. The matters requiring determination arise out of certain motions, interposed separately by each of the defendants, attacking the sufficiency of the complaint.\\nThe complaint consists of four counts. While two defendants have been joined, one named Lennen & Mitchell, Inc., a New York corporation, hereinafter referred to as Lennen, and the other the Andrew Jergens Company, an Ohio corporation, hereinafter referred to as Jergens, only the acts of the former are complained of in the first count, also only the acts of the latter are complained of in the fourth count, while the acts of both defendants form the basis of the allegations of the second and third counts. The contract referred to in the second count is identical with that set forth in the first count, except that in the former Lennen is sued as agent and Jergens sued as its principal. The third count is founded upon a later, separate and distinct agreement alleged to have been entered into between plaintiff on the one hand and defendant Lennen as agent and defendant Jergens as its principal. The last count pertains to both the aforementioned contracts.\\nFor a first cause of action plaintiff charges that about November 12, 1942, she entered into a verbal agreement with Lennen ; that under the terms thereof she agreed to render her services for Lennen on the radio, to appear on a weekly radio program, advertising the products of Jergens for whom Lennen was advertising agent; that her services for Lennen would be exclusive on the radio unless the latter's written consent was first obtained; and that for such services Lennen agreed to pay her compensation as follows: $1,250 per week for the first 26 week period; $1,500 per week for the next two 26 week periods; $1,750 per week for the next two 26 week periods ; $2,000 per week for the next two 26 week periods; $2,250 per week for the next two 26 week periods; and $2,500 per week for the last 26 week period. Likewise under the terms of said contract Lennen was granted the right to cancel the same, but only upon these conditions, namely, that it notify plaintiff of such cancellation, also that such notice be given 4 weeks prior to the last broadcast of any 26 week period, and provided further that such notice be given in writing.\\nIn said first count plaintiff further alleges that at all times she has been and is ready, able and willing to render the aforementioned services, but that Lennen has refused to perform its obligations under said contract and has repudiated the same, and that as a result of such refusal and repudiation on the part of Lennen, plaintiff has been damaged in the sum of $487,-500.\\nThe second count in effect is a restatement of the first, with only this difference, that plaintiff charges that in entering into said agreement, Lennen acted for itself and as advertising agent for Jergens, and also that both defendants have refused to perform their obligations under said contract and have repudiated the same, and that as a result thereof, she has been damaged in the sum of $487,500.\\nFor a third cause of action, plaintiff alleges that about November 30, 1942, she entered into a verbal agreement with Lennen and Jergens; that under the terms thereof she was employed by them to render her services on the radio in replacing Walter Winchell for the time he would be unable to make broadcasts for them, that is, a period of at least six weeks commencing December 6, 1942, and as long thereafter as he would be unable to broadcast for said defendants, and that for such services defendants would pay her at the same rate of compensation as that specified in the agreement described in the first count, to-wit, $1,250 per broadcast. She further charges that at all times she has been and is ready, able and willing to render the services called for under said later agreement, but that defendants have refused to perform their obligations thereunder and have repudiated the same, that they have refused to pay her for the six replacement broadcasts for Walter Winchell, and that as a result of such breach of contract she has been damaged in the sum of $7,500.\\nIn the remaining count plaintiff alleges that about November 12, 1942, she entered into a verbal contract with Lennen as specified in the first count and that about November 30, 1942, she entered into another verbal contract with Lennen as specified in the third count. She further charges that after the aforementioned contractual relationships with Lennen had become established and while they were co-operating in performing their obligations thereunder, Lennen telegraphed her on December 2, 1942, to the effect that the deal for her to replace Winchell starting the following Sunday was off. It is further alleged that Lennen is the advertising agent for Jergens, that by reason thereof the latter was able to and did influence, induce and compel the former to break its contractual relationship with plaintiff; that Jergens intentionally and wrongfully interfered with the contractual rights and relations of plaintiff with Lennen; and that as a result of such interference by Jergens the verbal agreements between plaintiff and Lennen were broken and repudiated by the latter, thereby causing plaintiff to sustain damages in the amount of $495,000.\\nThe defendants have appeared separately and each has filed a motion to dismiss the complaint, also a motion to dismiss each count thereof, and in addition a motion for a bill of particulars in respect to the fourth count. While it is clear that in the first count no cause of action is stated against Jergens, and likewise that in the fourth count no cause of action is pleaded against Lennen, nevertheless we are satisfied that under the provisions of Rule 20(a), Federal Rules of Civil Procedure, the defendants may be joined in one and the same action, assuming of course that causes of action can be stated against each of them.\\nWhile counsel have advanced several contentions both in their briefs and during the oral argument, the major ground upon which the first and second counts are attacked is that the oral agreement therein pleaded is invalid and unenforceable under the Statute of Frauds, more particularly, the provisions of Section 1624, Subd. 1 of the California Civil Code, and of Section 1973, Subd. 1 of the California Code of Civil Procedure. Many cases have been cited by respective counsel and in a few instances both sides rely upon the same decisions.\\nAs we view the question thus presented, its determination is to be found in the correct application of the rule established by the great weight of authority and recognized in this state, the rule which points out the distinction between performance on the one hand and cancellation, rescission and termination, on the'other hand.\\nThe latest California decision called to our attention, dealing with this subject, is entitled Sessions v. Southern Calif. Edison Co., 47 Cal.App.2d 611, 118 P.2d 935, 938. In -the course of its opinion the court there declared:\\n\\\"The parties devote the major portion of their briefs to a discussion as to whether the oral agreement is or \\u2022 is not within the Statute of frauds, and so we shall first discuss the applicability of the statute. Defendant company contends that the oral agreement alleged to have been made in 1930 between plaintiff and its assistant manager is invalid and unenforceable against it, as its promise made through Lewis, if it be bound- thereby, is a promise which falls within that particular category of the statute of frauds which requires a writing where the promise 'by its terms is not to be performed within a year from the making thereof. Civ.Code \\u00a7 1624. In view of the contention it is important to observe that the only oral contracts of the character here involved which are within the statute are those which cannot be performed within a- year of their making. Hollywood Motion Picture Equipment v. Furer, 16 Cal.2d 184, 105 P.2d 299; Williston on Contracts, Rev.Ed., Sec. 495; Restat., Contracts, Sec. 198. The basic test for determining whether the oral contract is within or without the statute lies wholly with the terms of the oral contract. Brock v. Button, 187 Wash. 27, 59 P.2d 761. As plaintiff, states defendant's promise, it was to pay him a certain sum until he became of pension age (i. e. for six years) and then to pay him a pension.\\n\\\"Plaintiff argues that under the contract as he states it, it does not fall within the statute. To sustain his position he relies on the principle that a promise of performance during the life of a specified person is not within the statute, as the death of the person may occur within the year. The difficulty with the plaintiff's position here, and throughout' his brief, is that he fails to observe the distinction between performing a contract and being discharged from liability under it. See Williston on Contracts, Rev.Ed., Sec. 496. Plaintiff leans heavily on Weatherford, Mineral Wells & N. W. R. Co. v. Wood, 88 Tex. 191, 30 S.W. 859, 28 L.R.A. 526, which held that a promise to give an 'annual pass for ten years W\\u00e1'S not within the stat\\u00fate, as the recipient might die within the year and so' the promise might' be fulfilled within the year! It is enough to say of that case that it has not been followed outside its jurisdiction and it has been criticized. 2 Williston on Contracts, Sec. 496, note 2.\\n\\\"It is self-evident that the contract in this case was within the statute of frauds.\\\"\\nSection 198, Restatement Contracts, cited with approval in the case from which we have just quoted, defines the rule as follows : \\\"Where any of the promises in a bilateral contract cannot be fully performed within a year from the time of the formation of the contract, all promises in the.contract are within Class V of sec. 178, unless and until one party to such a contract completely performs what he has promised. When there has been such complete performance none of the promises in the contract is within Class V.\\\" (Italics ours.)\\nComment c to the above section states: \\\"A distinction must be taken between promises which can be 'fully performed' within a year and promises which though they cannot be 'fully performed' within that time may be excused within it by the happening of some event. The former class is not within Class V; the latter class is.\\\"\\nTurning to the pertinent portion of section 178, Restatement Contracts, we find the rule thus expressed:\\n\\\"The following classes of informal contracts are by statute unenforceable unless there is a written memorandum thereof signed by the party against whom enforcement of the contract is sought or by some person thereunto authorized by him:\\n\\\"Class V. Bilateral contracts, so long as they are not fully performed by either party, which' are not capable of performance within a year from the time of their formation.\\\" (Italics ours.)\\nAs stated by the Supreme Court of Rhode Island in Wagniere v. Dunnell, 29 R.I. 580, 73 A. 309, at page 310, 17 Ann.Cas. 205: \\\"It is established by the great weight of authority that a contract for a definite term longer than a year is not excluded from the operation of the statute of frauds because it contains a provision enabling either party to put an end to the contract within a year: the reasoning of the courts -being that the rescission of a contract is not the performance of it. (Citing many cases and text.) In Dobson v. Collis [1 Hurl. & N. 81], supra, the plaintiff's case was that it had been agreed between him and the defendants that he should serve the defendants and be retained by them in the capacity of a traveler until the 1st day of September, 1855, and for a year thereafter, unless the said employment were determined by three months' notice given by plaintiff or defendants, respectively; that the plaintiff had entered into service of the defendants, etc., but had been dismissed by the defendants before September 1, 1855. The contract was oral, and was held to be within the statute of frauds as a contract not to be performed within a year, although it was defeasible within a year. Pollock, C. B., says: 'A contract which by its general terms is not to be performed within the year is not taken out of the statute because it may be defeated on a given event. A lease for five years, subject to a defeasance on the happening of a certain event, does not cease to be a lease for five years because it may be defeated at the end of the first year.' \\\" (Italics ours.)\\nA study of the cases cited by counsel for the respective parties herein convinces us that the law of California is substantially in accord with the rule announced in the above quoted provisions from Restatement Contracts and in the cases to which we have made reference. Applying that doctrine to the allegations of the first and second counts of the complaint, it is clear that the agreement therein set forth, and which plaintiff seeks to enforce against one or both of the defendants, is a bi-lateral contract. It is also evident that by its terms said contract provided that at least one of the defendants would be entitled to plaintiff's services, in other words, that plaintiff became obligated to render her services, for a period of five years; also that she would become entitled to compensation for her services at rates increasing periodically during said five year period; and further that one or both of the defendants become obligated to accept her services for said period, unless and until defendant Lennen fulfilled certain conditions entitling if to cancel or terminate said contract. Those conditions were that Lennen give notice of cancellation to plaintiff, also that such notice be in writing, and further that it be given 4 weeks prior to plaintiff's last broadcast of any 26 week period included within the agreement. So far as the complaint discloses, assuming it became bound thereby, defendant Jergens did not have the right to cancel or otherwise terminate the contract. It is equally patent that the plaintiff did not have the right to cancel or otherwise terminate the contract.\\nWe are satisfied that an agreement embodying terms such as we have just outlined comes within the provisions of the California statute of frauds. Accordingly we conclude that the allegations of the first count and likewise the allegations of the second count fail to state a cause of action enforceable against either defendant.\\nWe shall now give consideration to the motions directed against the third count. The ground upon which defendants have moved for a dismissal of this count is, in substance, that the verbal agreement therein set forth is too vague, indefinite, uncertain and incomplete to be enforceable. It is clear that under California law no action will lie to enforce the performance of a contract, or to recover damages for its breach, unless it be complete and certain.\\nThe defendants contend that the verbal agreement as pleaded in the third count must be taken to be the full and complete agreement between the parties. They further assert that such questions as to when, where, at what time and for how long a period each week plaintiff was to render services on the radio, what was the nature of her services, was she to prepare her own script, and if so did Lennen or Jergens or the broadcasting company have any right of censorship, would become vitally important with respect to the terms of such a contract as the one relied upon in said count. All these matters counsel for defendants urge would be vital to a radio broadcast intended to promote the good will of the sponsor and to advertise its products. The terms of the verbal agreement thus pleaded, according to counsel, make no reference to such essential matters. Accordingly defendants insist that said agreement lacks the certainty, definiteness and completeness which are prerequisite to rendering it legally enforceable.\\nIn reply, opposing counsel point out that in the third count plaintiff seeks recovery of compensation agreed to be paid her for six radio broadcasts which, though unrelated to the agreement set forth in the first and second causes of action, nevertheless pertained to a type of service and a program identical with those embraced within the agreement pleaded in the prior counts. In this connection plaintiff's counsel assert that the contract sued upon is one in which plaintiff would render her services on the radio for a fixed period of time commencing on a fixed date, that it specified the program was to be a weekly one, also indicated the products to be advertised, and hence contained all of the necessary components of a valid agreement. Furthermore they point out that in the cases relied upon by opposing counsel the contracts under attack all lacked elements present in the contract set forth in the third count.\\nWe have heretofore summarized the terms of the alleged agreement as pleaded in the third count. Without repeating what we have previously stated in that regard, it should be observed that the contract now-being examined referred and bore a relationship to a specific arrangement already in existence, more particularly, a radio program then being carried on and which apparently was of the same general character as that respecting which plaintiff and defendants were contracting. Likewise, it should be noted that radio broadcasting in connection with commercial advertising has been established for many years on a nationwide scale. To what extent this has led to the creation and acceptance of certain usages and practices which, it would be fair to presume, parties contracting in this field would have in mind and would consider to be a part of any agreement entered into between them, would seem to be a matter of proof.\\nSection 32, Restatement Contracts, declares: \\\"An offer must be so definite in its terms, or require such definite terms in the acceptance, that the promises and performances to be rendered by each party are reasonably certain.\\\"\\nHowever, in Comment b to this section, we find the rule amplified in the following language: \\\"Promises may be indefinite in time or in place, or in the work or things to be given in exchange for the promise. In dealing with such cases, the law endeavors to give a sufficiently clear meaning to offers and promises where the parties intended to enter into a bargain, but in some cases this is impossible.\\\"\\nIllustration number 3 of this same rule is thus expressed in the text: \\\"A promises B to employ him for a stated compensation and B promises A to serve therefor so long as B is able to do the work, or as long as a specified business is carried on. These promises create contracts, as a method is provided for determining the length of the engagement.\\\"\\nIllustration number 7 of the same rule is stated as follows: \\\"A promises B to execute a conveyance in fee or a lease for a year of specified land and B promises A to pay therefor. Although the terms of leases and conveyances vary, the promises are interpreted as providing for documents in the form in common local use, and are sufficiently definite to form contracts.\\\"\\nThe same text in Section 246 recites: \\\"Operative usages have the effect of (b) adding to the agreement or manifestations of intention provisions in accordance with the usage, and not inconsistent with the agreement or manifestations of intention.\\\"\\nBy way of comment to the foregoing, the text declares: \\\"The principle under which provisions are annexed to written contracts by usage is the same as that which controls the admission of collateral parol agreements, but usage is sometime operative though an express agreement to the same effect would not be. The test in both cases is the practical one, whether a reasonable contracting party might enter into the written contract in question and have intended to be bound both by its express terms, and also by the terms of the usage or collateral parol agreement in question. Concrete cases seem to indicate that reasonable persons are much more likely to rely on a recognized usage to affect the otherwise natural implications of their written contracts than on collateral parol agreements.\\\"\\nThe following illustrations, numbered 8, 10 and 11 respectively, are given in the text as examples of the above stated principles:\\n\\\"8. A and B enter into a contract for a year's employment of B by A. By an operative usage such a contract may be terminated by a month's notice. That provision is part of the contract.\\n\\\"10. A contracts to sell and B to buy a hundred barrels of flour at $8 a barrel. By an operative usage in contracts for the sale of flour where the contract fixes no time for the payment of the price, payment is regarded as due ten days after delivery. The meaning of B's promise is a promise to pay the price ten days after delivery of the flour.\\n\\\"11. A contracts to sell and B to buy 100 barrels of mackerel. By an operative usage, sellers of mackerel, unless they expressly exclude that interpretation of their bargain, are regarded as warranting that the fish are not below a certain size. A warranty to that effect is part of the contract.\\\"\\nSection 247 of the same text declares in part:\\n\\\"A usage is operative upon parties to a transaction where and only where\\n\\\"(c) the usage exists in such transactions and each party knows of the usage or it is generally known by persons under similar circumstances, unless either party knows or has reason to know that the other party has an intention inconsistent with the usage.\\\"\\nComment b respecting the foregoing rule recites: \\\"A party cannot be bound by usage unless he either knows or has reason to know of its existence and nature. Accordingly one who seeks either to define-language or to annex a term to a contract by means of usage must show either that the other party is actually aware of the usage, or that the existence of the usage in the business to which the transaction relates is so notorious that a person of ordinary prudence in the exercise of reasonable care would be aware of it. If so notorious, actual knowledge of it is immaterial.\\\"\\nAn additional comment, designated c, respecting this rule reads: \\\"It is a question of fact whether a party has reason to know that the other party intends his words or other acts to be governed by a usage. The burden of establishing that such is the case is on the party so asserting. Though the question is one of fact, the existence of a usage, like other facts may be so well known that a court will take judicial cognizance of it.\\\"\\nThe following illustrations, numbered 1, 2 and 4, respectively, appear in the text as examples of the rule last stated:\\n\\\"1. A, in Washington, sends an order to B in Baltimore to be executed on the New York Exchange. Unless both A and B gave A's order a different and identical interpretation, the order is interpreted according to the usages of the New York Exchange, even though one party is ignorant of them, since he has reason to know that the other party would interpret the order in accordance with the usage.\\n\\\"2. A makes an integrated contract with B by which B promises to have executed an order on the New York Stock Exchange. A and B reside in Omaha and the contract is made there. In view of the well-known fact throughout the United States that stock exchanges have special rules, the usages of the New York Stock Exchange affecting the meaning of the contract are operative.\\n\\\"4. A, residing in Chicago, and B residing in South Carolina, enter into an integrated contract in Chicago for the purchase and sale there of 'ground sheep manure'. These words bear one meaning in Chicago, and a somewhat different meaning in South Carolina. A understands the meaning to be that current in Chicago, B understands the meaning to be that current in South Carolina. The meaning of the words in the contract is that current in Chicago. Since Chicago is the place of making and performing the contract, the usage there is operative.\\\"\\nApplying the foregoing principles, as thus amplified in Restatement Contracts, to the allegations of the third count, we are persuaded that sufficient facts are there set forth to provide a method for determining the terms of the agreement reached by them, and which will entitle the parties to offer proof respecting the circumstances and conditions under which they negotiated. In other words, the parties would be entitled to introduce evidence showing the terms commonly included in arrangements of the kind here involved, and thereby prove whether or not the promises as alleged by the pleader should be interpreted as embodying such terms. Furthermore, evidence would be admissible to prove whether or not the contracting parties entered into the arrangement pleaded, with the intention of being bound not only by its express terms, but also by the terms of some known and recognized usage or usages. Though the question is one of fact, the existence of such usage or usages, respecting the terms of contracts employing individuals to conduct radio broadcasts in connection with commercial advertising, may be so well known that the court will take judicial cognizance of it. Thus although such proof would have the effect of adding provisions to the express language of the agreement, nevertheless, so long as the same would be consistent therewith, the parties would be entitled to establish the same, and if the proof were adequate the parties would be bound thereby. We therefore hold that the motions attacking the sufficiency of the allegations of the third count should be denied.\\nThere remains for determination the motions directed against the fourth count. The agreements of November 12, 1942, and November 30, 1942, as therein pleaded required appearances of plaintiff on a weekly program advertising the products of Jergens. It is also there alleged that Lennen was the advertising agent for the latter, and that by reason of this relationship Jergens was able to and did influence and compel Lennen to repudiate said contracts. Thus it appears upon the face of the complaint that in a broad sense Jergens had a financial interest in Lennen's business, at least to the extent that it advertised the former's products and that in any event Jergens had an economic interest in the subject matter of these two contracts.\\n\\\"The theory of this cause of action,\\\" assert plaintiff's counsel in their brief, \\\"is that Jergens induced Lennen to breach its agreements with plaintiff.\\\" Further discussing this same point counsel state: \\\"The case of Imperial Ice Co. v. Rossier, 1941, 18 Cal.2d 33, 112 P.2d 631, definitely established that 'in California, therefore, an action will lie for unjustifiably inducing a breach of contract.' It is sufficient to justify the allegations under this cause of action to state that they were directly based upon the most recent statement of the California courts on this subject in Remillard-Dandini Co. v. Dandini, September, 1941, 46 Cal.App.2d 678, 116 P.2d 641.\\\"\\nIn the last cited case the complaint charged that defendant [116 P.2d 642] \\\" 'called upon a number of the creditors of plaintiff and sought to and did induce such creditors of plaintiff to break the contractural relationships which existed between such creditors and plaintiff, all of which was done for the purpose and with the intention of bringing about the destruction and failure of plaintiff as a business and going concern'. Also 'That by reason of the foregoing acts, statements and conduct of defendants, plaintiff has sustained damage in the following manner and amounts:-. That by reason of the interference by defendants in the relationships between plaintiff and its creditors, materials, supplies and services which had been contracted for by plaintiff were not delivered or supplied by such creditors and suppliers in accordance with the terms which had originally been arranged between such creditors and suppliers and plaintiff, and as a direct result of which plaintiff's plants were damaged and the operation of plaintiff's plants, and of its trucks, were curtailed,' \\\" etc.\\nIn the course of its opinion, reversing a judgment for defendants on the pleadings, the court in that case declared: \\\"That a third party's unjustifiable interference with contractual relations is actionable is now the settled law in this state. This court so held in California Grape Control Board v. California Produce Corporation, 4 Cal.App.2d 242, 40 P.2d 846. The holding was approved in Imperial Ice Company v. Rossier, 18 Cal.2d 33, 112 P.2d 631. This appears to be the view expressed in Vol. 4, Restatement of the Law of Torts, section 766, where it is stated: 'Except as stated in Section 698, one who, without a privilege to do so, induces or otherwise purposely causes a third person not to (a) perform a contract with another, or (b) enter into or continue a business relation with another is liable to the other for the harm caused thereby.' \\\" (Italics ours.)\\nIn Imperial Ice Co. v. Rossier, supra, it was alleged in the complaint that one Coker had sold his ice distributing business, inclusive of good will, and that in the agreement of sale Coker contracted not to engage in the business of selling and/or distributing ice in certain territory so long as the purchasers, or anyone deriving title to the good will of said business from said purchasers, should be engaged in a like business therein. It was further charged in the complaint that plaintiff acquired from the successor in interest of the original vendor full title to this ice distributing business, including the right to enforce the covenant not to compete; also that in violation of the contract of sale Coker had begun selling in the same territory ice supplied to him by defendants, and that the latter had induced Coker to violate his contract so that they might sell ice to him at a profit.\\nIn the latter case the Supreme Court of California reversed the judgment of the lower court entered after sustaining without leave to amend a demurrer to the complaint. The ground for such reversal was that an action will lie for inducing a breach of contract by the use of moral, social or economic pressures, in themselves lawful, unless there is sufficient justification for such inducement, and the complaint there failed to show the required justification. The court there pointed out that the contract which Coker had signed gave to plaintiff the right to sell ice in the stated territory free from competition on his part; that defendants, by virtue of their interest in the sale of ice in that territory, were in effect competing with plaintiff; that by inducing Coker to violate his contract they sought to further their own economic advantage at plaintiff's expense; and that such conduct was not justified.\\nHowever, it should be observed that in its opinion the Supreme Court of California in that decision also called attention to certain instances wherein justification for such inducement would exist, stating [18 Cal.2d 33, 112 P.2d 633]:\\n\\\"In numerous other situations, justification exists (see Restat. Torts, secs. 766 to 774) depending upon the importance of the interest protected. The presence or absence of ill-will, sometimes referred to as 'malice', is immaterial, except as it indicates whether or not an interest is actually being protected. Boyson v. Thorn, 98 Cal. 578, 33 P. 492, 21 L.R.A. 233; Parkinson Co. v. Building Trades Council, 154 Cal. 581, 98 P. 1027, 21 L.R.A.,N.S., 550, 16 Ann.Cas. 1165; see cases cited in 84 A.L.R. 50; see Restat. Torts, sec. 766, comment M. Again, if two parties have separate contracts with a third, each may resort to any legitimate means at his disposal to secure performance of his contract even though the necessary result will be to cause a breach of th\\\\e other contract. (Citing cases.)\\\" (Italics ours.)\\nIn the last mentioned opinion the court, commenting upon Boyson v. Thorn, supra, said: \\\"In California the case of Boyson v. Thorn, supra, has been considered by many as establishing the proposition that no action will lie in this state for inducing breach of contract by means which are not otherwise unlawful. In that case the manager of a hotel induced the owner of the hotel to evict plaintiffs in violation of a contract. The complaint expressly alleged the existence of malicious motives on the part of the manager. This court affirmed a judgment. entered on an order which sustained a demurrer without leave to amend, stating that an act otherwise lawful was not rendered unlawful by the existence of 'malice'. It is clear that the confidential relationship which existed between the manager of the hotel and the owner justified the manager in advising the owner to violate his contract with plaintiffs.\\\" (Italics ours.)\\nFrom the foregoing it thus appears that in neither of the two cases relied upon by plaintiff did any confidential or privileged relationship exist between the party sued for inducing a breach of contract and the party whom he influenced to break an agreement previously made with plaintiff. Likewise, in each of those cases the complaint failed to disclose that the party sued had any interest to protect which was involved in the contract which plaintiff claimed the defendant had caused to be broken, and which interest afforded justification to the party sued for interfering therein.\\nIt is equally clear that the California courts when they last spoke upon this subject affirmed the rules governing the same, as expounded in Restatement of the Law of Torts, and as applied to a state of facts such as were pleaded in Boyson v. Thorn, supra.\\nRestatement Torts, \\u00a7 767, declares:\\n\\\"In determining whether there is a privilege to act in the manner stated in section 766, the following are important factors:\\n\\\"(a) the nature of the actor's conduct,\\n\\\"(c) the relations between the parties,\\n\\\"(d) the interest sought to be advanced by the actor and\\n\\\"(e) the social interests in protecting the expectancy on the one hand and the actor's freedom of action on the other hand.\\\"\\nIn the comment on above clause (a) the text recites in part:\\n\\\"The nature of the actor's conduct is a chief factor in determining whether the conduct is privileged despite its harm to the other person. The issue is not simply whether the actor is privileged to cause the harm, but rather whether he is privileged to cause it in the manner in which he does cause it. The propriety of the means is not, however, determined as a separate issue unrelated to the other factors. (Vol. 4, p. 64) Economic pressure of various types is a common means of inducing persons not to deal with another, as when A refused to deal with B if B enters into or continues a relation with C, . The question whether such pressure is proper is answered in the light of the circumstances in which it is' exerted, the object sought to be accomplished by the actor, the degree of coercion involved, the extent of the harm which it threatens, the effect upon the neutral parties drawn into the situation, the effects upon competition, and the general reasonableness and appropriateness of this pressure as a means of accomplishing the actor's objective.\\\" (Vol. 4 pp 67-68.)\\nIn the comment on above clause (c) the text states in part: \\\"Since, broadly speaking, the question on the issue of privilege is whether the actor's conduct was fair and reasonable under the circumstances, the relation between the parties is an important factor in determining the answer\\\". (Vol. 4, pp. 68-69.)\\nAgain in the comment on above clause (d) the text declares: \\\"The correlative of the interest with which the actor interferes (see Comment c) is the interest which his conduct is intended to promote. Both are important in determining whether the conduct is privileged. And both are to be appraised in the light of the social interests which would be advanced by their protection.\\\" (Vol. 4, p. 69.)\\nWe have heretofore noted that according to the facts set forth in the fourth count Jergens was the sponsor of a program broadcast over the radio. Also that such program was designed to advertise and promote the sale of Jergens products, and that Lennen was its agent engaged in arranging such program, including the employment of radio talent. From these facts it would seem to follow that a confidential relationship existed between Jergens as principal and Lennen as agent, that the alleged agreement employing plaintiff to appear upon such radio program directly affected Jergen's business, and that the latter had an economic interest to protect, since obviously that interest might be adversely affected by what plaintiff did upon such program.\\nThe allegations in the fourth count to the effect that Jergens \\\"wrongfully\\\" induced Lennen to break the contractual relationships with plaintiff, and that the acts, etc., of Jergens constituted \\\"unjustifiable\\\" interference with the contractual relations existing between plaintiff and Lennen, are pure legal conclusions on the part of the pleader. Such recitals add nothing to the substance of the charge made in the fourth count.\\nApplying the principles expounded in the cases and in the text from which we have quoted to the facts pleaded leads us to conclude that Jergens was privileged to do the acts complained of, and hence the allegations of the fourth count fail to state facts sufficient for a cause of action, and the motions to dismiss the same should be granted.\\nMinute Order\\nFor the reasons set forth in the memorandum of conclusions this day filed it is ordered that the motions of each of the defendants to dismiss the first, second and fourth counts of the complaint be granted and that the motions to dismiss the third count be denied.\"}"
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+"{\"id\": \"4232528\", \"name\": \"Bradley Weston TAGGART, Plaintiff-Appellee, v. Stuart M. BROWN, Defendant, and Terry W. Emmert; Keith Jehnke; Sherwood Park Business Center, LLC, Defendants-Appellants\", \"name_abbreviation\": \"Taggart v. Brown\", \"decision_date\": \"2014-05-22\", \"docket_number\": \"No. 12-35781\", \"first_page\": \"719\", \"last_page\": \"720\", \"citations\": \"575 F. App'x 719\", \"volume\": \"517\", \"reporter\": \"West's Bankruptcy Reporter\", \"court\": \"United States Court of Appeals for the Ninth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T21:31:49.901978+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: ALARC\\u00d3N, TASHIMA, and IKUTA, Circuit Judges.\", \"parties\": \"Bradley Weston TAGGART, Plaintiff-Appellee, v. Stuart M. BROWN, Defendant, and Terry W. Emmert; Keith Jehnke; Sherwood Park Business Center, LLC, Defendants-Appellants.\", \"head_matter\": \"Bradley Weston TAGGART, Plaintiff-Appellee, v. Stuart M. BROWN, Defendant, and Terry W. Emmert; Keith Jehnke; Sherwood Park Business Center, LLC, Defendants-Appellants.\\nNo. 12-35781.\\nUnited States Court of Appeals, Ninth Circuit.\\nArgued and Submitted May 16, 2014.\\nFiled May 22, 2014.\\nJohn Martin Berman, John M. Berman, Tigard, OR, for Plaintiff-Appellee.\\nHollis Keith McMilan, Hollis K. McMi-lan, P.C., Portland, OR, for Defendants-Appellants.\\nBefore: ALARC\\u00d3N, TASHIMA, and IKUTA, Circuit Judges.\", \"word_count\": \"269\", \"char_count\": \"1796\", \"text\": \"MEMORANDUM\\nDefendants-Appellants appeal the district court's decision reversing the bankruptcy court and remanding for further proceedings. We dismiss the appeal for lack of jurisdiction under 28 U.S.C. \\u00a7 158(d).\\n\\\"Our jurisdiction under section 158(d) . requires a final decision from the district court.\\\" Stanley v. Crossland, Cross-land, Chambers, MacArthur & Lastreto (In re Lakeshore Vill. Resort, Ltd.), 81 F.3d 103, 105 (9th Cir.1996). Considering \\\"(1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court's role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm,\\\" id. at 106 (citing Vylene Enters., Inc. v. Naugles, Inc. (In re Vylene Enters., Inc.), 968 F.2d 887, 895-96 (9th Cir.1992)), we hold that the district court's decision, which remanded to the bankruptcy court for further factual findings, does not constitute a final order under \\u00a7 158(d). See Cangrejo Invs., LLC v. Mann (In re Bender), 586 F.3d 1159, 1165-66 (9th Cir.2009).\\nThe appeal from the district court is hereby DISMISSED, and the case is REMANDED for further proceedings. No costs.\\nThis disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.\"}"
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+"{\"id\": \"4249881\", \"name\": \"JICARILLA APACHE NATION, Plaintiff, v. UNITED STATES, Defendant\", \"name_abbreviation\": \"Jicarilla Apache Nation v. United States\", \"decision_date\": \"2016-04-13\", \"docket_number\": \"No. 02-25L\", \"first_page\": \"118\", \"last_page\": \"124\", \"citations\": \"126 Fed. Cl. 118\", \"volume\": \"126\", \"reporter\": \"Federal Claims Reporter\", \"court\": \"United States Court of Federal Claims\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:40:14.782171+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JICARILLA APACHE NATION, Plaintiff, v. UNITED STATES, Defendant.\", \"head_matter\": \"JICARILLA APACHE NATION, Plaintiff, v. UNITED STATES, Defendant.\\nNo. 02-25L\\nUnited States Court of Federal Claims.\\n(Filed: April 13, 2016)\\nSteven D. Gordon, Holland & Knight, LLP, Washington, D.C., for plaintiff. With him at the hearing was Christine Walz, Holland & Knight, Washington, D.C.\\nStephen Finn, Trial Attorney, Natural Resources Section, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for defendant. With him on the briefs were John C. Cruden, Assistant Attorney General, and Stephen R. Terrell, Trial Attorney, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C. Of counsel was Barbara M.R. Marvin, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., Gladys Cojo-cari, Dondrae Maiden, Holly Clement, Michael Bianco, and Karen Boyd, Office of the Solicitor, United States Department of the Interior, Washington, D.C., and Thomas Kearns and Rebecca Saltiel, Bureau of the Fiscal Service, United States Department of the Treasury, Washington, D.C.\", \"word_count\": \"3546\", \"char_count\": \"22376\", \"text\": \"Indian breaeh-of-trust ease; claim of alleged breach of fiduciary duties by the Bureau of Indian Affairs as trustee of Tribe's funds; Phase 2 of case; pre-trial in limine motions\\nOPINION AND ORDER\\nLETTOW, Judge.\\nPlaintiff Jicarilla Apache Nation (\\\"Jicaril-la\\\") has filed two motions in limine seeking to prevent the government from introducing various exhibits and expert testimony into evidence during the Phase 2 trial scheduled to take place in July 2016 in this Indian breach-of-trust case. See Pl.'s Mot. in Li-mine to Exclude Exhibits Pertaining to Private Investments (\\\"Pl.'s Private Invest. Mot.\\\"), ECF No. 413; Pl.'s Mot. in Limine to Exclude the Testimony of William G. Hamm (\\\"Pl.'s Hamm Mot.\\\"), ECF No. 414. Jicarilla contends that Dr. William Hamm, one of the government's proposed 'expert witnesses, is not qualified to opine on damages resulting from allegedly imprudent investment activities. Jicarilla further asserts that aspects of Dr. Hamm's testimony regarding pre-judgment interest, along with several proffered exhibits regarding Jicarilla's private non-trust investments, are irrelevant to this ease and should be excluded. A hearing on these motions was held on April 4, 2016.\\nBACKGROUND\\nJicarilla alleges that the United States (\\\"defendant\\\" or \\\"government\\\") through the actions of the Bureau of Indian Affairs (\\\"BIA\\\"), Department of the Interior, breached its fiduciary duties as trustee of Jicarilla's funds by making imprudent investment choices between 1974 and 2012. See Pl.'s Mem. of Contentions of Fact and Law (Phase 2 Trial) (\\\"Pl.'s Pre-Trial Br.\\\") at 1, ECF No. 442; see also Am. Compl., ECF No. 12. This case was originally assigned to Judge Francis M. Allegra, who bifurcated it into three phases. Order of Oct. 7, 2008, ECF No. 152. Phase 1 would cover claims relating to defendant's alleged mismanagement of trust funds prior to September 30, 1992, id., Phase 2 would cover fund-mismanagement claims after that date, Hr'g Tr. 12:13-22 (Jan. 14, 2016), ECF No. 461, and Phase 3 would relate to oil and gas and timber claims, id. Judge Allegra held a trial in November 2011 on Phase 1 and found that the United States had \\\"grossly mismanaged [Jicarilla's] funds\\\" during the pertinent time, \\\"entitling plaintiff to damages in the amount of $21,017,491.99.\\\" Jicarilla Apache Nation v. United States, 112 Fed.Cl. 274, 278 (2013) (the \\\"Phase 1 award\\\"). Nonetheless, Judge Allegra declined to enter final judgment on Phase 1 until after Phase 2 had concluded. His deci sion to defer judgment was based on Jicaril-la's claim that the Phase 1 award should have been included in its federal trust account as of October 1992. Therefore, in Jicarilla's view, it is entitled to additional investment returns on that Phase 1 award during the Phase 2 period. Owing to this claim, Judge Allegra decided that Phase 1 damages could be finally decided only as a component of a judgment reached at the culmination of Phase 2. Id. at 312, (\\\"[QJuestions regarding how much [Jicarilla's] accounts would have increased from October 1, 1992 to present day are inextricably intertwined with the calculation of other underinvestment damages owed, if any, for the same period.\\\"). For these reasons, this court's Phase 2 decision will result in a final judgment covering both Phases 1 and 2.\\nJudge Allegra scheduled a trial on Phase 2 to begin April 20, 2016. Order of Oct. 20, 2014, EOF No. 410. Because of Judge Allegra's untimely illness and death, however, that trial date was vacated and the case was reassigned, first to Judge Mary Ellen Coster Williams and then to the undersigned. See Order of Jan. 7, 2016, EOF No. 466. Trial of Phase 2 is now scheduled to begin on July 11, 2016. Order of Jan. 14, 2016, EOF No. 459.\\nPhase 2 presents the questions of (1) whether the United States breached its fiduciary duties by imprudently investing funds in Jicarilla's Proceeds of Labor account, which receives funds from severance, timber, mineral, ranching, and farming activities; (2) whether the United States breached its fiduciary duties by imprudently investing funds in Jicarilla's Water Rights Settlement Account, which was created by statute, see Pub.L. No. 102-441, \\u00a7 8,106 Stat. 2237, 2239 (forming the \\\"Jicarilla Apache Water Resources Development Trust Fund\\\"); and (3) whether Jicarilla is entitled to further investment returns on the Phase 1 award during the Phase 2 period. Pl.'s Pre-Trial Br. at 1; United States' Phase 2 Pre-Trial Mem. of Contentions of Fact and Law (\\\"Def.'s PreTrial Br.\\\") at 5-6, ECF No. 441; see also Jicarilla, 112 Fed.Cl. at 311-12.\\nThe Phase 2 trial promises to be a \\\"battle of the experts . over whether the funds in Jicarilla's accounts were prudently invested and, if not, how great a loss Jicarilla suffered.\\\" Pl.'s Pre-Trial Br. at 2. To prove its case, Jicarilla will generally rely upon expert testimony from Kevin W. Nunes and Peter A. Ferriero of Rocky Hill Advisors, Inc., who reportedly will offer evidence that the government improperly focused on short-term and undiversified investment strategies. Id. The government indicates it will respond by offering evidence that its investment strategies were reasonable under the circumstances, given statutory and regulatory limitations and Jicarilla's preferences and liquidity needs. Defi's Pre-Trial Br. at 5. The government's case will be supported with expert testimony from Professor Laura Starks and Dr. William Hamm. Id. at 25-28. Jicarilla will rebut these witnesses with expert testimony from Professor Michael Gold-stein. Pl.'s Pre-Trial Br. at 17.\\nANALYSIS\\nPursuant to Fed.R.Evid. 104(a), a trial judge must determine \\\"at'the outset\\\" whether an expert witness is qualified or whether his or her opinions constitute admissible evidence. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). \\\"These matters should be established by a preponderance of proof.\\\" Id. at 592, 113 S.Ct. 2786 n.10 (citing Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)).\\nA. Jicarilla's Motion to Exclude the Testimony of Dr. William G. Hamm\\nJicarilla makes two arguments regarding Dr. Hamm's testimony. First, Jicarilla contends that Dr. Hamm should be prohibited from testifying about pre-judgment interest on the $21 million Phase 1 award because the issue is irrelevant. Pl.'s Hamm Mot. at 1. Second, Jicarilla asserts that Dr. Hamm should not be allowed to testify about whether the investment strategies adopted by BIA were prudent and about damages suffered by Jicarilla because he is not an expert on management of trust funds. Id.\\n1. Relevance of testimony about prejudgment interest.\\nThe government proposes to have Dr. Hamm testify about what interest rate could be applied to the Phase 1 award to determine how it might have grown during Phase 2. Def.'s Opp'n to Pl.'s Hamm Mot. (\\\"Def.'s Hamm Opp'n\\\") at 5, ECF No. 416. In response, Jicarilla argues that Dr. Hamm's testimony about interest rates is irrelevant because Jicarilla does not seek interest on the $21 million award. Pl.'s Hamm Mot. at 1. Rather, Jicarilla concurs with Judge Allegra's ruling at the end of the first trial that \\\"what plaintiff seeks as additional damages is investment income it claims was lost during the period between October 1, 1992 and the end of fiscal year 2011 [now September 30, 2012].\\\" Pl.'s Hamm Mot. at 10-11 (quoting Jicarilla, 112 Fed.Cl. at 311) (alteration in motion). This is income that \\\"would have been received if the amount of principal produced by proper investment practices as of October 1, 1992, were further invested properly.\\\" Id. The income \\\"does not represent interest on the damages owed, but rather is an actual component of those damages.\\\" Id.\\n\\\"Evidence is relevant if . it has any tendency to make a fact more or less probable\\\" and \\\"the fact is of consequence in determining the action.\\\" Fed.R.Evid. 401; see also Fed.R.Evid. 402 (relevant evidence is admissible unless barred by some source of law). In this case, pre-judgment interest is not \\\"of consequence in determining the action\\\" pursuant to Rule 401 because Jicarilla does not seek pre-judgment interest. Instead, in Phase 2, the court will focus on \\\"the prudence of defendant's investment practices during [the] extended period,\\\" \\\"the alternative investments that might have been available during [that time],\\\" and particularly an \\\"appropriate investment proxy\\\" for that duration. Jicarilla, 112 Fed.Cl. at 311. Accordingly, testimony about pre-judgment interest during the Phase 2 period is irrelevant and shall not be admitted into evidence.\\n2. Qualification of Dr. Hamm as an expert witness on prudent trust strategies.\\nPursuant to Fed.R.Evid. 702, \\\"[a] witness who is qualified as an expert by knowledge, skill, experience, .training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact .; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.\\\" Dr. Hamm, an economist by training who has overseen and advised several investment funds, is projected to testify about the correct measure of damages if the court should find a breach of duty. In general, he assumes various breaches of duty and then uses different investment benchmarks that approximate a hypothetical but-for world in which there is no breach. See, e.g., PL's Hamm Mot. Ex. 1 (\\\"Hamm Report\\\") \\u00b6 139, 158,162. Jicarilla contends that Dr. Hamm's opinions are \\\"unreliable\\\" and that he is not \\\"qualified\\\" to opine on these subjects. PL's Hamm Mot. at 11, 14. The government's contravening opposition emphasizes Dr. Hamm's \\\"forty-six year career in economics[, which] has encompassed significant investment-related experience in both the public and private sectors.\\\" Def.'s Hamm Opp'n at 6. Jicarilla counters that Dr. Hamm \\\"has never been a professional investment manager and [that his] very limited experience in investment management (or the investment of trust funds) qualifies him, at best, as a knowledgeable amateur.\\\" PL's Hamm Mot. at 13,\\nDr. Hamm has a Ph.D. in economics from the University of Michigan, and he has studied financial risk, modern portfolio theory, and the time value of money. Def.'s Hamm Opp'n, Ex. 1 (Dep. of William G. Hamm (\\\"Hamm Dep.\\\")), at 21:2-12; Ex. 2, (Deck of William G. Hamm (\\\"Hamm Decl.\\\")) \\u00b63. He spent ten years working in the field of finance, and he served as Chief Operating Officer of the Federal Home Loan Bank of San Francisco, where he \\\"was accountable to the President and the Board of Directors for the prudent management of a $5-6 billion fixed-income investment portfolio, as well as a portfolio of complex derivative instruments with a notional value of $30 billion.\\\" Hamm Deck \\u00b6 5 (footnote omitted). He also served on the investment committees of LECG, LLC; Freedom from Hunger; and Berkeley Research Group, LLC. Id. \\u00b67. He states that the Berkeley Research Group committee managed roughly $40 million in 401-k contributions made by more than 600 company employees. Id. \\u00b6 8. He described his analytical methodology in his expert report, which focused on determining Jicarilla's actual non-investment receipts and disbursements, analyzing the Tribe's liquidity needs, and identifying alternative investment strategies. Hamm Report \\u00b6 82. In his work on this case, Dr. Hamm avers that he reviewed documents relevant to deriving a prudent strategy for investing of Jicarilla's trust funds. Id. Even so, in his deposition, he conceded that he \\\"didn't really review the government's management of the trust fund,\\\" Hamm Dep. 44:13-14, but rather was \\\"looking at what a hypothetical prudent trustee would have done under th[e] circumstances,\\\" id. 44:21 to 45:2; see also Hamm Report \\u00b6 81-85; id. \\u00b6 86-163 (setting out hypothetical returns in a non-breach world, and explaining selection of various benchmarks).\\nJicarilla insists that Dr. Hamm's opinion is not based on \\\" 'reasoning or methodology . beyond his observations based on the facts in evidence'\\\" and that \\\"his ejqperience in this field is simply too meager to warrant any reliance by this [c]ourt.\\\" Pl.'s Hamm. Mot. at 14 (quoting Westfed Holdings, Inc. v. United States, 55 Fed.Cl. 544, 573 (2003), ajfd in part and rev'd in part on other grounds, 407 F.3d 1352 (Fed.Cir.2005)). In Westfed, the government proffered Dr. Hamm as an expert on the thrift industry and banking. 55 Fed.Cl. at 569-70. The plaintiff in that case similarly argued that Dr. Hamm's opinion was based only upon documents produced by the parties, and that he had too little experience to offer a reliable opinion on that basis. Id. at 573. Although the Westfed court commented that it could not prior to trial \\\"discern a particular reasoning or methodology\\\" that had been applied by Dr. Hamm \\\"beyond his observations based on the facts in evidence,\\\" id. it ultimately decided not to preclude Dr. Hamm's testimony but rather \\\"to admit the testimony and give it such weight as the court finds it to be entitled to,\\\" id. at 575.\\nHere, Dr. Hamm's report generally explains the methodology underlying his opinion. Hamm Report \\u00b682. That explanation suffices for the purpose, even though Dr. Hamm may not previously have applied the particular identified methodology in any of his prior work and experience. See City of Farmington Hills Emps. Ret. Sys. v. Wells Fargo Bank, N.A., 979 F.Supp.2d 981, 999 (D.Minn.2014) (permitting economist to opine on prudence and damages in action alleging imprudent investment, based on hypothetical benchmark comparison analysis). Given his background, the court tentatively finds that Dr. Hamm may be \\\"qualified as an expert\\\" on prudent investment \\\"by knowledge, skill, experience, training, [and] education\\\" within the meaning of Fed.R.Evid. 702. See Alco Indus., Inc. v. Wachovia Corp., 527 F.Supp.2d 399, 405-06 (E.D.Pa.2007) (permitting economist to serve as expert witness as to whether investment portfolio was diversified, in action alleging breach of fiduciary duty by imprudent investment). The court will make a final determination about Dr. Hamm's qualifications after voir dire at trial.\\nB. Jicarilla's Motion to Exclude Evidence of Its Private, Non-Trust Investments\\nJicarilla challenges the government's expressed intent to seek admission at trial of selected documents relating to Jicarilla's private investment decisions during the Phase 2 period. Pl.'s Private Invest. Mot. at 3 & Sched. A (listing the documents to which Jicarilla objects). The \\\"vast majority\\\" of these documents are account statements from 1993 to 1997 for a single account held by Jicarilla at Sunwest Bank. Id. Additionally, a limited set of documents related to Jicarilla's Water Rights Trust Fund Application are also at issue. See id. at 4. Jicarilla concedes that the Sunwest account documents on a contemporaneous basis were be fore the Superintendent of the Jicariila Agency of the BIA because it had explicitly provided those documents to the Superintendent, Id. at 8. The Tribe represents that the Sunwest account \\\"was established to receive earnings and periodic transfers from [Jicarilla's per capita distribution fund]'s principal, which were then distributed to tribal members based on\\\" tribal council instructions. Id. In its motion, Jicariila contends that this evidence is inadmissible under Fed.R.Evid. 401 because the manner in which Jicariila invested these particular private funds is not relevant to the court's determination of whether the United States prudently invested Jicarilla's trust funds. Id. at 1.\\nAs set out supra, at 121, evidence is relevant if it has \\\"any tendency to make a fact more or less probable\\\" and the fact is \\\"of consequence in determining the action.\\\" Fed.R.Evid. 401; see also Fed.R.Evid. 402 (providing that relevant evidence is admissible). \\\"The Rule's basic standard of relevance thus is a liberal one.\\\" Daubert, 509 U.S. at 587, 113 S.Ct. 2786.\\nJicariila avers that it had provided the Sunwest account documents to the Superintendent \\\"so that [the government could confirm that Jicarilla's money managers had invested the funds in the Income/Distribution Account in accordance with the strictures of 25 U.S.C. \\u00a7 162a.\\\" Pl.'s Private Invest. Mot. at 5. Jicariila accepts the general proposition that \\\"information about the nature of the recipient accounts is relevant to testing [the] assumption that transfers to the tribe's private accounts were 'non-consumptive.' \\\" Pl.'s Reply in Support of Private Invest. Mot. (\\\"Pl.'s Reply\\\") at 3, EOF No. 437-1. Non-consumptive withdrawals are indicative of tribal liquidity needs and of expert analysis of those needs. In contesting the relevance of the Sunwest account documentation, Jicar-illa principally relies on two salient facts, viz., that the particular Sunwest account is not representative of the Tribe's private investment strategies because the Sunwest account had a limited purpose \\u2014 to hold funds prior to per capita distributions to tribal members\\u2014 and that the account constituted a very small proportion of the Tribe's total funds held for private investment. Hr'g Tr. 20:1-13 (Apr. 4, 2016), EOF No. 465. Jicariila also contends that the government's managers of trust funds held for the Tribe either were not aware of the Sunwest account or did not pay any attention to the investment criteria the Tribe applied to that account in setting the investment strategy appertaining to the trust funds the government held for the Tribe. Hr'g Tr. 19:13-25.\\nSeparately, Jicariila acknowledges that its Water Rights Trust Fund Application, Pl.'s Private Invest. Mot., Schedule A, JX 714, is \\\"relevant to demonstrate its investment goals for the Water Rights Trust Fund and its strategy for achieving those goals.\\\" Pl.'s Reply at 1. This acknowledgement is of limited evidentiary importance because the government states that it \\\"does not seek to introduce\\\" the application \\\"to prove the manner in which Jicariila generally invested its private funds.\\\" United States' Opp'n to Private Invest. Mot. at 10, EOF No. 417.\\nThe parties have contested the import of an order entered by Judge Allegra that resolved a dispute in which Jicariila sought a protective order to bar discovery into its private investments. Jicarilla Apache Nation v. United States, 88 Fed.Cl. 1, 19-21 (2009). In that instance, the United States sought documents that were not already in its possession. But here, the United States seeks to admit documents that it had in its possession during the disputed periods of time. These documents may be probative of whether \\\"the BIA calibrated its investments to take into account Jicarilla's non-trust ventures,\\\" which purpose Judge Allegra's prior order implicitly approved. Id. at 21.\\nOverall, the court discerns no basis on which to preclude the government from seeking to introduce at trial the two limited categories of documentary exhibits related to Jiearilla's investment of its private funds. The extent to which those documents disclose or pertain to an overarching investment strategy employed by the Tribe for its private funds remains to be established, and the court cannot now answer the questions of whether the government's trust fund managers were aware of the documents and whether they took them into account in investing the Tribe's trust funds. Those matters must be resolved at trial.\\nCONCLUSION\\nPlaintiffs motion to exclude testimony of Dr. Hamm, EOF No. 414, is GRANTED IN PART, ie.; with respect to pre-judgment interest, but is otherwise DENIED. Plaintiffs motion to exclude exhibits -pertaining to private investments, ECF No. 413, is DENIED.\\nIt is so ORDERED.\\n. The case has an extensive history, having been before the Supreme Court, see United States v. Jicarilla Apache Nation, 564 U.S. 162, 131 S.Ct. 2313, 180 L.Ed.2d 187 (2011) (ruling that the common law \\\"fiduciary\\\" exception to attorney-client privilege did not extend to the federal government in its capacity as \\\"trustee\\\" of Indian funds), the Court of Appeals for the Federal Circuit on several occasions, see, e.g., In re United States, 590 F.3d 1305 (Fed.Cir.2009), rev'd and remanded sub nom. United States v. Jicarilla Apache Nation, 564 U.S. 162, 131 S.Ct. 2313, 180 L.Ed.2d 187, and this court on numerous occasions, see, e.g., Jicarilla Apache Nation v. United States, 120 Fed.Cl. 135 (2015) (staying the parties' obligations under the court's pretrial order for the second phase of the litigation).\\n. Jicarilla's Water Rights Trust Fund application does not provide direct evidence of Jicarilla's private investments. Rather, that application provided general information about Jicarilla's investment goals and strategies:\\nJicarilla's application to remove these funds from trust included detailed information on its private investments and money managers, . to meet a regulatory requirement that a distribution plan demonstrate \\\"[tjribal investment goals and the strategy for achieving them\\\" with respect to the Water Rights Trust Fund. See 11 C.F.R. \\u00a7 1200.14.\\nPL's Private Invest. Mot. at 4.\\n. Further citations to the hearing shall omit the date.\"}"
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+"{\"id\": \"4250228\", \"name\": \"UNITED STATES of America, Plaintiff-Appellee, v. Lonnie Ray DAVIS, Defendant-Appellant\", \"name_abbreviation\": \"United States v. Davis\", \"decision_date\": \"2009-04-30\", \"docket_number\": \"No. 07-1964\", \"first_page\": \"351\", \"last_page\": \"353\", \"citations\": \"326 F. App'x 351\", \"volume\": \"326\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Sixth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:33:11.505466+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: MARTIN and GILMAN, Circuit Judges; and DOWD, District Judge.\", \"parties\": \"UNITED STATES of America, Plaintiff-Appellee, v. Lonnie Ray DAVIS, Defendant-Appellant.\", \"head_matter\": \"UNITED STATES of America, Plaintiff-Appellee, v. Lonnie Ray DAVIS, Defendant-Appellant.\\nNo. 07-1964.\\nUnited States Court of Appeals, Sixth Circuit.\\nApril 30, 2009.\\nBefore: MARTIN and GILMAN, Circuit Judges; and DOWD, District Judge.\\nThe Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern District of Ohio, sitting by designation.\", \"word_count\": \"676\", \"char_count\": \"4136\", \"text\": \"REVISED OPINION\\nBOYCE F. MARTIN, JR., Circuit Judge.\\nLonnie Ray Davis challenges his convictions for being a felon in possession of a firearm and possession of cocaine base with intent to distribute. Davis's convictions arose out of evidence recovered during a traffic stop, and Davis argues that this evidence should have been suppressed because the officer did not have probable cause to pull him over on suspicion of driving with obstructed vision. We disagree, and thus AFFIRM.\\nI.\\nThe parties stipulated the following facts. Early on January 13, 2006, Lonnie Ray Davis was driving south on Middlebelt Road outside of Detroit, Michigan. At approximately 2:10 a.m., Westland police officer Pat Griffin encountered Davis while on patrol. Seeing a a four-inch tall \\\"Tweety Bird\\\" air-freshener doll hanging from Davis's rearview mirror, Officer Griffin stopped Davis on suspicion of violating Mich. Comp. Laws \\u00a7 257.709(l)(c), which prohibits driving a motor vehicle with \\\"a dangling ornament or other suspended object that obstructs the vision of the driver of the vehicle.\\\"\\nWhen Officer Griffin asked for Davis's license, Davis admitted that he did not have one. Officer Griffin then placed Davis under arrest. During a search incident to arrest, Officer Griffin found a stun gun, $655 in cash, an open pint of Hennessy cognac, and two baggies containing 23.9 grams of cocaine base. Officer Griffin also recovered a loaded Grendel .380 caliber pistol after Davis told him that there was a gun in the car.\\nDavis was charged with being a felon in possession of a firearm and possession of cocaine base with intent to distribute. He moved to suppress the evidence obtained during the traffic stop on the grounds that the stop was made without probable cause, but the district court denied his motion. Davis then entered a conditional plea of guilty for both offenses and was sentenced to 188 months in prison. He now appeals the district court's denial of his motion to suppress.\\nII.\\nIn view of the broad scope of Mioh. Comp. Laws \\u00a7 257.709(l)(c), we cannot accept Davis's argument that police lacked probable cause to stop him based upon the Tweety Bird. The law's language is unqualified: an obstruction of any size for any amount of time falls within it. Consequently, the mere sight of the dangling Tweety Bird supplied the \\\"quantum of individualized suspicion\\\" sufficient to establish probable cause to believe that Davis was violating \\u00a7 257.709(1)(C). Whren v. United States, 517 U.S. 806, 817, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (quoting Delaware v. Prouse, 440 U.S. 648, 654-55, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). Thus the stop was reasonable under the Fourth Amendment, and the district court correctly denied Davis's motion to suppress. See Whren, 517 U.S. at 810, 116 S.Ct. 1769 (\\\"[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.\\\"); see also United States v. Delfin-Colina, 464 F.3d 392, 400-01 (3d Cir.2006) (upholding a stop based upon a necklace hanging down almost to the dashboard); United States v. Ramos-Caraballo, 375 F.3d 797, 799 (8th Cir.2004) (upholding a stop based upon a 7-3/4 inch air freshener); United States v. Smith, 80 F.3d 215, 219 (7th Cir.1996) (upholding a stop based upon an air freshener).\\nIII.\\nAccordingly, we AFFIRM the judgment of the district court.\\n. Neither Davis nor the arresting officer testified at Davis's suppression hearing regarding the circumstances of the stop. But Davis does not contest the government's version of the facts, so we accept it as true.\\n. We thank the State of Michigan for submitting its views on whether this law is void for vagueness. Because Davis did not raise this question, we decline to reach it here.\"}"
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+"{\"id\": \"4273230\", \"name\": \"Joseph (\\\"Jay\\\") V. PATERNO, et al., Plaintiffs v. The PENNSYLVANIA STATE UNIVERSITY, Defendant\", \"name_abbreviation\": \"Paterno v. Pennsylvania State University\", \"decision_date\": \"2016-02-25\", \"docket_number\": \"CIVIL ACTION NO. 14-4365\", \"first_page\": \"530\", \"last_page\": \"544\", \"citations\": \"149 F. Supp. 3d 530\", \"volume\": \"149\", \"reporter\": \"Federal Supplement 3d\", \"court\": \"United States District Court for the Eastern District of Pennsylvania\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:02:00.110445+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Joseph (\\u201cJay\\u201d) V. PATERNO, et al., Plaintiffs v. The PENNSYLVANIA STATE UNIVERSITY, Defendant.\", \"head_matter\": \"Joseph (\\u201cJay\\u201d) V. PATERNO, et al., Plaintiffs v. The PENNSYLVANIA STATE UNIVERSITY, Defendant.\\nCIVIL ACTION NO. 14-4365\\nUnited States District Court, E.D. Pennsylvania.\\nSigned 02/25/2016\\nEdward S. Mazurek, The Mazurek Law Firm LLC, Maurice R. Mitts, Gerard M. McCabe, Mitts Law, LLC, Philadelphia, PA, for Plaintiffs.\\nJoseph F. O\\u2019Dea, Jr., Nicholas J. Nasta-si, Jr., Saul Ewing LLP, Philadelphia, PA, for Defendant.\", \"word_count\": \"7230\", \"char_count\": \"44861\", \"text\": \"MEMORANDUM\\nSTENGEL, District Judge\\nTwo former assistant football coaches bring this action against the Pennsylvania State University alleging federal and state law violations in the termination of their employment. Specifically, they claim: (1) a violation of their civil rights for the deprivation of their liberty and property interests without due process of law pursuant to 42 U.S.C. \\u00a7 1983; (2) intentional interference with prospective contractual relations; (3) civil conspiracy; (4) a violation of the Pennsylvania Wage Payment and Collection Law, 43 P.S. \\u00a7 260.1, et seq,; and (5) breach of contract. The defendant has filed a motion to dismiss to which the plaintiffs have responded. For the following reasons, I will grant the motion to dismiss.\\nI. BACKGROUND\\nA. The Sandusky Scandal and Penn State's Response\\nJay Paterno and William Kenney contend that in mid-January 2012, they were fired by the Pennsylvania State University (\\\"Penn State\\\") in response to the publicity surrounding the conduct of Gerald A. San-dusky, a former assistant football coach at Penn State. In November 2011, Sandusky was charged with various crimes, including aggravated criminal assault, corruption of minors, unlawful contact with minors, and endangering the welfare of minors. On June 22,- 2012, a jury in Centre County, Pennsylvania found Mr. Sandusky guilty of forty-five of the forty-eight criminal charges filed against him. He was sentenced to thirty to sixty years in prison.\\nOn November 4, 2011, the Attorney General of Pennsylvania also filed criminal charges against Penn State's Athletic Director and its Senior Vice President of Finance and Business for failing to report allegations of child abuse against Mr. San-dusky to law enforcement or child protection authorities in 2002 and for committing perjury before the grand jury in January 2011. See Am. Compl., Exhibit F at 13. Almost a year later, Penn State's former president was charged by a grand jury with obstructing justice, endangering the welfare of children, perjury, and conspiracy. These three former Penn State officials have yet to go to trial.\\nOn November 9, 2011, the Board of Trustees of Penn State voted to relieve Joe Paterno of his responsibilities as head football coach effective immediately. See Am. Compl. \\u00b6 45. The Board of Trustees stated that Joe Paterno had demonstrated a \\\"failure of leadership\\\" by only fulfilling his legal obligation to inform another Penn State official, Penn State's Athletic Director Tim Curley, about a 2001 incident involving Mr. Sandusky and a minor, and by not going to the police himself. Id. \\u00b6 46.\\nOn November 11, 2011, two days after terminating Head Coach Joe Paterno, Penn State's Board of Trustees formed a Special Investigations Task Force, which engaged the firm of Freeh Sporkin & Sullivan! LLP (the \\\"Freeh Firm\\\"), to investigate: (1) the alleged failure of Penn State personnel to respond to and report to the appropriate authorities the sexual abuse of children by Mr. Sandusky, a former football coach, see Am. Compl. \\u00b6 47; and (2) the circumstances under which such abuse could occur in Penn State facilities or under the auspices of Penn State programs for youth. See Am. Compl., Exhibit'F. Further, Penn State asked the Freeh Firm to provide recommendations -regarding university governance, oversight, and administrative policies and procedures to help Penn State adopt policies and procedures to more effectively prevent or respond to incidents of sexual abuse-of minors in the future. Id. \\u00b6 48. The plaintiffs note that Penn State, however, had not engaged the Freeh Firm, and had not granted any authority, to the Freeh Firm, to investigate or even consider whether any of the actions under its review constituted violations of the NCAA's rules.\\nIn announcing the investigation, Trustee Kenneth C. Frazier made the following public.statement: \\\"No one is above scrutiny. [The Freeh Firm] has complete rein to follow any lead,, to look into every corner of the University to get to the bottom of what happened and then to make recommendations that ensure that it never happens again.\\\" See Am.Compl., Exhibit F.\\nOn November 17, 2011, Mark A. Em-mert, President of the- National Collegiate Athletic Association (\\\"NCAA\\\"), sent a letter to Rodney A. Erickson, Penn State's Interim President, expressing concerns over, the grand jury presentments, that were ongoing with .the criminal investigation into the Sandusky scandal. Mr. Em-mert asserted that the NCAA had jurisdiction over the matter and that the NCAA might take an enforcement action against Penn State. Id. \\u00b6 50. Mr. Emmert's letter stated that the \\\"individuals with present or former administrative or coaching responsibilities may have been aware of this behavior;\\\" and \\\"if true, individuals who were in a position to monitor and act upon learning of potential abuses appear to have been acting starkly contrary to the values of higher education, as'well as-the NCAA.\\\" See Am. Compl., Exhibit B.\\nThe Emmert Letter also indicated that \\\"the NCAA will examine- Penn State's exercise of institutional control over its intercollegiate athletic programs, as well as the actions, and inactions, of relevant responsible personnel.\\\" See' Am. Compl. \\u00b6 52. Mr. Emmert further asserted in his letter that the NCAA's Constitution \\\"contains principles regarding institutional control and responsibility\\\" and \\\"ethical conduct,\\\" and that those, provisions may justify the NCAA's involvement. Id. \\u00b6 56. He advised Penn State that it would need to \\\"prepare for potential inquiry\\\" by the NCAA. Id. \\u00b6 57.\\nB. The Hiring of a New Head Football Coach\\nOn January 6, 2012, Penn State announced that it had selected William J. O'Brien as Penn State's new head football coach. Id. \\u00b662. The amended complaint states, \\\"[thereafter, O'Brien elected not to retain and otherwise released Plaintiffs as assistant football-coaches with the Penn State football program.\\\" Id. \\u00b6 63. It further alleges that the plaintiffs both had exemplary reputations where they brought considerable distinction and acclaim to Penn State during their respective lengthy years of service. Id. \\u00b6 4. They even allege that there had been a widely-shared belief among professional and collegiate football organizations that, based upon the plaintiffs' reputations-and successes as assistant football coaches, they would have been well-sought after and desired prospective coaches, either as head coaches or assistant coaches, had they decided to leave their positions with Penn State. Id. \\u00b6 19. The plaintiffs insist that because. ,of the temporal proximity to the events surrounding the Sandusky scandal in conjunction with Penn State's subsequent execution of a Consent Decree, their termination had the effect of branding and stigmatizing the plaintiffs as participants in the San-dusky scandal and, by so doing, maligned the plaintiffs' stellar reputations by portraying them by implication in false light. Id. \\u00b6 69.\\nIn its press release on January 6, 2012 announcing Coach O'Brien's hiring, Penn State indicated that it had been looking \\\"for someone with some very special qualities, beginning with a heart that beats to the values and vision of Penn State University and our Penn State football legacy and tradition,\\\" and that Coach O'Brien exemplified those traits. Coach O'Brien stated, -\\n\\\"I am thrilled to be the head coach of the Penn State football program. I cannot tell you how excited I am to get started, meet the team, meet the football alumni and meet all of the -people that make this University so special! As head coach of this special football program, it is my responsibility to ensure that this program represents the highest level of character, respect and integrity in everything we do. That includes my coaching staff, our players and' everyone involved in the football program.\\\"\\nSee Am. Compl, Exhibit C.\\nBy mid-February 2012, Coach O'Brien completed the hiring of his assistant football coaches. Id. \\u00b675. On February 18, 2012, Penn State issued-a press release, quoting the new head coach:\\n\\\"With the hiring of Charlie Fisher as quarterbacks coach, we have completed the Penn State football coaching staff,\\\" O'Brien stated. \\\"This is a staff made up of men who care about the mission of Pehn State University and being successful on and off the field. It is also a staff of winners, with five staff members that have been a part of national championship teams as assistant\\\" coaches. This is a staff that has won many games; some while being a part of the same staff, and is a staff comprised of former head coaches, coordinators and tremendous recruiting experience.\\\"\\nSee Am. Compl. \\u00b6 76; see also Am.'Compl, Exhibit E.\\n. C. The Freeh Report and the NCAA Sanctions\\nOn July 12, 2012, the Freeh Firm published its report. Id. \\u00b6 82; The report was riot voted on or approved by Penn State's full Board of Trustees. Id. \\u00b684. According to the report, in order to avoid the consequences of bad publicity, the most powerful 'leaders at Penn State repeatedly concealed critical facts relating to Mr. Sandusky's abuse from law enforcement authorities, the University's Board of Trustees, the Penn State community, and the public at large. Id. \\u00b6 86. Within hours of the release of the Freeh Report and before all members of the Board of Trustees even had an opportunity to read the full Report, discuss it, or vote on its contents, certain Penn State officials held a press conference and released a written statement asserting that the Board of Trustees accepted full responsibility for the purported failures outlined in' the Freeh Report.\\nOn July 22, 2012, the NCAA prepared a Consent Decree, Resulting in the imposition of drastic sanctions against Penn State and its football program, including the imposition of over $60 million in p\\u00e9nalties, a four-year post-season play ban,' a loss of athletic scholarships, and a vacating of football wins since 1998. Penn State agreed to and executed the Consent Decree, which adopted the findings of the Freeh Report. Id. \\u00b6 89, 90. The amended complaint asserts that\\nPenn State collaborated with the NCA\\u00c1 and the Freeh Firm, recklessly disregarding the plaintiffs' procedural due process safeguards by imposing sanctions against Penn State and issuing the Consent Decree in a criminal matter unrelated to recruiting and athletic competition (and thus outside of the NCAA's jurisdiction), and falsely accusing Plaintiffs with malice of enabling and acting with complicity with child sexual abuse.\\nId. \\u00b6 91.\\nIn the Consent Decree, Penn State agreed to \\\"waive[] any claim to further process, including, without limitation, any right to a determination of violations by the NCAA Committee on Infractions, any appeal under NCAA rules, and any judicial process related to the subject matter of the Consent Decree.\\\" See Am.Compl., Exhibit A. The plaintiffs claim that these are the NCAA rights to which they were also entitled as third party beneficiaries and involved persons.\\nIn connection with Penn State's waiver of the NCAA Rights, Penii'State agreed to and executed the Consent Decree that included the following statement to which the plaintiffs refer to as the \\\"Actionable Statement:\\\" \\\"[s]ome coaches, administrators and football program staff members ignored the red flags of Sandusky's behaviors and no one warned the public about him.'' Id. \\u00b6 169. The plaintiffs interpret the Actionable Statement to assert that \\\"some coaches\\\" were eomplicit in child sexual abuse by ignoring the \\\"red flags\\\" of child abuse, representing a factual conclusion based on the findings of the Freeh Report. Id. \\u00b6 170.\\nThe plaintiffs note that the Consent Decree does not state that the Actionable Statement was an \\\"opinion\\\" of Penn State. Id. \\u00b6 171. Instead, they characterize it as a seemingly factual and truthful statement offered to the public based on language in the introductory paragraph, which states: \\\"the findings of the Criminal Jury and the Freeh Report establish a factual basis from which the NCAA concludes that P\\u00e9nn State breached the standards . Id. \\u00b6 172-73. Nevertheless, the plaintiffs insist that Penn State knew that the Actionable Statement was based on the unreliable and unsubstantiated conclusions made in the Freeh Report, which Penn State knew was unreliable. Id. \\u00b6 174.\\nD. The Effect of the Scandal, the NCAA Sanctions, and the Coaching Change on Jay Paterno's Employment\\nJay Paterno was on Penn State's football coaching staff for seventeen seasons, twelve as Penn State's 'quarterbacks coach and five as its tight ends coach and recruiting coordinator. Id. at \\u00b6 26-27. Be fore coaching at Penn State, Mr. Paterno served as a graduate assistant at the University of Virginia from 1991 to 1992, wide receivers and tight ends coach at the University of Connecticut in 1993, and as the quarterbacks coach at James Madison University in 1994. Id. at \\u00b6 26-27.\\nMr. Paterno contends that before the execution of the Consent Decree, he was a top candidate for open head coaching positions at other comparable institutions. Id. at \\u00b6 272. Mr. Paterno had been approached during his time at Penn State by other universities and search firms exploring his potential interest in head coaching vacancies. Id. at \\u00b6 273.\\nAfter his termination by Penn State, however, those opportunities seemed to vanish. Being well-qualified, Mr. Paterno sought other employment either as a head football coach or a media commentator. Id. at \\u00b6 275-76. He further attempted to secure an assistant coaching position through his professional relationships, all to no avail. Id. at \\u00b6274. Mr. Paterno was not granted an interview at any of the several football programs to which he applied, and the coaching positions were given to candidates with less coaching experience. Id. at \\u00b6 277-80.\\nMr. Paterno also inquired about the head coaching position at another Division I school in the mid-Atlantic region, but that university's administration allegedly considered the coaches from Penn State to be \\\"too toxic,\\\" given the findings of the Consent Decree. Id. at \\u00b6 281. As a result, that program did not interview any candidates from Penn State. Id. The amended complaint also alleges that because of his qualifications and experience, Mr. Paterno would have received job offers from these programs had it not been for the disparaging accusations leveled against him in the Consent Decree. Id. at \\u00b6 282.\\nMr. Paterno also allegedly engaged in discussions with various media companies, including ESPN, CBS Sports, and Fox Sports, about serving as a college football commentator. Id/ at \\u00b6 283. Mr. Paterno had prior; dealings with officials at each network, and they were aware of his experience as. a columnist for StateCollege.com for-nearly three years. Id. at \\u00b6 284, Before the execution of the Consent Decree, ESPN advised Mr. Paterno that it was interested in his services and suggested .that it wanted to have him involved in a Spring 2012 telecast and a couple of in-studio college football shows. Id. at \\u00b6 285. These discussions were later discontinued. Id. at \\u00b6 286.\\nThe amended complaint alleges that officials at ESPN were uneasy about the San-dusky scandal and the,Consent Decree's unsupported finding that Mr. Paterno and other coaches had ignored \\\"the red flags of Sandusky's behaviors\\\",and failed to report Sandusky's crimes. Id. at \\u00b6287. Further discussions with ESPN about the possibility of Mr. Paterno being a commentator during lower profile college football games for the 2013 season were fruitless. Id. at \\u00b6 288-89.\\nDuring the Spring of 2013, Mr. Paterno had discussions with representatives of CBS Sports and Fox Sports which were also fruitless. Id. at \\u00b6290. Mr. Paterno's hiring was allegedly considered too controversial, because the networks would have had no choice but to have Mr. Paterno publicly address past events at Penn State and developments arising from the San-dusky Scandal. Id. at \\u00b6 291. Mr. Paterno is not currently employed other than as a freelance sports columnist, consultant, and author. Id. at \\u00b6- 292.\\nE. The Effect of. the Scandal, the NCAA Sanctions,. and the Coaching Change on William Kenney's Employment\\nWilliam Kenney had served as a Division I collegiate football coach for twenty-seven years. He was well-respected within the profession and was responsible for training and developing many college football players who later played in the National Football League (\\\"NFL\\\"). See Am. Compl. \\u00b6259. Prior to coaching for Penn State, Mr. Kenney served as an'offensive backfield coach at Norwich University in 1982, at Dennis-Yarmouth Regional High School from 1988 to 1984, and at Lincoln High School in 1985. He then returned to the college level where, from 1986 to 1988, he served as \\u00e1 graduate assistant at the University of Nebraska. Mr. Kenney left each of his coaching positions in good standing and with a strong reputation as a successful football coach. In 1988, Mr. Kenney moved to Penn State, where he was first a graduate assistant football coach and then a year later became a full-time coach. Mr. Kenney worked the next twenty-three years with Penn State, serving in a variety of coaching positions including offensive line coach, recruiting coordinator, and offensive tackles/tight ends coach.\\nAfter his termination by Penn State, Mr. Kenney made a determined effort to secure other employment as a football coach. Id. at \\u00b6 260.. He applied for open coaching positions with several Division I college football programs and in the NFL. Id. at. \\u00b6 261-262. Mr. Kenney contends he was exceptionally well-qualified for these positions and would have possibly received job offers from these programs had it not been for the Sandusky scandal. Id. at \\u00b6 267. Mr. Kenney received a few interviews, but was allegedly questioned about the NCAA's unsupported finding that he and other coaches had ignored \\\"the red flags of San-dusky's behaviors\\\" at Penn State, rather than on his credentials as a football coach. Id. at \\u00b6 263. Despite interviews or discussions with these potential employers, Mr. Kenney was not offered' a position. Mr. Kenney alleges that in most instances, the positions he applied' for were given to less experienced and less qualified candidates. Id. at \\u00b6 264.\\nDuring the course of his pursuit for new employment, Mr. Kenney allegedly learned that other college teams and NFL programs did not want to deal with the potential recruiting issues and the adverse public reaction that would likely follow any decision to hire him. Id. at \\u00b6 265, In fact, some head coaches were allegedly instructed by their colleges to forgo interviewing or hiring any former Penn State coaches. Id. at \\u00b6 266.\\nAfter over a year, Mr. Kenney secured employment as an offensive line coach at Western Michigan University. Id. \\u00b6268. He earns significantly less in salary than he did at Penn State and less than he would have earned had he been hired by one of the top Division I programs or NFL teams. Id. \\u00b6 269. The amended complaint alleges that Mr. Kenney's professional career suffered an extraordinary set-back and his future opportunities and earning potential have been harmed by Penn State's conduct. Id. \\u00b6 270.\\nII. LEGAL STANDARD\\nA motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted examines the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Following the Supreme Court decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), pleadings standards in federal actions have shifted from simple notice pleading- to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss under Fed. R. Civ. P.12(b)(6). Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir.2009); see also Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008).\\nTherefore, when presented with a motion to dismiss for failure to state a claim,district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The court must accept all of the complaint's well-pleaded facts as true but may disregard legal conclusions. Iqbal, 556 U.S; at 679,129 S.Ct. 1937. Second, a district court must determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a \\\"plausible claim for relief.\\\" Id. In other words, a complaint must do more than allege the plaintiffs entitlement to relief. A complaint has to \\\"show\\\" such an entitlement with its facts. Id.; see also Phillips, 515 F.3d at 234-235. \\\"Where the well-pleaded facts do not permit' the court to infer more than the mere possibility of misconduct, the complaint has al-lejged \\u2014 but it has not 'show[n]' \\u2014 'that the pleader is entitled to relief.'\\\" Iqbal, 556 U.S. at 679,129 S.Ct. 1937.\\nUnder Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a \\\"short and plain statement of the claim showing that the pleader is entitled to relief.\\\" As the Court held in Twombly, the pleading standard Rule 8 announces does not require \\\"detailed factual 'allegations,\\\" but it demands more than an. unadorned, the-defendant-unlawfully-harmed-me accusation. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). A pleading that offers \\\"labels and conclusions\\\" or \\\"a formulaic recitation of the elements of a cause of action will not do.\\\" Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Nor does a complaint suffice if it tenders ' \\\"naked assertion[s]\\\" devoid of \\\"furth\\u00e9r factual enhancement.\\\" Id. at 557, 127 S.Ct. 1955.\\nIII. DISCUSSION\\nA. Plaintiffs' Section 1983 Civil Rights Claim\\nMr. Paterno and Mr. Kenney claim that Penn State's actions caused irreparable damage to their personal and professional reputations. They assert a civil rights claim against Penn State under 42 U.S.C. \\u00a7 1983, for violations of the 5th and \\u00cd4th Amendments to the \\u00dcnited States Constitution, as they contend they were deprived of their liberty interests, and reputations without due process of law. They further claim that Penn. State injured and maligned them when it executed the Consent Decree in violation of their procedural due process rights. ,.\\nThe timeline of events is very important. In the fall of 2011, Mr. Sandusky's criminal conduct was discovered, leading to the filing of criminal charges against him and three Penn State officials. A Special Investigations Task Force was formed by the Board of Trustees' to investigate how this criminal conduct had been able to continue at Penn State and how it was possible that personnel had failed to report it to the authorities. Shortly thereafter, the Board voted to relieve Head Coach Joe Paterno of his coaching responsibilities. In January 2012, Penn State announced the hiring of William J. O'Brien to replace Mr, Paterno as Head Coach. Thereafter, Coach O'Brien released the majority of the \\u00e1ssistant football coaches, including the plaintiffs. By February 2012, the newly formed football coaching staff was complete:\\nA review of these events establishes that the plaintiffs were terminated as part of a new regime for Penn State football. The plaintiffs themselves understand That this process is typical with the hiring of a new head football coach: \\\"[t]o be certain, Plaintiffs do not complain that O'Brien released them from their coaching responsibilities and do not deny that O'Brien had the right to release them from such responsibilities.\\\" See -Am. Compl. \\u00b665. Thus, the termination of the plaintiffs was a- foreseeable result of - the hiring of a new head coach.\\nThe plaintiffs were no longer employees \\u00f3f Penn State at the time the Freeh Report and the Consent Decree with its Actionable Statement were published. Rather, the Freeh Report was completed and the Consent Decree signed long after Paterno and Kenney were fired. Although their terminations occurred in the midst of a scandal, they were not a byproduct of the Freeh Report or the Consent Decree. Rather, Mr. Paterno' and Mr. Kenney were let go as part of a series of coaching staff decisions by new Head Coach William O'Brien. These coaching staff personnel changes are normal, typical, and accepted in the profession whenever a new head coach assumes control of a team. These reasonable and \\u00e9xpected personnel decisions- did not rise to the level of the deprivation of the plaintiffs' constitutional rights without due process of law by a state actor. '\\nPlaintiffs' allegation that they had a \\\"property interest\\\" in their continued employment is not supported by the facts or by the law. Pennsylvania law presumes that all employment is at-will unless the employee is able to prove otherwise by showing with clarity and specificity that the parties contracted for a definite period. Permenter v. Crown Cork & Seal Co., Inc., 38 F.Supp.2d 372, 377 (E.D.Pa.1999) (emphasis added). Here, there are no allegations that the employment of the plaintiffs was anything other than at-will. There was no special contract requiring that they could only be terminated for caus\\u00e9. In fact, the plaintiffs do not dispute that every head football coach has the discretionary authority to determine his coaching staff, and could release an assistant coach from his coaching duties for no reason. See Am. Compl. \\u00b6 65. I find that both of the plaintiffs were at-will employees. An at-will employee has no entitlement to a particular type of notice or opportunity to be heard. See Dobson v. Northumberland Cnty., 151 Fed.Appx. 166, 168-69 (3d Cir.2005) (public employee with no protected property interest in his job has no substantive or procedural due process claims). Accordingly, I will grant the. defendant's,motion to dismiss as to Count I.\\nIn the alternative, even if it could be said that the plaintiffs' constitutional rights were involved, their Section 1983 claim would still fail. Under 42 U.S.C. \\u00a7 1983, a private party may recover in an action against any person acting under the color df state law who deprives the party of his constitutional' rights. Section 1983 provides in pertinent part:\\nEvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia subjects, or causes to be subjected, any citizen of the United States or other person... to the deprivation of any rights, privileges or immunities secured by the Constitution and law, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for . redress.\\n42 U.S.C. \\u00a7 1983.;\\nSection 1983 does not by itself confer substantive rights, but-instead provides a remedy for redress when a constitutionally prptected right has been violated. Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). Therefore, in order to succeed on a claim under 42 U.S.C. \\u00a7 1983, a plaintiff must demonstrate: (1) the violation > of a right secured by the Constitution, and (2) that the constitutional deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40. (1988).\\nHere, there is no dispute that Penn State is a state actor. The defendant does dispute, however, whether a constitutional right was involved or violated during the plaintiffs' termination. I agree with the defendant that the only cognizable constitutional interest that the plaintiffs pleaded properly is an alleged interest in their reputation. An individual has a protectable interest in reputation. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). 'Where a person's good name, reputation, honor, or .integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.\\\" Id. at 437, 91 S.Ct. 507. Courts have clarified, however, that \\\"reputation alone is not an interest protected by the Due Process Clause.\\\" Versarge v. Township of Clinton, New Jersey, 984 F.2d 1359, 1371 (3d Cir.1993) (citing Paul v. Davis, 424 U.S. 693, 701-712, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). The Court announced that defamation is actionable under 42 U.S.C. \\u00a7 1983 only if it occurs in the course of or is accompanied by a change or extinguishment of a right or status guaranteed by state law or the Constitution. Paul, 424 U.S. at 701-12, 96 S.Ct. 1155.\\nAccordingly, to prevail on a claim for deprivation of a liberty interest in one's reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest. Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir.2006). \\\"In the public employment context, the stigma-plus test has been applied to mean that when an employer creates and disseminates a false and defamatory impression about the employee in connection with his termination, it deprives the employee of a protected liberty interest.\\\" Id. (citing Codd v. Velger, 429 U.S. 624, 628, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977)) (emphasis, added). \\\"The creation and dissemination of a false and defamatory impression is the 'stigma,' and the termination is the 'plus.'\\\" Hill, 455 F.3d at 236. In order to satisfy the stigma prong of the test, the plaintiff must allege that the stigmatizing statements \\\"(1) were made publicly, and (2) were false.\\\" Id.\\nI am not convinced that there is any evidence that Penn State made stigmatizing statements specifically about the plaintiffs or any other statements about them that were sufficient to satisfy the stigma prong of the \\\"stigma-plus\\\" test. The \\\"Actionable Statement\\\" of the Consent Decree states, \\\"[sjome coaches, administrators and football program staff members ignored the red flags of San-dusky's behavior and no one warned the public about him.\\\" See Am.Compl., Exhibit A at 3 (emphasis added). The plaintiffs base much of this action on the Consent Decree's use of the term \\\"some coaches.\\\" They argue that because of the limited number of football coaches involved in the program at the time, it would be easily determined that the plaintiffs were members of that group and thus, be tainted as complicit in the child sexual abuse scandal. In fact, the amended complaint makes the following huge leap from actual language of the Actionable Statement to the plaintiffs' own interpretation:\\nThe effect of the Actionable Statement was that, following the lengthy investigation by the Freeh Firm, both Penn State and the NCAA (as well as the Freeh Firm) had come to the conclusion that Plaintiffs, as coaches with the Penn State football program, were involved in child sexual abuse conduct and therefore, it is. this Actionable State ment that has caused Plaintiffs their injury.\\nSee Am.Compl. \\u00b6 176 (emphasis added). Thus, the plaintiffs insist, because of this statement, they were substantially certain to be less attractive job candidates. Id. \\u00b6 180.1 disagree.\\nThe difference between what the Actionable Statement actually says and the interpretation the plaintiffs urge the court to accept is more than' unreasonable. The force of the term \\\"some coaches\\\" here is lessened because the Consent Decree specifically names other individuals at Penn State who were accused in the Freeh Report of wrongdoing. For example, the Consent Decree states,\\n\\\"University President Graham B, Spa-nier, Senior Vice President \\u2014 Finance and Business Gary C. Shultz, Athletic Director Timothy M. Curley, and Head Football Coach Joseph V. Paterno failed to protect against a child sexual predator harming children for over a decade. These men conc\\u00e9aled Sandusky's activities from the Board of ='Trustees, the University community and authorities...\\\"\\nId. at 4 (emphasis added). The Consent Decree also states,\\n\\\"By not promptly and fully advising the Board of Trustees about the 1998 and 2001 child sexual abuse allegations against Sandusky and the subsequent Grand Jury investigation of him, Spanier failed in his duties as President.\\\"\\nId. (emphasis added). Later, the Consent Decree states,\\n\\\"[The Freeh Report] found that it was more reasonable to conclude that, in order to avoid the consequences of bad publicity, the most powerful leaders at file University \\u2014 Spanier, Schultz, Pa-terno, and. Curley \\u2014 repeatedly concealed critical facts relating to San-dusky's child abuse from the authorities, the .University's Board of Trustees, the Penn State Community, and the, public at large.\\\" .\\nId. (emphasis added); Finally, the Consent Decree states',\\u2022\\n\\\"Spanier, Schultz, Paterno, and Curley allowed Sandusky to retire as a valued member of the University's football legacy, with 'ways to continue to work with young people through Penn State,' essentially granting him license to bring boys to campus facilities for 'grooming' as targets for his assaults.'\\\"''\\nId. (emphasis added). The Freeh Report and subsequent Consent Decree went to great \\\"lengths to specifically name four individuals who were accused of wrongdoing. It would be-reasonable, then, to expect that the Consent Decree would also specifically name the plaintiffs if Penn State, as a state actor, determined that they were also involved in this scandal.\\nNevertheless, even if I were convinced that Penn State had publically made false and stigmatizing statements against the plaintiffs sufficient to satisfy the stigma prong of the stigma-plus test, their claim would still fail because they also cannot satisfy the plus prong. Over the years, the Supreme Court has discussed, without, specifically deciding, what was required to satisfy the plus prong of the stigma-plus test. In Paul v. Davis, the Court stated thsit the \\\"plus\\\" had to be an alteration or extinguishment of \\\"a right or status previously recognized by state law.\\\" 424 U.S. at 711,' 96 S.Ct. 1155. In Board of Regents v. Roth, the Court suggested that under this standard, a person's doss of employment to which he did not hold a state law-created property interest is a sufficient \\\"plus.\\\" 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In Owen v. Independence, the' Eighth Girc\\u00fcit had held that the police chief petitioner \\\"possessed no property interest in continued employment,\\\" but that allegedly false accusations that the city made incident to his discharge \\\"had blackened petitioner's name and reputation, thus depriving him of liberty without due process of law.\\\" 445 U.S. 622, 631, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Giving Roth and Paul, the Supreme Court held that it had \\\"no doubt that the Court of Appeals\\\" was correct in this conclusion. Id. at 633, 100 S.Ct. 1398 n. 13. Similarly, in Codd v. Velger, the Court stated that \\\"where a non-tenured employee has been stigmatized in, the course of a decision , to terminate his employment,\\\" he is entitled to a name-clearing hearing. 429 U.S. at 627, 97 S.Ct. 882.\\nThe Third Circuit Court of Appeals has also discussed the requirements necessary to establish the plus prong of the stigma-plus test. See McKnight v. SEPTA, 583 F.2d 1229, 1235-1242 (3d Cir.1978) (holding that a complaint stated a \\\"stigma-plus\\\" due process c|aim where the plaintiff was d\\u00e9famed in the course of being discharged, though it was not clear under state law whether he had a property interest in continued employment). In Hill, however, the court definitively decided,\\nWe therefore conclude today that a public employee who is defamed in the course of being terminated or constructively discharged satisfies the \\\"stigma-plus\\\" test even if, as a matter of state law, he-lacks a property interest in- the job he lost.\\nHill, 455 F,3d at 238.\\nHere, whether or not'the plaintiffs held a property interest in continued employment under .state law, there was no deprivation following or connected to the purported stigmatizing statements of the defendant. Because the plaintiffs had already been terminated months before those statements, there can be no connection between the statements and the termination. In all of the cases discussing the stigma-plus test, a basic fact pattern exists. An employer creates and/or disseminates a false and defamatory impression about the plaintiff in connection with the plaintiff's termination. The employers' actions have come first and the employees' terminations have followed either immediately or shortly thereafter. Here, the plaintiffs were terminated during a change' in the regime of a university's football program, and not in connection with or subsequent to any alleged stigmatizing statements by. the defendant. The plaintiffs' reputations may have been negatively impacted by statements made by the defendant months after their terminations. Reputation alone, however, apart from some more tangible interests such as employment, does not implicate any \\\"liberty\\\", or \\\"property\\\" interests sufficient to invoke the procedural protection of the Due Process Clause. Paul, 424 U.S. at 701, 96 S.Ct. 11551 Thus, I find that the plaintiffs have failed to state a claim for the deprivation of their liberty interest in their reputations without the process due under the U.S. Constitution.\\nB. Civil Conspiracy\\nThe- amended complaint alleges that Penn State, along with other alleged con spirators,- acted intentionally, to abrogate and deny the plaintiffs their liberty interests and did so .with knowledge, intent, and malice toward the plaintiffs by executing the Consent Decree and issuing the Actionable Statement. See Am. Compl. \\u00b6175, 177. It further contends that Mr. Emmert, an alleged co-conspirator but not a state actor, magnified the negative impact of the Actionable Statement during his press conference on July 28, 2012, when he indicated that the NCAA may yet \\\"impose sanctions as needed on individuals involved in this case.\\\" Id. \\u00b6 181. Mr. Em-mert stated, '\\nWell again, we expressly have, in these sanctions and findings, withheld judgment on individuals, and will continue to do so until all of the criminal investigations have concluded, and until then we won't have any comment on individuals.\\nId. \\u00b6210. The plaintiffs characterize Mr. Emmert's statement as the result of a collaboratively designed effort by Penn State and the NCAA to have a unified public message. Id. \\u00b6 191. As further proof, the plaintiffs cite the following statement of Donald Remy, the NCAA's Chief Legal Officer, made to Gene Marsh, Penn State's negotiator with the NCAA:\\nthe statements made by President Em-mert were designed to assist Penn State with the. story it was publicly communicating' at the time.\\nId. \\u00b6 194;\\nIn Count III, the amended complaint alleges that \\\"there was an understanding and/or agreement between Penn State and the NCAA that Penn State would bypass the due process procedures which Plaintiffs were entitled to.\\\" See Am. Compl. \\u00b6 333. It also.contends that,\\nthe Conspirators' concerted actions were unlawful or taken for an unlawful purpose in order to deprive Plaintiffs of their procedural and -due process rights, and, by false accusation that Plaintiffs enabled and caused child sexual abuse to occur and remain unreported, were malicious and intended to injure, or were at least in reckless disregard of substantially certain injury to Plaintiffs' property interest in their good name, reputation, honor and integrity, as well as Plaintiffs' NCAA Rights and Penn State Rights.\\nId. at \\u00b6 336. Because the plaintiffs claim that the purpose .of the alleged conspiracy was to deprive them of their procedural and due process rights, I will construe Count III as a claim for conspiracy under Section 1983, rather than a state law claim for civil conspiracy.\\n\\\"In order to prevail on a conspiracy claim under \\u00a7 1983, a plaintiff must prove that persons acting under color of state law conspired to deprive him of a federal protected right.\\\" Ashton v. City of Uniontown, 459 Fed.Appx. 185, 190 (3d Cir.2012) (quoting Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir.1999)); see also Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 700 (3d Cir.1993) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)) (In order to demonstrate a Section 1983 conspiracy, a plaintiff must show that two or more conspirators reached an agreement to deprive him or her of a constitutional right under color of state law).\\nHere, because I have concluded that the object of the conspiracy claim must be dismissed, the alleged conspiracy claim itself must be dismissed. The amended complaint does not establish a claim for the deprivation of a liberty interest in reputation. Thus, one element of a conspiracy cause of action has not been satisfied, i.e., the deprivation- of a federal protected right. See Ashton, 459 Fed.Appx, at 190-191. I will grant the motion to > dismiss Count III.\\nC. Remaining State Law Claims\\nThe plaintiffs also have brought several state law claims against Penn State, including intentional interference with prospective contractual relations, a violation of Pennsylvania's Wage Payment and Collection Law, and breach of contract. Having dismissed the plaintiffs' federal claims, I decline to exercise supplemental jurisdiction over these remaining state law claims. See 28 U.S.C. \\u00a7 1367(c)(3) (stating that a federal district court may decline to exercise supplemental jurisdiction over state law claims when the district court has dismissed all claims over which it has original jurisdiction).- Accordingly, I will dismiss those claims-without prejudice.\\nAn appropriate Order follows.\\n. The facts are gleaned from the amended complaint and the extrinsic documents upon which it is based. See GSC Partners, CDO Fund v. Washington, 368 F.3d 228, 236 (3d Cir.2004). For the purposes of this motion, they are presented in the light most favorable to the plaintiffs, as the non-moving parties, and are accepted as true with all reasonable inferences drawn in their favor.\\n. The plaintiffs note that Mr. Emmert's letter failed to identify any specific provision in the NCAA's Constitution or Bylaws that granted the NCAA the authority to become involved in criminal matters regarding the Sandusky scandal that resided outside of the NCAA's basic purpose and mission. See Am.Compl. \\u00b6 55. They also note that the letter did not identify any NCAA ride that P\\u00e9hn State or any of the individuals being investigated, including the plaintiffs and other coaches and administrators, had allegedly violated as a result of the Sandusky scandal. See Am. Compl, \\u00b6 54.\\n. The plaintiffs do not dispute that every head football coach has the discretionary authority to determine his coaching staff, and could release an assistant coach -from his coaching duties. See Am, Compl. \\u00b6 65.\\n. In Roth, a non-tenured professor who had not been reappointed after his-initial one-year term ended claimed that he had been deprived of a right to continued employment without 'due process. The- Court denied his claim, finding that the professor, because he was not tenured, did not have a property right to continued employment. It noted, however, that had the University defamed, the professor in the course of .declining to rehire him, it would have deprived the professor of a liberty interest. Id. at 573, 92 S.Ct. 2701.\\n. The plaintiffs refer to \\\"Penn State, Emmert, the NCAA, other unknown NCAA employees, \\u00bflong with the Freeh Firm, and others\\\" as the \\\"Conspirators.\\\" See Am, Compl. \\u00b6 334.\\n. I note that \\\"[t]he standard for civil conspiracy under Pennsylvania law\\\" sets \\\"a higher bar than under Section 1983\\\" because in addition to proving the existence of an agreement, a plaintiff must also prove malice. Banks v. Gallagher, 686 F.Supp.2d 499, 528 (M.D.Pa.2009) (quoting Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 472 (1979)). The elements of a state law claim for civil conspiracy in Pennsylvania are: (1) an agreement between two or more persons; (2) to do an illegal, act or to do a. legal act by unlawful means; and (3) malice. Skipworth by Williams v. Lead Indus. Ass'n, Inc., 547 Pa. 224, 690 A.2d 169, 174 (1997). In order to proceed with a civil conspiracy action, however, the plaintiffs also must haye a valid cause of action for a particular act which the defendants conspired to commit. See McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 660 (Pa.Super.2000). Because that is'not the case here, the plaintiffs' claim for civil conspiracy also would fail if it were construed as a state law claim.\"}"
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+"{\"id\": \"43296\", \"name\": \"DRAKE BAKERIES INCORPORATED v. LOCAL 50, AMERICAN BAKERY & CONFECTIONERY WORKERS INTERNATIONAL, AFL-CIO, and Louis Genuth, Secy. Treas. etc\", \"name_abbreviation\": \"Drake Bakeries Inc. v. Local 50, American Bakery & Confectionery Workers International\", \"decision_date\": \"1960-05-04\", \"docket_number\": \"\", \"first_page\": \"148\", \"last_page\": \"149\", \"citations\": \"196 F. Supp. 148\", \"volume\": \"196\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the Southern District of New York\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:52:36.320581+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"DRAKE BAKERIES INCORPORATED v. LOCAL 50, AMERICAN BAKERY & CONFECTIONERY WORKERS INTERNATIONAL, AFL-CIO, and Louis Genuth, Secy. Treas. etc.\", \"head_matter\": \"DRAKE BAKERIES INCORPORATED v. LOCAL 50, AMERICAN BAKERY & CONFECTIONERY WORKERS INTERNATIONAL, AFL-CIO, and Louis Genuth, Secy. Treas. etc.\\nUnited States District Court S. D. New York.\\nMay 4, 1960.\\nWeil, Gotshal & Manges, New York City, for plaintiff (Robert Abelow, New York City, of counsel).\\nO\\u2019Dwyer & Bernstien, New York City, for defendant (Howard N. Meyer, New York City, of counsel).\", \"word_count\": \"563\", \"char_count\": \"3558\", \"text\": \"RYAN, Chief Judge.\\nOn January 4,1960, the plaintiff Drake Bakeries, Incorporated, instituted this suit to recover damages for an alleged breach of the \\\"no-strike provision\\\" of a collective bargaining agreement, pursuant to Section 301(a) of the Labor-Management Relations Act, 29 U.S.C.A. \\u00a7 185.\\nPrior to interposing an answer to the complaint, defendant moves this Court, under Section 3 of the United States Arbitration Act, 9 U.S.C.A. \\u00a7 3, for a stay of trial pending an arbitration proceeding in accordance with the terms of the collective bargaining agreement. That the Court has jurisdiction and power to enforce the arbitration clause of this contract is established now by Textile Workers v. Lincoln Mills of Alabama, 1957, 353 U.S. 448, 77 S.Ct. 912, 923, 1 L.Ed.2d 972.\\nThe basic grounds upon which plaintiff opposes this application may briefly be summarized as follows: (1) The arbitration provision of the agreement is at best permissive and not mandatory; (2) The action of the union in striking in the face of the no-strike clause (Art. YII of the agreement) acted as a waiver of its rights under the grievance and arbitration provisions; (3) By failure to proceed to arbitration the defendants expressly waived their arbitration rights.\\nWe find no merit in these contentions.\\n1. A reading of the provisions governing arbitration (Articles 5 and 6) shows that all complaints, disputes or grievances shall be submitted to arbitration. We find nothing permissive there and hold that this dispute is to be arbitrated.\\n2. Plaintiff next contends that, even if arbitration be mandatory, by violating one clause of the agreement defendants waived their rights under another clause (arbitration). We can find no logical basis for this argument, since if this premise were sustained, every violation of a collective bargaining agreement would act as a waiver of the violating party's right to arbitration, and this would destroy all arbitration agreements which are looked upon with great favor. Markel Electric Products, Inc., v. United Electrical, Radio & Machine Workers et .al., 2 Cir., 202 F.2d 435. Aside from the purely logical objection to plaintiff's contention, it appears that the better reasoned decisions allow arbitration after a violation of a no-strike provision. Signal-Stat Corp. v. Local 475, etc., 235 F.2d 298, \\u2022certiorari denied 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d 1428; Lewittes & Sons v. United Furniture Workers, 95 F.Supp. 851.\\n3. We come then to plaintiff's final contention that the union's failure to proceed to arbitration constitutes a default on the union's part and thus the \\u00a1union has waived its right under the arbitration provision. Since plaintiff was and is the aggrieved party and since there is no evidence before the Court that plaintiff ever attempted to proceed to arbitration by a written demand as required by Article V, Section 6 of the agreement, defendants' failure to initiate arbitration does not amount to a waiver under the circumstances,\\nWe conclude that the arbitration agreement must be enforced and direct that an order be settled staying further proceedings in this suit, gettle order on notice<\"}"
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+"{\"id\": \"4345340\", \"name\": \"Kelly A. MOORES, Plaintiff, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant\", \"name_abbreviation\": \"Moores v. Colvin\", \"decision_date\": \"2016-03-23\", \"docket_number\": \"No. 2:14-cv-2243-EFB\", \"first_page\": \"989\", \"last_page\": \"999\", \"citations\": \"173 F. Supp. 3d 989\", \"volume\": \"173\", \"reporter\": \"Federal Supplement 3d\", \"court\": \"United States District Court for the Eastern District of California\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:10:31.339310+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kelly A. MOORES, Plaintiff, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant.\", \"head_matter\": \"Kelly A. MOORES, Plaintiff, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant.\\nNo. 2:14-cv-2243-EFB\\nUnited States District Court, E.D. California.\\nSigned March 23, 2016\\nBarbara Arlette Arnold, Law Office of Barbara Arnold, Oakland, CA, for Plaintiff.\\nBobbie J. Montoya, SS, United States Attorney\\u2019s Office, Sacramento, CA, Caro lyn B, Chen, Govt, Social Security Administration OGC, Region IX, San Francisco, CA, for Defendant.\", \"word_count\": \"4315\", \"char_count\": \"27634\", \"text\": \"ORDER\\nEDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE\\nPlaintiff seeks judicial review of a final decision of the Commissioner of Social Security (\\\"Commissioner\\\") denying her application for a period of disability and Disability Insurance Benefits (\\\"DIB\\\") under Title II of the Social Security Act. The parties' cross-motions for summary judgment are pending. For the reasons discussed below, plaintiffs motion is granted, the Commissioner's motion is denied, and the matter is remanded for further proceedings,\\nI. BACKGROUND\\nPlaintiff filed an application for a period of disability and DIB, alleging that she had been disabled since September 17, 2009. Administrative Record . (\\\"AR\\\") 154-160, Plaintiffs application was denied initially and upon reconsideration. Id. at 104-106, 108-109. \\u00d3n December 4, 2012, a hearing was held before administrative law judge (\\\"ALJ\\\") Amita Tracy. Id. at 43-93. Plaintiff was represented by counsel at the hearing, at which she, a third-party witness, and a vocational expert (\\\"VE\\\") testified. Id.\\nOn December 28, 2012, the ALJ issued a decision finding that plaintiff was not disabled under section 216(i) and 223(d) of the Act. Id, at 25-37. The ALJ made the following specific findings:\\n1.' The claimant meets the insured status requirements of the Social Security Act through June 30, 2014.\\n2. The claimant has not engaged in substantial gainful activity since September 17, 2009, the alleged onset date (20 CFR 404.1571 et seq.). $\\n3. The claimant has the following severe impairments: Lyme disease and bipolar disorder (20 CFR 404.1520(c)).\\n4. The claimant does not have an impairment or combination of impairments ' that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 ' (20 CFR 404.1520(d)), 404.1525 and 404.1526. #\\n5. After careful consideration of the entire record, the undersigned finds that .the claimant has the residual functional capacity to perform light work' as defined in 20 CFR 404.1567(b) except she is limited to performing simple, routine, and repetitive tasks. The claimant should not work at production rate pace, but she is able to perform-goal-oriented tasks. She is limited to no interaction with the public and only occasional interaction with coworkers.. She is to perform work involving things and objects rather than people.\\n6. The claimant is unable to perform any past relevant work (20, CFR 404.1565).\\n7. The claimant was born on July 6,1969 and was 40 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).\\n8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).\\n9. Transferability of job skills is not material- to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is \\\"not disabled,\\\" whether or not the claimant- has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).\\n10. Considering the claimant's age, education, work experience, and residual \\u2022functional capacity, there are jobs that exist in .significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)). \\u2756 # %\\n11. The claimant has not been under a disability, as defined in the Social Security Act, from September 17, 2009, through the date of this decision (20 CFR 404.1520(g)).\\nId. at 27-36.\\nPlaintiffs- request for Appeals Council review was denied on August 4, 2014, leaving the ALJ's decision as the final decision of the Commissioner. Id. at 1-7.\\nII. LEGAL STANDARDS\\nThe Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper -legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir.2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999).\\nThe findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir.1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94. F.3d 520, 521, (9th Cir.1996), \\\"'It means such evidence as a reasonable mind might accept as adequate to support, a conclusion.'\\\" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).\\n\\\"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.\\\" Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.2001) (citations omitted). \\\"Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.\\\" Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.2002).\\nIII. ANALYSIS\\nPlaintiff argues that the ALJ erred in (1) failing to adequately address the medical opinion evidence of record, and (2) rejecting her testimony without legally sufficient reasons. EOF No. 12-1. Medical opinions were provided by a treating physician and a treating nurse practitioner. Consultative opinions were obtained from an examining psychologist, and from a non-examining physician and a non-examining psychologist\\nPlaintiff first argues that the ALJ failed to properly weigh the medieal opinion evidence of record. Id. at 12-1 at 22-30. The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Lester, 81 F.3d at 834. Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir.1996). To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for \\\"clear and convincing\\\" reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining medical professional may be rejected for'\\\"specific and legitimate\\\" reasons that are supported by substantial evidence. Id. at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (e.g., supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989)). However, \\\"[w]hen an examining physician relies on the same clinical findings as a treating physician, but differs only in his or her conclusions, the conclusions of the examining physician are not 'substantial evidence.'\\\" Orn v. Astrue, 495 F.3d 625, 632 (9th Cir.2007).\\nOn August 26, 2011, nurse practitioner Rachelle A. Goering completed a Residual Functional Capacity Questionnaire. AR 461-469. She reported that she had been treating plaintiff since March 2007 for Lyme disease and bipolar disorder. Id. at 461. Plaintiffs symptoms included nonre-storative sleep, chronic fatigue, morning stiffness, muscle weakness, irritable bowel syndrome, premenstrual ' syndrome, breathlessness, anxiety, panic attacks, depression, chronic fatigue syndrome, and pain in cervical spine and feet. Id. at 461-462. She opined that plaintiffs symptoms were severe enough to interfere with attention and concentration necessary to complete even simple tasks 40 percent of the time, and that she was incapable of performing even low stress jobs. Id. at 462. It was Ms. Goering's opinion that plaintiff could only walk one block without rest or severe pain; sit for six hours in an eight hour work day; and stand/walk for less than.2 hours in an 8-hour workday, but for only 10 to 15 minutes at one time. Id. at 463-464. She further opined that plaintiff could lift 10 pounds occasionally and 20 pounds rarely; would require unscheduled one hour breaks every 20 to 30 minutes; could rarely perform postural activities; and would be absent from-work three or more days a month. Id. at 464-465. It was also her opinion that plaintiff could only work about 2 hours per day and was unable to engage the public or coworkers due to being easily stimulated, mental fogginess, and high anxiety. Id. at 465.\\nPlaintiffs treating physician, Dr. Eleanor Hynote, agreed with Ms. Goering's opinion and subsequently. signed the Residual Functional Capacity Questionnaire Ms. Goering completed. Id.- at 530-534. Dr. Hynote also completed a Medical Source Statement for Neuroborreliosis/ Neurologically-Involved Lyme Disease, which is dated June 12, 2013, after the ALJ's decision. Id. at 456-552. In that statement, Dr. Hynote opined that plaintiff could walk two to three blocks without rest or severe pain, sit for 45 minutes at one time, stand for 10 minutes at one time, and sit and stand/walk, for less than 2 hours in an 8-hour workday. Id. at 549. It was also her opinion that plaintiff would need to shift positions at will, walk around for 15 minutes every hour, and would need to. take unscheduled breaks \\\"very.often\\\" for 2-3 hours. Id. at 550. Dr. Hynote further opined that plaintiff would need to keep her legs elevated when seated; could occasionally lift 20 pounds; rarely perform postural activities; and was limited in reaching, handling, and fingering. Id. at 551.\\nPlaintiff underwent a comprehensive psychiatric evaluation, which was conducted by Silvia Torrez, Psy. D. Id. at 448-454. Plaintiff reported that she was seeking disability .benefits due to Lyme disease and bipolar disorder, which she treated with homeopathic remedies and supplements. Id. at 448-449. Dr. Torrez diagnosed plaintiff with bipolar disorder not otherwise specified and alcohol abuse, in remission. Id.. at 453. She found that the likelihood of plaintiffs condition improving in the next 12-months was fair but that her attitude towards seeking employment was poor. Id. Dr. Torrez opined that plaintiff had a good ability to understand and remember very short and simple instructions and to sustain an ordinary routine without special supervision. Id. at 453-454. She further opined that plaintiff had a fair ability to understand and remember detailed instructions;, accept instructions from supervisors and respond appropriately; complete a normal workday and workweek without interruptions at a constant pace; interact with .coworkers; and deal with various changes in the work setting. Id. It was also her opinion that plaintiff had a fair likelihood of deteriorating in the work environment. Id. at 454.\\nThe record also contains a Mental Residual Functional Capacity Assessment completed by Dr. Winston Brown, a non-examining physician. Id. at 501-504. Dr. Brown opined that plaintiff was moderately limited in maintaining attention and concentration for extended periods, completing a normal workday and workweek without interruptions from psychologically based symptoms, responding appropriately to changes in the work setting, and setting realistic goals or making plans independently from others. Id. at 503. It was his opinion that plaintiff was able to perform work where interpersonal contact is routine but superficial and that she would require supervision for routine tasks. Dr. Brown's opinion was subsequently affirmed by non-examining psychologist Sheri L. Simon, Ph.D. Id. at 523.\\nNon-examining psychologist Tawnya Brode, Psy.D. also completed a Mental Residual Functional Capacity Assessment. Id. 527-529. She opined that plaintiff was moderately limited in interacting appropriately with the general public and in accept ing instructions and responding appropriately to criticism from supervisors. Id. at 528- It was Dr. Brode's opinion that plaintiff was able to understand and remember work locations and routines, maintain adequate attention and concentration, sustain a workday/workweek schedule, interact with others,in a superficial manner, adapt to changes, and respond to hazards. Id. at 529.\\nPlaintiff first argues that the ALJ failed to give legally sufficient reasons for rejecting the opinion provided by Dr. Hy-note and Ms. Goering. EOF No. 12-1 at 22-28. In assessing plaintiffs RFC, the ALJ gave-little weight to the opinion provided by Ms. Goering, and later affirmed by Dr. Hynote, while giving great weight to the opinions from the non-treating sources, Drs. Torrez, Brown, and Brode. Id. at 34. Dr, Hynote was plaintiffs treating physician and provided an opinion assessing plaintiffs physical limitations as well as mental limitations, while examining and non-examining physicians Drs. Torrez, Brown, and Brode only provided opinions concerning plaintiffs mental limitations. Accordingly, Dr. Hynote's opinion regarding plaintiffs physical limitations is uncon-tradicted and could not be rejected absent clear and convincing reasons.\\nThe ALJ provided the following explanation for why he rejected the opinion provided by Dr. Hynote and Goering:\\nMs. Goering's opinion is given little weight because the objective medical evidence does not support such severe functional limitations on the part of the claimant. In addition, the undersigned. accords little weight to Ms. Goerging's opinion because a nurse practitioner is not an \\\"acceptable medical source\\\" (20 CFR. 404.1513 416.913). \\\"Furthermore, the claimant's lack of. medical treatment- and- her overall activities of daily living are inconsistent with a complete inability to work.\\\"\\nAR34.\\nAs an initial matter, the ALJ fails to acknowledge that Dr. Hynote provided a treating-source opinion. The ALJ acknowledges that Dr. Hynote signed the Residual Functional Capacity Questionnaire completed by Ms. Goering, but ultimately-treats the opinion as only given by Ms. Goering. Id. at 33-34. The ALJ consistently refers to the opinion as that of Ms. Goering and disposes of it with reduced weight because MS. Goering is a nurse practitioner and not a medical doctor. Id. at 34. The effect is to ignore entirely Dr. Hynote's participation in providing a medical opinion as to the plaintiffs functional capacity. Yet the record contains two copies of the Residual Functional Capacity Questionnaire, one containing only Ms. Goering's signature, id. - at 461-465, and another copy that includes Dr. Hynote's signature, id. at 530-534.' This evidence establishes that Dr. Hynote reviewed the opinion initially provided by Ms. Goering and adopted it as his her own. Thus, the fact that Ms. Goering is not an acceptable medical source under the Commissioner's regulations, see 20 C.F.R. \\u00a7 404.1513 & 416.913, provides no basis for rejecting Dr. Hynote's opinion,\\nThe ALJ's other reasons for rejecting Dr. Hynote's uncontradicted opin ion are not clear and convincing. First, the ALJ rejected Dr. Hynote's opinion because \\\"the objective medical, evidence does not support such severe functional limitations on the part of the claimant.\\\" This concluso-ry statement, without any explanation, falls short of satisfying the clear and convincing standard. As explained by the Ninth .Circuit:\\nTo say that medical opinions are not supported by sufficient objective findings does not achieve the level of specificity our prior cases have required even when the objective factors are listed seriatim. The ALJ must do more than offer his own conclusions. He must set forth his own interpretation and explain why he, rather than the doctors, are correct.\\nRegennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir.1999). The ALJ provides no such- explanation for his conclusion that Dr. Hyote's opinion is not supported by objective medical evidence.\\nFurthermore, objective evidence appears to support Dr. Hynote's opinion. Dr. Hynote indicated that plaintiff's physical symptoms include nonrestorative sleep, chronic fatig\\u00fae, morning stiffness, muscle weakness, and pain in the cervical spine and feet. AR 530-531. The ALJ specifically found that plaintiffs severe impairments include Lyme disease, id. at 27, and \\\"[sjymptoms of Lyme disease include fatigue, chills, fever, headache, muscle pain and weakness, a stiff neck, speech problems, joint swelling, memory and concentration problems and vision problems.\\\" Pugliese v. Astrue, 2012 WL 4061355, at * 2 n. 9 (M.D.Penn. Sept. 14, 2012). The fact that plaintiff has tested positive for Lyme disease provides an objective basis for Dr. Hynote's opinion. See Morgan v. Colvin, 2013 WL 6074119 (Nov. 13, 2014) (con-eluding that positive blood test for Lyme disease provided an objective basis for physician's opinion that plaintiff was functionally limited due to aches and pains). Thus, the ALJ's conclusory statement that Dr. Hynote's opinion is unsupported by objective evidence is not supported by the record or any explanatory analysis and .is not a legitimate basis for rejecting Lis opinion.\\nLastly, in rejecting Dr. Hynote's opinion, the ALJ found that plaintiffs \\\"lack of medical treatment and her overall activities of daily living are inconsistent with a complete inability to work.\\\" AR 34. An ALJ may reject the opinion of a treating physician who prescribed conservative treatment, yet opines that a claimant suffers disabling conditions. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir.2001). But here, the record indicates that Dr. Hynote prescribed medication, to treat plaintiffs Lyme disease. Treatment notes from September 2010 indicate that plaintiff was doing well on antibiotics. AR 406. She reported that pain in her body and joints were clearing, and that she experienced less fogginess. Id. However, the following month plaintiff reported that her symptoms had returned and that she\\\" was having difficulty sleeping and experiencing issues with low energy and body pain. Id. Plaintiff attributed her reports of improvement during the previous visit to a manic episode. Id. Plaintiff was directed to continue taking Zithromax and was prescribed Mepron. Id. In November 2010, plaintiff reported that her energy was still low, but that' her joint and body, pain were \\\"under control.\\\" Id. at 407. She also stated that she had not started Mepron, as she had been denied Medi-Cal. Id. Treatment notes form December 2010 reflected that plaintiff was continuing to take her a-Zithromax, but stated that she could not afford Mepron. In May 2011, plaintiff reported that she did not fill her prescription for antibiotics because she was \\\"running out of money.\\\" Id. at 470.\\nThe record shows that Dr. Hynote treated plaintiffs Lyme disease with prescription medication and while plaintiff eventually stopped taking her prescribed medication, it was due to a lack of funds and not Dr. Hynote's decision to cease the treatment. Thus, the ALJ's conclusory statement that Dr. Hynote's opinion is inconsistent with plaintiffs \\\"lack of medical treatment\\\" does not provide a clear and convincing reason for rejecting her opinion.\\nFurthermore, it. is unclear precisely how plaintiffs reported activities are inconsistent with Dr. Hynote's opinion. In assessing plaintiffs credibility, the ALJ summarizes plaintiffs daily activities, AR 32-33, but the ALJ fails to specify which activities were inconsistent with the limitations assessed by Dr. Hynote. Cf Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir.2014) (finding that the ALJ erred by \\\"not elaborate[ing] on which daily activities conflicted with whichpart of Claimant's testimony.\\\") (emphasis in original). This is especially problematic given that plaintiffs reported activities are limited. As noted by the ALJ, plaintiff reported that she can care for her general hygiene, prepare simple meals such as soup or protein shakes, .go grocery shopping, attend church, pay bills, watch television, and drive to a health food store to pick up meals. Id. at 219-222, 449. The ability to perform these activities is not at odds with Dr. Hynote's opinion.\\nThe ALJ did observe, however, that a treatment note from December 2010 indicated that plaintiff \\\"goes to health food store for few hrs work-not on payroll.\\\" Id. at 473. One could logically conclude that maintaining the ability to work at a health food store for a few hours is inconsistent with the severe limitations assessed by Dr. Hynote. However, the treatment note provides no insight into the type of work plaintiff performed at the store, nor does indicate how frequently plaintiff was able to perform a few hours of work. Other evidence in the record, however, indicates that plaintiffs visits to the store were more social in nature and any work she performed was de minimis. Plaintiff testified that she previously worked at the health food store and that she had friends that continued to work there. Id. at 52-53, 219. Plaintiff also reported that her friends would prepare her meals and that she would go to the store to pick them up. Id. at 219. The manager of the health food store, Tina Kauffman, completed a Functional ' Report Adult-Third Party ' statement, id. at 270-275, which the ALJ found to be \\\"generally persuasive except in regards to the severity of [plaintiffs] impairments,\\\" id. at 31. She reported that plaintiff comes to the store 2-3 days a week, and during these visits she may work on the computer for 10 minutes. Id. at 270. Ms. Kauffman further stated that plaintiff might talk to customers from her chair but that she was unable to perform tasks that required her to be on her feet for more than five minutes. Id. at 270.\\nThus, the limited activity plaintiff performed at the health food store was not inconsistent with the limitations assessed by Dr. Hynote. Accordingly, none of the reasons articulated by the ALJ provided a basis for rejecting Dr. Hynote's opinion.\\nEqually problematic' in the rejection of Dr. Hynote's opinion is the lack of any explanation as to how the evidence of record demonstrates that plaintiff can perform light work with only non-exertional limitations. Light work involves lifting no more than 20 pounds at a time and frequently lifting and carrying objects weighing up to 10 pounds, with \\\"a good deal of walking or standing.\\\" 20 C.F.R. 404.1567(b). Here, all the medical opinions that were accorded great weight addressed only plaintiff's mental limitations. Dr. Hy-note's opinion is the sole assessment of plaintiffs physical limitations. The ALJ rejected Dr. Hynote's opinion, yet failed to cite to any specific evidence demonstrating that plaintiff could perform light work notwithstanding the opinion of Dr. Hynote. As noted above, plaintiffs daily activities were limited and do not demonstrate the ability perform \\\"a good deal of walking or standing.\\\" AR 219-222, 449.\\nAccordingly, this matter must be remanded for further consideration of plaintiffs physical impairments and how they impact her ability to work. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir.2015) (\\\"Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits.\\\").\\nIV. CONCLUSION\\nThe ALJ's failed to apply the properly legal standard and the decision was not supported by substantial evidence. Accordingly, it is hereby ORDERED that:\\n1. Plaintiffs request for oral argument on the cross-motions for summary judgment, ECF No. 20, is denied;\\n2. Plaintiffs motion for summary judgment is granted;\\n3. The Commissioner's cross-motion for summary judgment is denied;\\n4. The matter is remanded for further consideration consistent with this order; and\\n5. The Clerk is directed to enter judgment in plaintiffs favor.\\n. Plaintiff filed a request for the court to hold a hearing on the cross-motions for. summary judgment ECF No. 20. The court finds that oral argument would not be of material assistance to resolution of the pending motions, and therefore plaintiff's request for a hearing \\u2022 is denied,\\n. Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. \\u00a7 401 et seq. Supplemental Security Income (\\\"SSI\\\") is paid to disabled persons with low income. 42 U.S.C, \\u00a7 1382 et seq, Under both provisions, disability is defined, in part, as an \\\"inability to engage in any substantial gainful activity\\\" due to \\\"a medically determinable physical or mental impairment.\\\" 42 , U.S.C. \\u00a7 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. \\u00a7 423(d)(1)(a), 416,920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). The following summarizes the sequential evaluation:\\nStep one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.\\nStep two: Does the claimant have a \\\"severe\\\" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.\\nStep three: Does the Claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt, 404, Subpt, P, App.l? If so, the claimant is automatically determined disabled. If not, proceed to step four.\\nStep four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.\\nStep five: Does the claimant have the residual functional capacity to perform any \\u2022other work? If so, the claimant is not disabled. If not, the claimant is disabled.\\nLester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir.1995).\\nThe claimant bears the burden of proof in the first four steps of the sequential evaluation process, Yuckert, 482 U.S. at 146 n. 5, 107 S.Ct. 2287. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.\\n. The record contains a case analysis completed by Dr. Jerry Thomas. AR 447, Dr, Thomas opined that .plaintiff's impairments were non severe, finding that there was no medically determinable impairment noted in the medical evidence of record. Id. The court finds no basis for treating Dr. Thomas's statement as an opinion contradicting Dr. Hy-note's opinion, First, the ALJ makes no reference to Dr. Thomas's case analysis. Second, the ALJ implicitly rejected Dr. Thomas's opinion by specifically concluding that plaintiff's severe impairment's included Lyme disease and bipolar disorder.\\n. Plaintiff testified at the hearing that one of the medications she was prescribed cost more than $1,000 for one month's prescription. AR 77.\\n. The ALJ states that plaintiff stopped all prescription in December 2012 (AR 32); however, the record indicates that she stopped sometime in mid-2011. Id. at 470.\\n. Plaintiff's friends, who work at a health food store, help prepare meals for plaintiff. AR 219.\\n. As this matter must be reminded for further consideration of the medical evidence of record, the court declines to address plaintiff's additional arguments.\"}"
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+"{\"id\": \"5411492\", \"name\": \"Johnnie Leonard SCHWARZAUER, Petitioner, v. UNITED STATES of America, Respondent\", \"name_abbreviation\": \"Schwarzauer v. United States\", \"decision_date\": \"1969-01-10\", \"docket_number\": \"Civ. A. No. 5178-68\", \"first_page\": \"1012\", \"last_page\": \"1013\", \"citations\": \"298 F. Supp. 1012\", \"volume\": \"298\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the Southern District of Alabama\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:27:35.913706+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Johnnie Leonard SCHWARZAUER, Petitioner, v. UNITED STATES of America, Respondent.\", \"head_matter\": \"Johnnie Leonard SCHWARZAUER, Petitioner, v. UNITED STATES of America, Respondent.\\nCiv. A. No. 5178-68.\\nUnited States District Court S. D. Alabama, S. D.\\nJan. 10, 1969.\\nJohnnie Leonard Schwarzauer, pro se.\\nDon Conway, Asst. U. S. Atty., Mobile, Ala., for defendant.\", \"word_count\": \"659\", \"char_count\": \"3888\", \"text\": \"ORDER\\nPITTMAN, District Judge.\\nBy order of this court filed herein on September 23, 1968, the petitioner, Johnnie Leonard Schwarzauer, was granted leave to file and proceed in forma pauperis on his motion to vacate sentence. At the same time, this court ordered and directed that the respondent, United States of America, by its authorized representative, appear and show cause on or before October 23, 1968, why the motion as prayed for by the petitioner should not be granted. The United States Attorney for the Southern District of Alabama filed a return and answer on behalf of the respondent on October 25, 1968.\\nUpon consideration of the motion filed by petitioner and the return and answer filed on behalf of the respondent it appears that at the time of filing his motion petitioner was serving a sentence imposed by the United States District Court for the Southern District of Alabama, Judge Clarence Allgood presiding, on July 1, 1964, after a plea of guilty to a charge of second degree murder. Petitioner raises three issues:\\n(1) That he was illegally arrested without a warrant or probable cause,\\n(2) That his plea of guilty was not voluntary, but was coerced, and\\n(3) That the statute under which he pleaded guilty, Title 18 U.S.C. Section 1111 (Murder), is unconstitutional.\\nTaking these slightly out of order, the United States has submitted a transcript of the proceedings on July 1, 1964, at which time petitioner entered his plea of guilty to the charge of Murder in the Second Degree. From the transcript it is clear that the district judge took proper precautions before accepting petitioner's plea of guilty. Therefore, this court finds that the plea of guilty by petitioner was un-coerced and voluntary.\\nHaving found the plea of guilty to be voluntary, it is equally clear that petitioner can not now raise his first issue; i. e., that he was illegally arrested, since a plea of guilty waives all non-jurisdictional questions. Busby v. Holman, 356 F.2d 75 (5th Cir. 1966).\\nFinally, petitioner contends that the act under which he pled guilty, 18 U.S.C. \\u00a7 1111, is unconstitutional for the same reasons that 18 U.S.C. \\u00a7 1201 was held unconstitutional in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, (April 8, 1968). In fact only that part of \\u00a7 1201 which, in effect, provided that only the jury could impose the death sentence was struck down by the Supreme Court. It was held that such a provision discouraged one from exercising his constitutional right to a jury trial, since if an accused did request a jury trial under \\u00a7 1201 (Federal Kidnapping Act) he ran the risk of receiving the death penalty, whereas if he waived a jury trial or pled guilty, he could not receive such a sentence.\\nPetitioner contends that his situation is analogous to the Jackson case. But the pertinent part of 18 U.S.C. \\u00a7 1111(b) reads:\\n\\\" Whoever is guilty of murder in the first degree, shall suffer death unless the jury qualifies its verdict by adding thereto 'without capital punishment', in which event he shall be sentenced to imprisonment for life (Emphasis added.)\\nComparing this to the language of 18 U.S.C.A. \\u00a7 1201:\\n\\\" shall be punished (1) by death if the verdict of the jury shall so recommend (Emphasis added.)\\nit is clear that the language of the two statutes is not analogous. For whereas in \\u00a7 1201 only the jury can return a verdict of death, no such limitation exists in \\u00a7 1111. Under \\u00a7 1111 either judge or jury could do so.\\nTherefore, it is ordered, adjudged, and decreed that petitioner's motion to vacate sentence be and the same is hereby denied.\"}"
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+"{\"id\": \"552777\", \"name\": \"AMERICAN BRIDGE DIVISION, U. S. STEEL CORPORATION, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, and Harvey J. Carroll, Respondents\", \"name_abbreviation\": \"American Bridge Division v. Director, Office of Workers' Compensation Programs, United States Department of Labor\", \"decision_date\": \"1982-06-25\", \"docket_number\": \"No. 81-4247\", \"first_page\": \"81\", \"last_page\": \"85\", \"citations\": \"679 F.2d 81\", \"volume\": \"679\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the Fifth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T22:54:11.755319+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RUBIN, REAYLEY and TATE, Circuit Judges.\", \"parties\": \"AMERICAN BRIDGE DIVISION, U. S. STEEL CORPORATION, Petitioner, v. DIRECTOR, OFFICE OF WORKERS\\u2019 COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, and Harvey J. Carroll, Respondents.\", \"head_matter\": \"AMERICAN BRIDGE DIVISION, U. S. STEEL CORPORATION, Petitioner, v. DIRECTOR, OFFICE OF WORKERS\\u2019 COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, and Harvey J. Carroll, Respondents.\\nNo. 81-4247.\\nUnited States Court of Appeals, Fifth Circuit.\\nJune 25, 1982.\\nKyle Wheelus, Jr., Beaumont, Tex., for petitioner.\\nJanet R. Dunlop, U. S. Dept, of Labor, Joshua T. Gillelan, II, Washington, D. C., for respondents.\\nBefore RUBIN, REAYLEY and TATE, Circuit Judges.\", \"word_count\": \"2239\", \"char_count\": \"13682\", \"text\": \"TATE, Circuit Judge:\\nThis petition for review raises a narrow issue of agency procedure. The petitioner challenges an agency rule that requires a party to raise an issue before or at the initial hearing; in the absence of timely raising, the issue will not subsequently be considered. We find no impropriety in the rule or in its present application, and we therefore affirm.\\nBy its petition for review of the award of longshoremen's-harbor workers' benefits, the employer (\\\"American Bridge\\\") questions solely the denial of its motion for reconsideration of an award for total permanent disability. By this motion, American Bridge raised an issue that its liability for compensation should be limited under section 8(f); this statutory section provides for partial payment of benefits due from a \\\"special [second injury] fund\\\" under certain circumstances where a pre-accident partial disability contributes to the present compensable disability. The Benefits Review Board held that the raising of such issue was untimely, since not raised or litigated at the hearing of the claim before the Administrative Law Judge (\\\"the ALJ\\\").\\nBy its present petition for review, (1) American Bridge challenges the Board's procedural rule \\u2014 i.e., that issues not noticed before the hearing or (at least) raised during it are waived \\u2014 as inappropriate or unfair where a section 8(f) limitation of liability is concerned, and (2) it additionally contends that, at any rate, the Board should have remanded the issue to the ALJ in the interests of justice under the present circumstance^, where allegedly American Bridge was proced'urally misled by administrative employees or by prior administrative practice. Finding neither contention has merit, we affirm.\\nThe Rule\\nThe procedure for the determination of claims under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. \\u00a7 901 et seq. (the \\\"Act\\\") is set forth at 20 C.F.R. \\u00a7 702.101-.394. With regard to contested claims, initially there are informal procedures conducted by the deputy commissioner. \\u00a7 702.261-.316. If the dispute is not thereby resolved, and if any party requests a hearing, the deputy commissioner transfers the case for formal hearing to the Office of the Chief Administrative Law Judge, \\u00a7 702.316, .331, and the case is assigned for formal hearing before an AU, \\u00a7 702.332. In preparation of the transfer for formal hearing, each party is required to complete a pre-hearing statement form, \\u00a7 702.317, in which each party is required to state the issues he will present for resolution at the formal hearing. The formal hearing is based upon the issues as presented by the pre-hearing statement forms, \\u00a7 702.331, but if, during the course of the formal hearing, an issue not previously considered is presented by the evidence, the hearing may be expanded to include this new issue. \\u00a7 702.336.\\nIn accordance with this procedural scheme, the Board has held to be untimely an employer's post-hearing request for section 8(f) limitation of its liability, where the employer could have requested section 8(f) relief at the formal hearing, but failed to do so. The Board has ruled that the applicability of section 8(f), absent compelling circumstances, must be raised and litigated at the formal hearing of a claim for permanent disability. See General Dynamics Corp., etc. v. Director, Office of Workers' Compensation, 673 F.2d 23, 26 (1st Cir. 1982); Avallone v. Todd Shipyards Corp., 13 BRBS 348, 350, BRB Nos. 79-647, 79-647A, petition for review denied, 672 F.2d 901 (2d Cir. 1981); Wilson v. Old Dominion Stevedoring Corp., 10 BRBS 943, 944 BRB No. 78-636 (1979); Tibbetts v. Bath Iron Works Corp., 10 BRBS 245, 252, BRB No. 78-259 and 78-259A (1979); Egger v. Williamette Iron & Steel Co., 9 BRBS 897, 899 BRB No. 78-322 (1979).\\nAmerican Bridge contends that when this rule is applied to an employer contesting disability at the initial hearing, he is unfairly burdened with proving inconsistent and irreconcilable defenses that both (a) must dispute any disability at all and (b) also must prove that part of the disability is attributable to pre-accident cause.\\nThe Board rejected American Bridge's contention that it should therefore reconsider its rule with regard to claims of section 8(f) limitations. In doing so, the Board relied upon \\\"the well-established practice that a party may state its claims or defenses alternatively or hypothetically, and may also state as many separate claims or defenses as he has, regardless of consistency. See Fed.R.Civ.Pro. 8(e)(2).\\\" Carroll v. American Bridge Division, 13 BRBS 759, 760-61, BRB No. 79-522 (1981) (BRB Decision and Order, p. 4). In the case of the cited federal rule, the aim was to afford a flexible procedural basis to permit full presentation of all relevant facts and legal theories at trial and to facilitate the final settlement of the dispute on its merits at that trial. 5 Wright & Miller, Federal Practice & Procedure, \\u00a7 1282, 1283; see also \\u00a7 1202 (1969).\\nThe Board's rule thus requires raising all issues pre-hearing, so that they may all be decided at a single hearing. It is essentially based upon the same reasons of adjudicatory efficiency and fairness as is Fed.R.Civ.P. 8. We find no sound reason supporting the present employer's contention that this rule of the Board is somehow improper or beyond the Board's statutory authority or discretion in adopting administrative procedures to facilitate the resolution of disputes entrusted to it by law.\\nRemand Under the Present Circumstances?\\nAmerican Bridge alternatively contends that, in any event, in the interests of justice its section 8(f) claim should be remanded for further hearing because of several allegedly extenuating circumstances. Upon examination, none of them have merit.\\nFirst. American Bridge contends that the rule should not be applied to this case, because it was first adopted by Egger (1978), supra, which had not been published at the time of the hearing and the ALJ, who knew of Egger, failed to disclose this fact.\\nIn the first place, Egger did not involve a situation where the section 8(f) issue had not been noticed before a hearing. There, it had been noticed but, after some discussion at the hearing, was withdrawn and not considered by the ALJ. In Egger, the Board refused to hold that, under these circumstances, the employer had thereby waived the application of section 8(f), and it therefore in the interests of justice ordered a remand for consideration of the merits of the section 8(f) relief requested. The Board also then held, apparently to prevent future such misunderstandings, that \\\"it is improper to bifurcate hearings on issues that can be litigated at one hearing. In any case in which the application of section 8(f) is an issue, we hold that hereafter the issue must be raised and litigated at the first hearing of the case.\\\" Egger, supra, 9 BRBS at 899.\\nThe thrust of the opinion was to indicate disapproval of the practice of pretermitting the decision of the section 8(f) issue to a post-adjudication section 22 hearing, see note 6; but this ruling was in the context of an assumption that the section 8(f) issue had been noticed for the hearing. The Board's ruling did not intimate that, even prior to Egger, a section 8(f) claim was waived if it had not been raised at the formal hearing.\\nNor can we find any support for American Bridge's contention that, prior to Egger, the accepted procedure was a bifurcated hearing, with the section 8(f) issue being considered only after the disability issue had been determined. From a random reading of decisions involving claims under the Act, it seems apparent that it was a usual procedure to raise the section 8(f) defense or claim for determination at the same formal hearing at which disability was determined. See, e.g, Bosarge v. Mississippi Coast Marine, Inc., 8 BRBS 224, 225, BRB No. 77-465 (1978), affirmed, Mississippi Coast Marine, Inc. v. Bosarge, 637 F.2d 994, modified, 657 F.2d 665 (5th Cir. 1981).\\nSecond. American Bridge next contends that the case should be remanded under the \\\"special circumstances\\\" exception of Tibbets and Egger, where the section 8(f) issue was raised or specifically noted at the formal hearing, but the employer was procedurally misled because of the AU's action or his failure to correct the employer's obviously mistaken view as to the availability of the section 8(f) limitation. Here, although American Bridge had belatedly raised the section 8(f) issue before the deputy commissioner, it did not, in its pre-hearing statement (LS-18), notice this as an issue for determination at the formal hearing; accordingly, no information as to the (seemingly abandoned) section 8(f) claim was forwarded by the deputy commission to the ALJ. 20 C.F.R. \\u00a7 702.317(c), (d). The testimony presented before the ALJ did not implicate the issue: it did not indicate that any of the prior injuries sustained by the claimant had resulted in a \\\"permanent partial disability,\\\" one of the prerequisites for the application of section 8(f), see 33 U.S.C. \\u00a7 908(f)(1). Thus, even if the ALJ could be said to have an affirmative duty under 20 C.F.R. \\u00a7 702.338 to inform American Bridge that its section 8(f) defense would be waived unless raised, under the present facts the ALJ had no reason to suspect that this employer was proceeding under a misunderstanding as to this issue.\\nThird. American Bridge finally contends that the Tibbets \\u2014 Egger \\\"special circumstances\\\" exception here applies because, allegedly, two named deputy commissioners had informed this employer (not its attorney) that the claim for section 8(f) limitation of liability should not be asserted until after (and if) the AU found the employee to be disabled. This claim was made in allegations of a motion, not supported by affidavits of the American Bridge employee so informed or of the deputy commissioner who allegedly offered this erroneous advice. As the Board pointed out, the only exhibit offered in support of these allegations does not support it. We find no error in the refusal of either the ALJ or the Board to remand on the basis of these unsubstantiated allegations.\\nConclusion\\nAccordingly, we AFFIRM the decision of the Benefits Review Board that the attempt by American Bridge to assert its section 8(f) claim is untimely and that no circumstances are shown that justify a remand to determine this untimely-raised issue.\\n. The Board's decision is reported at Carroll v. American Bridge Division, 13 BRBS 759, BRB No. 79-532 (1981).\\n. Section 8(f), Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. \\u00a7 908(f).\\n. The purpose of section 8(f) is to prevent discrimination against handicapped employees and to encourage their employment by limiting the liability of the employer who hires a handicapped worker with knowledge of his disability. See, e.g., Mississippi Coast Marine v. Bosarge, 637 F.2d 994, 1000-01, modified, 657 F.2d 665 (5th Cir. 1981).\\n. See U. S. Dept, of Labor, Office of Workers' Compensation Programs, Form LS-18, \\\"PreHearing Statement.\\\"\\nIf the completed pre-hearing statement forms raises a new or additional issue not previously considered by the deputy commissioner, he may not transfer the case to the Chief Administrative Law Judge until he has issued an additional memorandum or recommendation as to that issue, with an opportunity to the parties to signify their agreement or disagreement therewith. \\u00a7 702.317(d); see also \\u00a7 702.316.\\n. This provision further provides that the ALJ had discretion to allow additional time for preparation of a new issue or, if the issue arises from evidence not considered in the pre-hearing procedure, to remand the case to the deputy commissioner for his evaluation or recommendation pursuant to the informal-conference procedures.\\n. Section 22 of the Act, \\u00a7 33 U.S.C. \\u00a7 922, provides that within a specified delay a party may apply for a modification of the award, pursuant to the administrative adjudicatory procedures, based upon \\\"the ground of a change in conditions or because of a mistake in a determination of fact.\\\" The Board has indicated that a section 22 request for modification of the original award may be available to afford section 8(f) relief if not previously waived. Avallone v. Todd Shipyards Corp., 13 BRBS 348, 350, n.2, BRB Nos. 79-647 & 79-647A (1981); Wilson v. Old Dominion Stevedoring Corp., 10 BRBS 943, 944, n. 1, BRB No. 78-636 (1979); Egger v. Williamette Iron & Steel Co., 9 BRBS 897, 899, BRB No. 78-322 (1979).\\n. American Bridge cites us to only one authority for this proposition, Dykes v. Jacksonville Shipyards, Inc., 13 BRBS 75, 77, n. 1, BRB No. 80-131 (1981) (concurring opinion). However, the concurring opinion only stated that prior to the holding in Egger, the Egger parties (i.e., in that case) believed and agreed that a bifurcated hearing was appropriate; not that it was the established procedure.\\n. See, e.g., Toothaker v. Triple A Machine, 8 BRBS 67, 68 (ALJ), Case No. 78-LHCA-23-S (April 20, 1978); Keeler v. General Dynamics Corp., 5 BRBS 207, 209 (ALJ), Case No. 76-LHCA-1051 (March 21, 1977); Rupalo v. Pittston Stevedoring Corp., 2 BRBS 190 (ALJ), Case No. 75-LHCA-321 (August 7, 1975).\"}"
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+"{\"id\": \"5621679\", \"name\": \"AURORA ENTERPRISES, INC. a California corporation, and Xanadu Productions, Inc., a California Corporation, Plaintiffs, v. NATIONAL BROADCASTING COMPANY, INC., a corporation, NBC International, Ltd., a corporation, National Telefilm Associates, Inc., a corporation, NTA Delaware, Inc., a corporation, NTA Films, Inc., a corporation, NTA (Canada), Ltd., a corporation, Telecommunications, Inc., a corporation, TCI Programs, Inc., a corporation, and George C. Hatch, an individual, Defendants\", \"name_abbreviation\": \"Aurora Enterprises, Inc. v. National Broadcasting Co.\", \"decision_date\": \"1981-10-20\", \"docket_number\": \"No. 81-445 AWT\", \"first_page\": \"655\", \"last_page\": \"664\", \"citations\": \"524 F. Supp. 655\", \"volume\": \"524\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the Central District of California\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:30:03.732287+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"AURORA ENTERPRISES, INC. a California corporation, and Xanadu Productions, Inc., a California Corporation, Plaintiffs, v. NATIONAL BROADCASTING COMPANY, INC., a corporation, NBC International, Ltd., a corporation, National Telefilm Associates, Inc., a corporation, NTA Delaware, Inc., a corporation, NTA Films, Inc., a corporation, NTA (Canada), Ltd., a corporation, Telecommunications, Inc., a corporation, TCI Programs, Inc., a corporation, and George C. Hatch, an individual, Defendants.\", \"head_matter\": \"AURORA ENTERPRISES, INC. a California corporation, and Xanadu Productions, Inc., a California Corporation, Plaintiffs, v. NATIONAL BROADCASTING COMPANY, INC., a corporation, NBC International, Ltd., a corporation, National Telefilm Associates, Inc., a corporation, NTA Delaware, Inc., a corporation, NTA Films, Inc., a corporation, NTA (Canada), Ltd., a corporation, Telecommunications, Inc., a corporation, TCI Programs, Inc., a corporation, and George C. Hatch, an individual, Defendants.\\nNo. 81-445 AWT.\\nUnited States District Court, C. D. California.\\nOct. 20, 1981.\\nWilliam E. Johnson, Los Angeles, Cal., for plaintiffs.\\nJohn J. Hanson, John P. Clark, Gibson, Dunn & Crutcher, Los Angeles, Cal., for National Broadcasting Co., Inc. and NBC Intern., Ltd.\\nRichard C. Yarmuth, Culp, Dwyer, Cuter-son & Grader, Seattle, Wash., Douglas L. Thorpe, Johnsen, Manfredi & Thorpe, Los Angeles, Cal., for Tele-Communications, Inc. and TCI Programs, Inc.\\nMartin S. Zohn, Pacht, Ross, Warne, Bernhard & Sears, Inc., Los Angeles, Cal., for National Telefilm Assoc., NTA Delaware, NTA Films, Inc., and NTA (Canada) Ltd.\", \"word_count\": \"4431\", \"char_count\": \"27508\", \"text\": \"MEMORANDUM OPINION\\nTASHIMA, District Judge.\\nThis is an action by the respective producers of the television shows Bonanza and The High Chaparral (\\\"Chaparral') against National Broadcasting Company (\\\"NBC\\\"), which originally purchased the broadcast rights to the two series, National Telefilm Associates, Inc., and its subsidiaries (collectively \\\"NTA\\\"), which purchased the syndication rights to the two programs in 1973 from NBC, Tele-Communications, Inc. (\\\"TCI\\\"), which controls NTA, and George C. Hatch, a director and shareholder of TCI. The First Amended Complaint (\\\"complaint\\\") alleges four claims under the Sherman Act, 15 U.S.C. \\u00a7 1 & 2, seeking treble damages under \\u00a7 4 of the Clayton Act, 15 U.S.C. \\u00a7 15, and numerous pendent claims under state law. All defendants, except Hatch (whose motion is pending), have moved to dismiss on various grounds. For the reasons stated below, their motions are granted because the complaint does not state a valid federal claim.\\nThe complaint alleges that in 1959, Aurora Enterprises, Inc., began production of the Bonanza television series. The series ran successfully on the NBC network for 13 years. In 1966, NBC entered into an agreement with Xanadu Productions, Inc. (\\\"Xanadu\\\"), to develop and produce Chaparral. In each instance, NBC was granted an exclusive license for television rights in the programs, including both network exhibition rights and syndication rights.\\nIn 1972, the Federal Communications Commission (\\\"FCC\\\") ordered the three major television networks (CBS, NBC, and ABC) to divest themselves of certain subsidiary network program rights, including syndication rights. NBC subsequently sold all of the syndication rights it then owned to NTA, but it retains as a part of the sales price a share (as do plaintiffs in its programs) of the programs' profits.\\nI. Plaintiffs Lack Standing to Assert a Block-Booking Claim.\\nPlaintiffs' first claim is based upon \\u00a7 1 of the Sherman Act, 15 U.S.C. \\u00a7 1. It alleges that defendants have conspired to \\\"block-book\\\" Bonanza and Chaparral with other, unnamed programs that defendants also control. In other words, in order to obtain a license to show Bonanza or Chaparral, licensees have allegedly been required to buy exhibition rights for other, less desirable, programs. The complaint also claims that the license fees charged for the tied programs have been artificially inflated, and the fees for the tying programs (Bonanza and Chaparral) correspondingly diminished, thus, depriving plaintiffs of some of the royalties they should have received.\\nThere is no question that block-booking is a per se violation of \\u00a7 1 of the Sherman Act, if the seller has economic power over the tying product and if a not insubstantial amount of interstate commerce is affected by the tying arrangement. United States v. Loew's, Inc., 371 U.S. 38, 51-52, 83 S.Ct. 97, 105, 9 L.Ed.2d 11 (1962); Siegel v. Chicken Delight, Inc., 448 F.2d 43, 47 (9th Cir. 1971), cert. denied, 405 U.S. 955, 92 S.Ct. 1172, 31 L.Ed.2d 232 (1972). Economic power is presumed when, as is the case here, the tying product is patented or copyrighted, Loew's, supra, 371 U.S. at 45, 83 S.Ct. at 102, and, despite its failure to identify specific instances of block-booking, the complaint adequately alleges a substantial effect on commerce. Thus, the elements of a block-booking claim are properly alleged; however, plaintiffs lack the requisite standing to assert such claims.\\nPlaintiffs rely on Mulvey v. Samuel Goldwyn Prod., 433 F.2d 1073 (9th Cir. 1970), cert. denied, 402 U.S. 923, 91 S.Ct. 1377, 28 L.Ed.2d 662 (1971). In Mulvey, on facts closely analogous to the allegations here, where defendant had admitted block-booking for purposes of its summary judgment motion, the Court, in construing the \\\"by reason of\\\" provision of \\u00a7 4 of the Clayton Act, 15 U.S.C. \\u00a7 15, held that plaintiff had standing to sue because he was in the \\\"target area.\\\" \\\"He was within the area 'which it could reasonably be foreseen would be affected' by block booking. (Twentieth Century Fox Film Corp. v. Goldwyn, supra, 328 F.2d [190] at 220.)\\\" Id. 433 F.2d at 1076. Reiterating, the Court stated in conclusion:\\n\\\"Goldwyn directed his activities at the means of distributing films in order to affect their individual revenue-producing potentials \\u2014 the target area. Mulvey's films are within this target area. Consequently, it is entirely foreseeable that Goldwyn's block booking could impair the profit potential of Mulvey's films, thus depreciating the value of Mulvey's contractual interest in the film's revenue.4 \\\"\\nId. (in footnote 4, the Court disagreed with Fields Prod., Inc. v. United Artists Corp., 432 F.2d 1010 (2d Cir. 1970) (per curiam), cert. denied, 401 U.S. 949, 91 S.Ct. 932, 28 L.Ed.2d 232 (1971)).\\nMulvey, of course, is controlling authority in this Circuit, unless it has been effectively overruled.\\nIn Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977), the Supreme Court, in construing \\u00a7 4 of the Clayton Act, held that to recover treble damages, plaintiffs \\\"must prove more than injury causally linked\\\" to an unlawful merger. Instead, \\\"[p]laintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation. It should, in short, be 'the type of loss that the claimed violations . would be likely to cause.' \\\" Id. (emphasis in original) (citation omitted). The central holding of Brunswick has been cited with approval in this Circuit in cases arising under \\u00a7 1 and 2 of the Sherman Act. E. g., A. H. Cox & Co. v. Star Machinery Co., 653 F.2d 1302, 1307 (9th Cir. 1981).\\nBrunswick makes clear that causation, foreseeability and direct injury (presence in the \\\"target area\\\") are not enough.\\n\\\"And it is quite clear that if respondents were injured, it was not 'by reason of anything forbidden in the antitrust laws': while respondents' loss occurred 'by reason of' the unlawful acquisitions, it did not occur 'by reason of' that which made the acquisitions unlawful.\\\"\\n429 U.S. at 488, 97 S.Ct. at 697. Mulvey clearly holds that any direct loss which occurs by reason of an unlawful block-booking constitutes a \\u00a7 4 antitrust injury, even though such loss does not occur by reason of that which makes block-booking unlawful. For that which makes block-booking unlawful is the injury to competition in the tied product market. The trade which is restrained by tying is the market in which the tied product would otherwise be required to compete by virtue of its own strength. Those who may suffer antitrust injury from this restraint of trade are competitors of the tied product and, conceivably, purchasers in the market for the tied and tying products.\\nThe Supreme Court has characterized the antitrust injury which results from tying arrangements thusly:\\n\\\"They deny competitors free access to the market for the tied product . At the same time buyers are forced to forego their free choice between competing products.\\\"\\nNorthern Pac. Ry. v. United States, 356 U.S. 1, 6, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). The Ninth Circuit has similarly characterized the injury to competition from tying arrangements:\\n\\\"Competitors in the tied product market are injured if they cannot offer their products on an equal basis with the distributor of the tying product. Buyers are injured because they forego choices among products and services, and the public is harmed by the adverse effect on the market for the tied product.\\\"\\nMoore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1212 (9th Cir. 1977) (citations and footnote omitted).\\nI, therefore, conclude that, in light of Brunswick, Mulvey is no longer viable precedent and, perforce, not controlling. This judgment, I believe, is confirmed by more recent authority in this Circuit. Thus, in John Lenore & Co. v. Olympia Brewing Co., 550 F.2d 495, 499 (9th Cir. 1977), this Circuit held that:\\n\\\"It is not enough to confer standing that plaintiff just prove some injury and show that this injury is within the affected area of the economy. Antitrust violations admittedly create many foreseeable ripples of injury to individuals, but the law has not allowed all of those merely affected by the ripples to sue for treble damages.\\\"\\nSee also California Computer Products, Inc. v. International Business Machines Corp., 613 F.2d 727, 732 (9th Cir. 1979).\\nBecause plaintiffs' claimed injury does not meet Brunswick's requirement that it be \\\"of the type the antitrust laws were intended to prevent\\\" and because it does not reflect \\\"the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation,\\\" 429 U.S. at 489, 97 S.Ct. at 697 (emphasis added), plaintiffs, as owners of profit rights in allegedly tying programs, lack standing to assert antitrust claims for block-booking. This conclusion is supported by cases in other circuits. See A.D.M. Corp. v. Sigma Instruments, Inc., 628 F.2d 753, 754 (1st Cir. 1980); Calderone Enterprises Corp. v. United Artists Theatre Circuit, Inc., 454 F.2d 1292, 1295 (2d Cir. 1971), cert. denied, 406 U.S. 930, 92 S.Ct. 1776, 32 L.Ed.2d 132 (1972); cf. In re Beef Indus. Antitrust Litigation, 600 F.2d 1148, 1168 (5th Cir. 1979), cert. denied sub nom. Safeway Stores Inc. v. Meat Price Investigators Ass'n, 449 U.S. 905, 101 S.Ct. 280, 66 L.Ed.2d 137 (1980) (cattle farmers and ranchers lacked standing to allege retail price fixing by grocers, resulting in reduced consumer demand for beef).\\nII. Plaintiff Xanadu's Second Claim is Barred by the Statute of Limitations.\\nThe second claim alleges that as a condition to purchasing the network exhibition rights to Chaparral in 1966, NBC insisted on also purchasing the syndication rights to that program. The complaint further alleges that all three networks repeatedly coerced independent television producers in a similar manner, at least until 1972, when the FCC forbade the networks from acquiring syndication rights. 47 C.F.R. \\u00a7 73.-658(j)(ii). Plaintiff asserts that the contract, the terms of which are still being enforced, is an unreasonable restraint of trade in violation of \\u00a7 1 of the Sherman Act.\\nNBC asserts that this claim is barred by the four-year statute of limitations applicable to antitrust claims. 15 U.S.C. \\u00a7 15b. Plaintiff Xanadu's claim is based upon the sale of its rights to NBC in 1966, well outside the limitations period. Even if that purchase were part of a continuing illegal course of conduct by NBC and the other networks, such conduct must have terminated no later than 1973, when the networks were prohibited from any further acquisition of syndication rights. Plaintiff asserts, however, that the statute of limitations has been tolled for a number of reasons.\\nFirst, plaintiff argues that the limitation period was tolled during the pendency of United States v. National Broadcasting Co., a civil antitrust action filed in this district against NBC in 1972. That case, and two similar complaints simultaneously filed against each of the other networks, were dismissed without prejudice on November 13, 1974. United States v. NBC, 65 F.R.D. 415 (C.D.Cal.1974), appeal dismissed, 421 U.S. 940, 95 S.Ct. 1668, 44 L.Ed.2d 97 (1975). Separate actions against each of the networks were refiled within a month. The action against NBC was settled by a consent decree in January 1978; however, judgments against CBS and ABC were not rendered until 1980.\\nThe statute of limitations for antitrust claims is tolled during the pendency of any civil or criminal antitrust case instituted by the United States, and for one year thereafter, as long as the respective causes of action are at least substantially similar. 15 U.S.C. \\u00a7 16(i); Leh v. General Petroleum Corp., 382 U.S. 54, 59, 86 S.Ct. 203, 207, 15 L.Ed.2d 134 (1965). This action was commenced on January 28, 1981. Therefore, even if it is assumed that the allegations of this case are substantially similar to the allegations in the earlier government case against NBC, the statute would have run since the government's case against NBC was concluded more than one year before the filing of this action.\\nPlaintiff argues, however, that for the purposes of the tolling period of \\u00a7 16(i), the action against NBC should not be deemed to have concluded until 1980, when judgments were rendered in the parallel cases against ABC and CBS. It points to the rule of this Circuit that under \\u00a7 16(i) a proceeding remains pending until a judgment has been rendered against all co-conspirators, including not only defendants in the immediate proceeding but also all defendants in any other related government actions arising out of the same conspiracy. Marine Firemen's Union v. Owens-Coming Fiberglass Corp., 503 F.2d 246, 249 (9th Cir. 1974); Maricopa County v. American Pipe & Constr. Co., 303 F.Supp. 77 (D.Ariz.1969), aff'd 431 F.2d 1145 (9th Cir. 1970), cert. denied, 401 U.S. 937, 91 S.Ct. 923, 28 L.Ed.2d 216 (1971); Utah v. American Pipe and Constr. Co., 50 F.R.D. 90, 104 (C.D.Cal. 1970). However, that rule is inapplicable here. The government filed separate actions against each network, and, unlike Maricopa County, supra, no conspiracy between the networks was alleged in any of those complaints.\\nPlaintiff next alleges that defendants fraudulently concealed the facts surrounding its (Xanadu's) claim by inaccurately reporting the revenue earned through the syndication of Bonanza and Chaparral. A properly pleaded fraudulent concealment claim must allege affirmative conduct which would, under the circumstances of the case, lead a reasonable person to believe that he did not have a claim for relief. Rutledge v. Boston Woven Hose & Rubber Co., 576 F.2d 248, 250 (9th Cir. 1978). The alleged coercion must have been evident to plaintiff in 1966, when the Chaparral contract was signed. The allegations do not adequately explain why or how inaccurate profit statements would conceal its claim and plaintiff has come forward with no plausible theory how this could be done.\\nNext, plaintiff Xanadu argues that its second claim states a continuing claim, since the contract for the purchase of rights to Chaparral is still being enforced and is continuing to cause injury to it. This theory is based upon Twin City Sportservice, Inc. v. Charles O. Finley & Co., 512 F.2d 1264 (9th Cir. 1975). Twin City involved a 1950 contract between a concession service and the then Philadelphia Athletics, granting the service an exclusive franchise. The franchise was extended in 1952, and again in 1954. When the Athletics moved to Oakland, Finley breached the contract and asserted in his defense that the contract violated the antitrust laws. The court held that Finley's counterclaim was not barred by the statute of limitations, because of the continuing nature of the alleged harm (counter-defendant's continued enforcement of the contract in question).\\nThe Twin City rule, however, was limited in In re Multidistrict Vehicle Air Pollution, 591 F.2d 68 (9th Cir.), cert. denied sub nom. AMF, Inc. v. General Motors Corp., 444 U.S. 900, 100 S.Ct. 210, 62 L.Ed.2d 136 (1979) (\\\"AMF'). The plaintiff in that case, AMF, Inc., alleged that the four major American automobile manufacturers had jointly agreed not to buy its \\\"Smog Burner\\\" device. The court found that the actions complained of had taken place in 1964, and that AMF had been completely excluded from the market prior to January 1975. The court held that AMF's injury was final, and that the statute of limitations began to run as of the earlier date.\\n\\\" 'Where the violation is final at its impact, for example, where the plaintiff's business is immediately and permanently destroyed, or where an actionable wrong is by its nature permanent at initiation without further acts, then the acts causing damage are unrepeated, and suit must be brought within the limitations period and upon the initial act.' \\\"\\n591 F.2d at 72 (quoting Poster Exchange, Inc. v. National Screen Serv. Corp., 517 F.2d 117, 126-27 (5th Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 784, 46 L.Ed.2d 643 (1976)).\\nThe holding in AMF rather than the holding in Twin City, controls this case. The injury incurred by plaintiffs, if any, was permanent at the time of sale. Assuming it is true, as plaintiffs assert, that the 1966 contract is still in force, and that NBC continues to collect a larger share of the profits than it would have received had it not allegedly coerced plaintiffs into selling the syndication rights along with the network exhibition rights; nevertheless, unlike Twin City and Hanover Shoe, the contract in question does not itself violate the antitrust laws. What is alleged to have violated the antitrust laws is NBC's exercise of coercion in 1966, and that act was \\\"by its nature permanent at initiation without further acts\\\". AMF, supra, 591 F.2d at 72.\\nFinally, plaintiffs argue that their claims could not have accrued until the damages suffered thereby became provable and ascertainable, and that their damages have become ascertainable only recently, in light of the defendants' fraudulent and inaccurate accounting. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 339, 91 S.Ct. 795, 806, 28 L.Ed.2d 77 (1971); Hanson v. Shell Oil Co., 541 F.2d 1352, 1361 (9th Cir. 1976), cert. denied, 429 U.S. 1074, 97 S.Ct. 813, 50 L.Ed.2d 792 (1977). In AMF, supra, 591 F.2d at 72-73, the same argument was raised and the Ninth Circuit there recognized the difference between uncertainty of the fact of damage, which prevents recovery, and uncertainty of the extent of damage, which does not prevent recovery. The coercion complained of in the second claim constituted certain damage at the time it occurred, in 1966; only the extent of damage may have remained uncertain. If suit had been brought by plaintiffs at the proper time, they would have had a claim in spite of the fact that Chaparrals future profitability may not have been known with certainty. An antitrust plaintiff is not required to prove damages with exactitude. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123-24, 89 S.Ct. 1562, 1576-77, 23 L.Ed.2d 129 (1969). Since plaintiff Xanadu has failed to offer a valid reason for tolling the statute of limitations, its second claim must also be dismissed.\\nIII. Plaintiffs' Third Claim Also Fails to State A Claim.\\nPlaintiffs' third claim alleges that NBC agreed to syndicate all, or almost all, of its programs through NTA and that NTA, in turn, agreed to syndicate those programs, including Bonanza and Chaparral, in such a way as to minimize competition with programming on the NBC network. This claim must be dismissed as well because, as presently framed, it does not state a claim upon which relief can be granted.\\nFirst, it is not clear whether this claim arises solely from NBC's sale of syndication rights to NTA in 1973 or whether plaintiffs are alleging a continuing agreement between defendants. If plaintiffs intend to challenge only the direct effects of the sale, this claim is barred by the statute of limitations, since it arose at the time of the sale and since plaintiffs were aware of the sale at the time it was consummated. See Part II, ante.\\nSecond, if plaintiffs intend to allege a continuing conspiracy between NBC and NTA to divide the television programming market, their allegations are insufficient without a more complete statement of the actions defendants have taken to carry out their scheme. Since NTA does not itself exhibit plaintiffs' programs, the complaint as currently framed does not adequately state how the alleged conspiracy or agreement could have inflicted an antitrust injury on plaintiffs.\\nAlthough plaintiffs have already once amended their complaint, they will be given one final opportunity to further amend this claim. Plaintiffs should set forth with specificity the nature and objective of the alleged conspiracy, its members and how the unreasonable restraint of trade alleged was sought to be accomplished. Accordingly, the third claim will be dismissed with leave to amend.\\nIV. The Attempted Monopolization Claim Must Also Be Dismissed.\\nPlaintiffs' final federal claim is that defendants' conduct, as alleged in the first three claims, \\\"was done with the specific intent of obtaining a monopoly in television production, distribution, and programming in general and on the NBC Television Network,\\\" and constitutes an attempt to monopolize such markets. To adequately allege an attempt to monopolize claim under \\u00a7 2 of the Sherman Act, 15 U.S.C. \\u00a7 2, three elements are indispensable: (1) specific intent to control prices or destroy competition in some part of commerce; (2) predatory or anticompetitive conduct directed to the accomplishment of that unlawful purpose; and (3) a dangerous probability of success. E. g., William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 652 F.2d 917, 931 (9th Cir. 1981); Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 669 (9th Cir. 1980). Plaintiffs' \\u00a7 2 claim alleges no independent facts, relying instead on those asserted in the three \\u00a7 1 claims. The dismissal of those claims requires that the \\u00a7 2 claim be dismissed as well for failure to adequately allege predatory conduct. See William Inglis & Sons Baking Co., supra, 652 F.2d at 934 n.14. In addition, there is no allegation of the third element, dangerous probability of success. Plaintiffs' fourth claim, therefore, is dismissed for failure to state a claim on which relief can be granted.\\nV. The Pendent State Claims Should Also be Dismissed.\\nThe complaint includes nine separate state law claims for violation of the Cartwright Act (Cal. Bus. & Prof. Code \\u00a7 16700 et seq.), unfair competition, breach of contract, fraud, accounting, breach of fiduciary duty, money had and received, conversion and to impose a constructive trust. These claims are ordered dismissed, in the exercise of the Court's discretion, without prejudice and without leave to amend.\\nIn United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), while the holding that federal courts have the power to hear state claims which share a common nucleus of operative facts with substantial federal claims, the Court stated:\\n\\\"That power need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims . Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law . [I]f it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals.\\\"\\nThe issues raised and proof required by plaintiffs' state law claims substantially outweigh and diverge from the issues presented by their federal antitrust claims as to which leave to amend has been granted. These claims, therefore, are more properly left for determination by the state courts.\\nConclusion\\nThe antitrust laws embody an important federal policy, but their scope is not unlimited. Because plaintiffs have not suggested how their first and second claims could be amended and, in view of the allegations heretofore made, it appearing that they cannot do so, the first and second claims are dismissed without leave to further amend. However, leave will be granted to amend the third and fourth claims. While plaintiffs may well have viable state law claims, these claims should properly be resolved by state courts. Therefore, this Court declines to exercise its pendent jurisdiction over these claims and they are dismissed without prejudice.\\n. I recognize that another judge of this district has concluded that Mulvey's vitality has not been vitiated by Brunswick and is still controlling. Laughlin v. Wells, 446 F.Supp. 48 (C.D. Cal. 1978).\\n. The Beef Indus, holding is particularly instructive, because both the Fifth and Ninth Circuits apply the same \\\"target area\\\" approach to determine standing in antitrust cases. In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 497 F.Supp. 218 (C.D.Cal.1980).\\n. No conspiracy is alleged in this claim, other than the incorporation by reference of the alleged block-booking conspiracy. The only contract alleged is the one between NBC and Xanadu. The second claim, therefore, fails to state a claim under \\u00a7 1 of the Sherman Act because it does not allege an operative contract, combination or conspiracy.\\n. The bar of the statute, if it is clearly evident on the face of the complaint, may properly be raised on a motion to dismiss. Steiner v. 20th Century Fox Film Corp., 232 F.2d 190, 197 (9th Cir. 1956).\\n. The holding in Twin City was, in turn, based on a footnote in Hanover Shoe Inc. v. United Shoe Mach., 392 U.S. 481, 502 n.15, 88 S.Ct. 2224, 2236 n.15, 20 L.Ed.2d 1231 (1968), which stated that defendant's action in collecting rent on a lease that violated the antitrust law constituted a continuing antitrust violation, even though the lease had been executed outside the limitation period. See also Imperial Point Collonnades Condominium, Inc. v. Mangurian, 549 F.2d 1029 (5th Cir.), cert. denied sub nom. Mangurian v. Thompson, 434 U.S. 859, 98 S.Ct. 185, 54 L.Ed.2d 132 (1977); Baker v. F & F Inv., 420 F.2d 1191 (7th Cir.), cert. denied, 400 U.S. 821, 91 S.Ct. 40, 27 L.Ed.2d 49 (1970).\\n. Plaintiffs' standing to pursue this claim also appears to be highly doubtful. Since plaintiffs seem to be claiming that their own syndicator, NTA, was one of the conspirators in the attempted monopolization scheme, plaintiffs would appear to be the beneficiaries and not the victims of the attempt, i. e., the injury, if any, suffered by plaintiffs from NTA's attempt to monopolize was not an antitrust injury. See Part I, ante.\"}"
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+"{\"id\": \"5682099\", \"name\": \"Raymond O. TESCH, et al. v. UNITED STATES of America, et al.\", \"name_abbreviation\": \"Tesch v. United States\", \"decision_date\": \"1982-09-09\", \"docket_number\": \"Civ. A. No. 81-3956\", \"first_page\": \"526\", \"last_page\": \"531\", \"citations\": \"546 F. Supp. 526\", \"volume\": \"546\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the Eastern District of Pennsylvania\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T00:11:11.573522+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Raymond O. TESCH, et al. v. UNITED STATES of America, et al.\", \"head_matter\": \"Raymond O. TESCH, et al. v. UNITED STATES of America, et al.\\nCiv. A. No. 81-3956.\\nUnited States District Court, E. D. Pennsylvania.\\nSept. 9, 1982.\\nHerbert J. Kolsby, Kolsby & Gordon, Philadelphia, Pa., for plaintiffs.\\nAlexander E. Ewing, Jr., Asst. U. S. Atty., Philadelphia, Pa., for defendant.\\nAaron M. Fine, Arthur M. Kaplan, Fine, Kaplan & Black, Philadelphia, Pa., for third party defendants.\", \"word_count\": \"2788\", \"char_count\": \"17306\", \"text\": \"MEMORANDUM\\nGILES, District Judge.\\nThird-party defendants Ballard, Spahr, Andrews & Ingersoll, John Tingaba, Esquire and Linda S. Martin, Esquire, (hereinafter referred to collectively as \\\"Ballard\\\") filed this Motion to Dismiss or Strike Defendant United States' Amended Third-Party Complaint against them. Since matters outside the pleadings were submitted, I shall treat the motion as one for summary judgment. Fed. R. Civ. P. 12(b)(6). For the following reasons the motion is granted.\\nPlaintiff, a representative of the estate of William Hoick, filed suit against the United States under the Federal Tort Claims Act, 28 U.S.C. \\u00a7 2672, alleging medical malpractice by the Veterans Administration Hospital (\\\"VA Hospital\\\"), which purportedly resulted in Hoick's death. The United States filed an Amended Third Party Complaint against Ballard asserting that it is liable to the United States for contribution or indemnity.\\nTo understand fully the basis of the United States' claims against Ballard, some background is necessary. Ballard represented Hoick in a personal injury action filed in 1977 before this court. In that suit Hoick sought recovery of damages from GAF Corporation for injuries sustained on August 4, 1975, when the tractor-trailer he was driving failed to negotiate a turn. Hoick was rendered a quadriplegic as a result of the accident and was hospitalized in VA hospitals, until December 16, 1977 when he was transferred from the VA hospital in Albuquerque, New Mexico to a private nursing home in the same city.\\nIn preparation for Hoick's trial, which was scheduled for February, 1978, third-party defendant Martin requested VA District Counsel in Philadelphia to transfer Hoick to Philadelphia to testify at his trial. On February 24, 1978, Hoick was transferred by a private air ambulance service in a fifteen hour flight during which he allegedly received inadequate care. He was ill upon his arrival in Philadelphia, and his condition worsened until he finally died on March 15, 1978. Due to his illness, Hoick could not testify at his trial and on March 10, 1978, his case settled for $400,000. In his complaint against the United States, plaintiff asserts the compromised settlement as an element of damage arising from Hoick's death.\\nIn this action, the United States bases its claims against Ballard on two theories: (1) Ballard negligently decided to transport Hoick even though his condition was precarious, and negligently provided for his care en route and (2) Ballard did not preserve Hoick's testimony for trial, thus contributing to plaintiff's alleged injury \\u2014 the compromise of his personal injury action due to his inability to testify. Ballard's motion asserts that neither of these purported bases of liability supports the amended third party complaint. In deciding this motion, I must view all inferences to be drawn from the underlying facts in the light most favorable to the non-moving party, and must grant summary judgment only if there is no genuine issue of material fact and judgment as a matter of law is appropriate. Continental Insurance Co. v. Bodie, 682 F.2d 436 at 439-40 (3d Cir., 1982). However, once Ballard, as the moving party, sustains its burden, the United States, as the non-movant must come forward with opposing evidentiary matter beyond the allegations of the complaint to show the existence. of a disputed issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Applied to the undisputed facts and legal principles set forth below, these standards require granting Ballard's motion.\\nFederal Rule of Civil Procedure 14(a) provides, in part, that \\\"a defending party, as a third-party plaintiff, may cause a . . . complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of plaintiff's claim against him.\\\" Fed. R. Civ. P. 14(a). A third party plaintiff's claim may be asserted under this rule only when the third-party defendant's liability is derivative or secondary. A third party defendant can not be joined simply because that party may be solely liable to the plaintiff. See Johnson & Johnson v. Leonard Kunkin, No. 81-0126, slip op. at 1 (E.D. Pa. January 11, 1982); Klotz v. Superior Electric Products Corp., 498 F.Supp. 1099 (E.D. Pa. 1980); 6 C. Wright & A. Miller, Federal Practice and Procedure \\u00a7 1446 at 246 (1964).\\nIn this case, the basis of the United States' (third-party plaintiff's) claim is either indemnity or contribution between joint tortfeasors. Impleader under Fed. R. Civ. P. 14(a) is procedural in nature and does not in itself create a right of indemnity or contribution. That right must be recognized by the applicable substantive law. See 3 J. Moore, Federal Practice \\u00b6 14.03[1] and cases cited therein. When the United States, as defendant in an action brought pursuant to the Federal Tort Claims Act seeks contribution or indemnity from a private person, courts have held that the law of the state where the tort occurred, in this case Pennsylvania, determines the right of contribution or indemnity. See United States v. Arizona, 214 F.2d 389, 391 n. 1 (9th Cir. 1954); Lee v. Brooks, 315 F.Supp. 729, 732 n. 14 (D. Haw. 1970); Yost v. United States, 212 F.Supp. 410, 412-13 (N.D. Cal. 1963). See generally 3 J. Moore, Federal Practice \\u00b6 14.29.\\nUnder Pennsylvania law, indemnity is limited to situations in which the liability of the defendant is alleged to be secondary or passive. The Pennsylvania Supreme Court in Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951) stated:\\nThe right of indemnity rests upon a difference between the primary and the secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable.\\n366 Pa. at 325, 77 A.2d 368. (Emphasis in original).\\nThe court then distinguished primary from secondary liability, stating that the latter rests upon imputed or constructive fault. Id. at 328, 77 A.2d 368. Plaintiff's complaint cannot be construed as alleging passive or secondary negligence by the United States and primary negligence on the part of Ballard. Neither are facts alleged which would establish the requisite contractual or other special relationship between the United States and Ballard. Thus, there is no legally cognizable basis for a claim for indemnity by the United States against third-party defendants.\\nThe United States asserts, alternatively, that it is entitled to contribution from Ballard since they are joint tortfeasors, whose combined conduct caused a single injury to plaintiff \\u2014 his death and the concomitant compromise of his personal injury claim.\\nIt is fundamental that a right to contribution in a tort action arises only among joint tortfeasors. Lasprogata v. Qualls, 263 Pa.Super.Ct. 174, 178 n. 2, 397 A.2d 803, 805 n. 2 (1979). A joint tortfeasor was defined by the Pennsylvania Statute applicable at the time of Hoick's death as \\\"two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against some or all of them.\\\" 12 P.S. \\u00a7 2082 (1951) (repealed and replaced by 42 Pa.Cons.Stat.Ann. \\u00a7 8322, effective June 27, 1978). In Lasprogata v. Qualls, supra, the Pennsylvania Superior Court defined joint tortfeasor by stating \\\" 'the parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury.' \\\" Id. at 179 n. 4, 397 A.2d 803 (quoting Black's Law Dictionary, 4th Ed. (1968) at 1661). Two persons are not acting jointly for purposes of committing a joint tort if \\\"[t]he acts of the original wrongdoer [and the joint tortfeasor] are severable as to time, neither having the opportunity to guard against the other's acts, and each breaching a different duty owed to the injured plaintiff.\\\" Id. at 179, 805, 397 A.2d 803.\\nWhere the pleadings show separate torts, as defined above, rather than a joint tort, dismissal of the third-party action is appropriate. Klotz v. Superior Electric Products Corp., 498 F.Supp. 1099 (E.D. Pa. 1980); Martin v. United States, 162 F.Supp. 441 (E.D. Pa. 1958).\\nThe United States' claim for contribution has two facets. Count II of the Amended Third Party Complaint asserts that Ballard jointly contributed to plaintiff's injury by not preserving his testimony. Applying the standards set forth above, I find that even if Ballard's conduct is actionable, the medical malpractice alleged in plaintiff's complaint against the United States is separate and distinct from the failure to preserve testimony alleged by the United States. These are separate and distinct causes of action committed by different persons, owing different duties to the plaintiff, at clearly severable times with neither party having the opportunity to guard against the other's acts. The outcome of the United States' claim against Ballard is not derivative of or determined by the outcome of plaintiff's claim against the United States. As such, separate and not joint torts are alleged and contribution is not appropriate. See Mallesky v. Stevens, 427 Pa. 352, 235 A.2d 154 (1967) and Rodich v. Rodich, 421 Pa. 154, 218 A.2d 816 (1966) (separate auto crashes occurring within minutes of each other causing same injuries to plaintiff not joint torts). See also: Klotz v. Superior Electric Products Corp., 498 F.Supp. 1099 (E.D. Pa. 1980); Martin v. United States, 162 F.Supp. 441 (E.D. Pa. 1958).\\nThe second facet of the contribution claim is asserted in Count I of the Amended Third Party Complaint, which alleges that Ballard acted jointly in causing plaintiff's death when it made the decision to transport plaintiff to Philadelphia. The United States asserts that this decision amounted to an assumption of duty to assure that Mr. Hoick was fit to travel and that proper facilities for travel were available.\\nEven assuming such a duty exists, the undisputed facts establish that there was no breach of that duty. Allegedly, Ballard negligently made the decision to transport Mr. Hoick. However, the undisputed facts of record indicate otherwise. Martin's uncontradicted affidavit states that Ballard secured the approval of Mr. Hoick's physician, Dr. Lassetter before Mr. Hoick was transported. Dr. Lassetter certified him fit to travel to Philadelphia in order to testify at his trial. Ballard then reported this advice to Mr. and Mrs. Hoick. There is no contention that Ballard inaccurately reported Dr. Lassetter's advice, or that it purported to give medical advice of its own. Rather, the United States claims that Ballard should have relied on the medical opinions of decedent's treating psychiatrist and physician at the Veteran's Hospital, who had concluded, respectively, that Mr. Hoick could not cooperate in any legal proceeding and that he was not stable enough for a transfer to testify at trial.\\nHowever, these opinions were rendered in November and December, 1977 while decedent was still under care at the VA hospital. In February, 1978, when the decision to transport him was made, the parties agree that decedent was a patient at the Ridgecrest Manor Nursing Home under the care of Dr. Lassetter. Since Ballard undeniably secured his approval, prior to transporting Hoick, I find as a matter of fact and law that Ballard acted properly insofar as it was instrumental in the decision to transport Hoick.\\nThe United States further asserts that a factual issue exists as to whether Ballard was negligent in failing to have certain tests performed to ensure Hoick's fitness for travel. It is undisputed that these tests were not performed. The dispute arises as to whether third-party defendants are legally responsible for their non-performance. Even if third-party defendants arguably had a duty to perform their \\\"undertaking\\\" properly with regard to Hoick's transportation, that duty was satisfied by obtaining the advance approval of his personal physician. There is no allegation that Ballard knew or should have known that Dr. Lassetter's opinion was medically unsound. Ballard simply relied upon the advice of Hoick's personal physician. Under these circumstances, it is patently unfair to impose upon counsel a duty to override or second-guess the advice of their client's treating physician.\\nAs to the allegation that Ballard was negligent in arranging for Hoick's transportation, I also find summary judgment appropriate. First, the affidavit of Linda S. Martin flatly states that Ballard did not arrange for his transportation, but that arrangements were made and paid for by the VA hospital. The United States has submitted affidavits which do not contradict this essential fact. Instead, the United States asserts that while the VA paid for the transportation, VA representatives do not recall arranging for Hoick's travel and care beyond making payment and ensuring that proper facilities were available for him on his arrival. These statements do not dispute the essential fact that Ballard did not make the arrangements in question.\\nMoreover, even if Ballard played a part in arranging for Hoick's transportation, that would not, of itself, make its conduct actionable. Missing from the United States' complaint is any allegation that Ballard knew or should have known that the air ambulance service which transported decedent lacked adequate facilities or was known to provide inadequate services in cases such as this. Nor is there an allegation that the ambulance service acted as agents for Ballard. Absent such allegations, there is no basis, as a matter of law, upon which Ballard can be liable for the negligence of the ambulance service while en route to Philadelphia.\\nThus, as a matter of fact and law, there is no basis upon which to hold Ballard liable on either an indemnity or contribution theory, and summary judgment is granted in favor of third-party defendants and against third-party plaintiff.\\nAn appropriate order follows.\\n. Ballard attached certain exhibits to its Motion to Dismiss which rendered the motion appropriate for summary judgment treatment. On March 19, 1982, I instructed the parties that I would so treat the motion and ordered them to submit whatever additional materials they deemed appropriate, with special emphasis upon six enumerated areas. The United States filed a motion for continuance of consideration of the summary judgment motion pursuant to Federal Rule of Civil Procedure 56(f), claiming that the information requested in my order was in Ballard's possession. I denied that motion since I found that the information should be equally available to either party.\\n. Whether the United States is entitled to indemnity or contribution has an obvious effect on federal fiscal policy. As a result, Professor Moore argues that the federal courts should develop a uniform federal law of contribution/indemnity to avoid the anomalous results which may occur when state law is applied. 3 J. Moore, supra at \\u00b6 14.29. Even though the matter may be a federal one, the courts which have considered the question have chosen to apply state law, relying in part on the decision of the United States Supreme Court in United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951). In this case, the court held that the Federal Tort Claims Act permits impleader of the United States as a third-party defendant to answer a claim for contribution, as if the United States were a private individual. Id. at 544, 71 S.Ct. at 401. The court intimated that local substantive law would be determinative. Id. at 552, 71 S.Ct. at 405.\\n. The United States asserts that the Lasprogata rule has been discredited by subsequent case law in Pennsylvania and by two Third Circuit opinions, Duckworth v. Ford Motor Co., 320 F.2d 130 (3d Cir. 1963) (allowing contribution between manufacturer and dealer) and Chamberlain v. Carborundum Co., 485 F.2d 31 (3d Cir. 1973) (allowing contribution between manufacturer and employer sued under both \\u00a7 402A and negligence principles for injuries to employee caused by defective machinery.) Since the latter two opinions precede Lasprogata, I do not find the United States' position persuasive with regard to these cases. Similarly, I do not find that the Pennsylvania case law cited by plaintiff detracts from Lasprogata. For example, Embrey v. Borough of West Mifflin, 257 Pa.Super.Ct. 168, 390 A.2d 765 (1978) is inapposite as it concerns apportionment between two active tortfeasors and not contribution among joint tortfeasors. Moreover, Lasprogata has recently been adopted by the Pennsylvania Superior Court in Voyles v. Corwin, 295 Pa.Super.Ct. 126, 441 A.2d 381 (1982).\"}"
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+"{\"id\": \"5728258\", \"name\": \"Manuel GARCIA, Petitioner, v. Alberto R. GONZALES, Respondent\", \"name_abbreviation\": \"Garcia v. Gonzales\", \"decision_date\": \"2006-12-18\", \"docket_number\": \"No. 05-3993\", \"first_page\": \"521\", \"last_page\": \"525\", \"citations\": \"210 F. App'x 521\", \"volume\": \"210\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Seventh Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T21:33:06.055820+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Hon. WILLIAM J. BAUER, Circuit Judge, Hon. JOHN L. COFFEY, Circuit Judge, Hon. ANN CLAIRE WILLIAMS, Circuit Judge.\", \"parties\": \"Manuel GARCIA, Petitioner, v. Alberto R. GONZALES, Respondent.\", \"head_matter\": \"Manuel GARCIA, Petitioner, v. Alberto R. GONZALES, Respondent.\\nNo. 05-3993.\\nUnited States Court of Appeals, Seventh Circuit.\\nArgued Dec. 12, 2006.\\nDecided Dec. 18, 2006.\\nWilliam A. Quiceno, Kempster, Keller & Lenz, Chicago, IL, for Petitioner.\\nKaren Lundgren, Department of Homeland Security Office of the Chief Counsel, Chicago, IL, Margot L. Nadel, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.\\nBefore Hon. WILLIAM J. BAUER, Circuit Judge, Hon. JOHN L. COFFEY, Circuit Judge, Hon. ANN CLAIRE WILLIAMS, Circuit Judge.\", \"word_count\": \"1932\", \"char_count\": \"12268\", \"text\": \"ORDER\\nManuel Garcia, a Mexican citizen, applied for cancellation of removal after the initiation of removal proceedings against him. The Immigration Judge found Garcia statutorily ineligible for this relief because he failed to demonstrate that he was physically present in the United States for ten years prior to the initiation of the proceedings, and the Board of Immigration Appeals affirmed. Garcia now petitions for review, and we deny his petition.\\nGarcia first entered the United States without inspection in December 1989 through San Ysidro, California and has remained in the United States except for two trips he took to Mexico. He traveled first in December 1992 for seven weeks before returning without inspection through Nogales, Arizona. He traveled a second time in December 1994 to attend to his ailing mother. He first attempted to reenter without inspection through No-gales in January 1995, but about one mile inside the United States he encountered an immigration officer who informed him that he could either appear before an IJ or sign a voluntary departure form and leave the United States. Garcia signed the form to avoid incarceration and returned to Mexico, but reentered the United States without inspection the next day.\\nIn June 2000, the INS initiated removal proceedings against Garcia and he applied for cancellation of removal, a form of relief that allows the Attorney General to cancel removal of certain deportable or inadmissible aliens. See 8 U.S.C. \\u00a7 1229b(b). To be eligible for this relief, an alien must prove that he (1) has been continuously present in the United States for ten years prior to seeking this relief; (2) displays good moral character; (3) has not been convicted of certain, enumerated criminal offense; and (4) his removal would result in \\\"exceptional and extremely unusual hardship\\\" to his United States citizen or lawful permanent resident family members. Id. at \\u00a7 1229b(b)(1); Hashish v. Gonzales, 442 F.3d 572, 574-575 (7th Cir. 2006).\\nThe IJ denied Garcia's application, concluding that he was statutorily ineligible for cancellation of removal because he could not prove that he had been continuously present in the United States for the ten years immediately preceding his application. Under \\u00a7 1229b(a)(2), Garcia's brief trips to Mexico alone did not end his continuous physical presence because his trips never lasted more than 90 days individually, nor amounted to 180 days of absence in the aggregate. See 8 U.S.C. \\u00a7 1229b(d)(2). However, citing In re: Hilario Romalez-Alcaide, 23 I. & N. Dec. 423, 424 (BIA 2002), which held that \\\"a departure that is compelled under threat of the institution of deportation or removal proceedings is a break of physical presence,\\\" the IJ concluded that Garcia's return to Mexico after agreeing to depart voluntarily in lieu of appearing before a judge constituted a break in his physical presence.\\nThe BIA adopted and affirmed the IJ's decision, noting that the IJ correctly determined that Garcia was ineligible for cancellation of removal because his continuous physical presence \\\"ended at the time he was compelled to depart the United States under threat of the institution of removal proceedings in 1995.\\\" Garcia moved for reconsideration, but the BIA denied this motion. On appeal, Garcia challenges only the denial of his request for cancellation of removal.\\nWe must first determine if we have subject matter jurisdiction over Garcia's case, even if, as is the case here, the parties fail to raise this issue. See Morales-Morales v. Ashcroft, 384 F.3d 418, 421 (7th Cir.2004). Notably, 8 U.S.C. \\u00a7 1252(a)(2)(B) limits federal appellate review of decisions regarding cancellation of removal. However, we have held, like our sister circuits, that we retain jurisdiction to review nondiscretionary questions of statutory interpretation, such as the meaning of the term \\\"continuous physical presence.\\\" See Morales-Morales, 384 F.3d at 422-23; Mireles-Valdez v. Ashcroft, 349 F.3d 213, 217 (5th Cir.2003). Since the passage of the REAL ID Act of 2005, which allows courts to review \\\"constitutional claims or questions of law,\\\" we have continued to permit review of \\\"question[s] of statutory interpretation,\\\" Cuellar Lopez v. Gonzales, 427 F.3d 492, 495 (7th Cir. 2005), though we may not review the application of facts to legal standards. Pub.L. No. 109-13, 119 Stat. 231, \\u00a7 106(a)(l)(A)(iii) (amending 8 U.S.C. \\u00a7 1252(a)(2)(D)); Cevilla v. Gonzales, 446 F.3d 658, 661 (7th Cir.2006) (holding that court lacks jurisdiction to review whether IJ correctly applied facts to the continuous physical presence standard). To the extent Garcia raises issues of statutory construction, we have jurisdiction to review his claims.\\nProceeding to the merits, Garcia argues that the IJ and BIA misconstrued the statutory requirements for cancellation of removal when they found him ineligible for this relief. He focuses on the interpretation of \\u00a7 1229b(b)(l)(A), which requires an alien to demonstrate that he \\\"has been physically present in the United States for a continuous period of not less than ten years\\\" before applying for relief. He argues that the BIA erred when it concluded that he broke his continuous physical presence by briefly leaving the United States and signing a voluntary departure form, in lieu of appearing before a judge.\\nWe have held that \\\"voluntary departure under threat of deportation or removal proceedings . constitutes a break in continuous physical presence,\\\" but an informal agreement to leave the country after a brief detention by Border Patrol agents does not. Morales-Morales, 384 F.3d at 428. Under current regulations, formal voluntary departure requires an alien to apply for relief, accepting its terms and conditions, and mandates that voluntary departure orders be communicated in writ ing on a specified form, warning the alien of the penalties for violating the order. 8 C.F.R. \\u00a7 240.25(b), (c). We have compared these \\\"elaborate conditions\\\" to a \\\"functional plea bargain,\\\" where the \\\"alien leaves . in lieu of being placed in proceedings [and] . [t]here is no legitimate expectation by either of the parties that an alien could illegally reenter and resume a period of continuous physical presence.\\\" Morales-Morales, 384 F.3d at 426, 428 (citations and quotation marks omitted). In Morales-Morales, the petitioner testified that over a six-day period, she repeatedly entered the United States without inspection, encountered Border Patrol agents who informally detained her, and consequently agreed to return to Mexico. The IJ determined that her agreement to leave the United States constituted a break in her physical presence. We reversed, holding that her agreement to leave did not constitute \\\"formal voluntary departure,\\\" and therefore did not constitute a break in her continuous physical presence in the United States. Id. at 428.\\nGarcia likens his case to Morales-Morales, and argues that the IJ and BIA incorrectly concluded that his informal agreement to leave the United States constituted a break in his physical presence. He maintains that there is no evidence that a voluntary departure order was issued pursuant to the \\\"elaborate conditions\\\" in 8 C.F.R. \\u00a7 240.25 because the background check performed by the Department of Homeland Security failed to uncover any record of his encounter with the immigration officer or a copy of the voluntary departure form. He argues that the IJ and BIA erred in concluding that this brief trip, without the hallmarks of a formal voluntary departure, constituted a break in his physical presence.\\nBut Garcia's case is distinguishable from Morales-Morales. First, Garcia cites regulations currently in effect, not those in effect in January 1995 when he agreed to return to Mexico. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) ushered in new voluntary departure regulations, which were in effect both when Morales-Morales attempted to enter and now. See 8 C.F.R. \\u00a7 240.25. However, in 1995, before the passage of IIRIRA, 8 U.S.C. \\u00a7 1252(b) allowed certain aliens to voluntarily depart from the United States before the initiation of deportation proceedings if they conceded their deportability, but the implementing regulations did not require the alien to file an application or the agency to issue written decisions, as they do today. Compare 8 C.F.R. \\u00a7 241.5(b) (1995), with 8 C.F.R. \\u00a7 240.25 (2005). Garcia's written agreement to leave the United States to avoid appearing before an IJ met the looser procedural requirements in the 1995 regulations and was sufficient to extinguish any legitimate expectation that he could illegally reenter and resume a period of continuous physical presence. See Palomino v. Ashcroft, 354 F.3d 942, 943, 945 (8th Cir. 2004) (holding that alien's continuous physical presence ended when he chose to return to Mexico after entering without inspection and encountering INS officials who gave him the option to depart voluntarily or face deportation proceedings); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 218 (5th Cir.2003) (holding that administrative voluntary departure granted at the border constitutes a break in physical presence).\\nFurthermore, Garcia's agreement to leave the United States acted like a functional plea bargain, unlike Morales-Morales' agreement to simply turn around and return to Mexico. Garcia was not simply picked up by Border Patrol agents and returned to Mexico, cf. Morales-Morales, 384 F.3d at 420, 427. Instead, presented with the option of either voluntarily returning to Mexico or appearing before an IJ, Garcia left the United States and avoided an appearance before an IJ and certain incarceration. This agreement formed a functional plea bargain and constituted a break in his physical presence.\\nGarcia also argues that he agreed to return to Mexico not under the threat of removal proceedings, but rather under threat of incarceration and the need to seek medical attention for his brother, who hurt his ankle before their encounter with the immigration officer. Garcia contends that Romalez-Alcaide held that only departure \\\"compelled under threat of the institution of deportation or removal proceedings is a break of physical presence.\\\" 23 I. & N. Dec. at 424. He maintains that because he departed to avoid incarceration, he retained a legitimate expectation that he could return to the United States and resume his period of continuous physical presence for purposes of cancellation of removal.\\nBut we lack jurisdiction to address Garcia's ultimate concern \\u2014 the BIA's finding, consistent with Romalez-Alcaide, that he \\\"was compelled to depart the United States under threat of the institution of removal proceedings.\\\" Here, Garcia does not contest the legal standard used by the BIA, but challenges its factual finding, contending that he left the United States fearing incarceration and hoping to find medical help for his brother. But we lack jurisdiction to review whether the IJ or BIA correctly applied the continuous physical presence legal standard to the facts in Garcia's case. See Cevilla, 446 F.3d at 661.\\nEven if we could exercise jurisdiction over the Board's ruling, substantial evidence supports its findings. Garcia consistently testified that he chose to return to Mexico to avoid appearing before an IJ, and his repeated entries without inspection demonstrate that he knew his presence in the United States was not authorized. Given his illegal entries, the BIA and IJ reasonably inferred that Garcia knew that his appearance before a judge would result not only in incarceration, but also in his removal from the United States.\\nAccordingly, we deny the petition for review.\"}"
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+"{\"id\": \"5734711\", \"name\": \"IN RE: AT & T MOBILITY WIRELESS DATA SERVICES SALES TAX LITIGATION\", \"name_abbreviation\": \"In re AT & T Mobility Wireless Data Services Sales Tax Litigation\", \"decision_date\": \"2010-04-07\", \"docket_number\": \"No. MDL 2147\", \"first_page\": \"1378\", \"last_page\": \"1382\", \"citations\": \"710 F. Supp. 2d 1378\", \"volume\": \"710\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States Judicial Panel on Multidistrict Litigation\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T21:26:36.502179+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before JOHN G. HEYBURN II, Chairman, ROBERT L. MILLER, JR.*, EATHRYN H. VRATIL, DAVID R. HANSEN, W. ROYAL FURGESON, JR., FRANK C. DAMRELL, JR., DAVID G. TRAGER*, Judges of the Panel.\", \"parties\": \"IN RE: AT & T MOBILITY WIRELESS DATA SERVICES SALES TAX LITIGATION.\", \"head_matter\": \"IN RE: AT & T MOBILITY WIRELESS DATA SERVICES SALES TAX LITIGATION.\\nNo. MDL 2147.\\nUnited States Judicial Panel on Multidistrict Litigation.\\nApril 7, 2010.\\nBefore JOHN G. HEYBURN II, Chairman, ROBERT L. MILLER, JR.*, EATHRYN H. VRATIL, DAVID R. HANSEN, W. ROYAL FURGESON, JR., FRANK C. DAMRELL, JR., DAVID G. TRAGER*, Judges of the Panel.\", \"word_count\": \"1584\", \"char_count\": \"10089\", \"text\": \"TRANSFER ORDER\\nBefore the entire Panel : Common defendant AT & T Mobility LLC (AT & T Mobility) has moved, pursuant to 28 U.S.C. \\u00a7 1407, for coordinated or consolidated pretrial proceedings of this litigation in the Southern District of Illinois. Plaintiffs in 27 actions and twelve potentially related actions support the motion. Plaintiffs in two potentially related actions pending in the Northern District of Illinois and the Southern District of Florida, respectively, suggest centralization in the Northern District of Illinois. Plaintiff in a potentially related action pending in the Eastern District of Louisiana suggests centralization in that district. Plaintiffs in the Eastern District of Michigan Wiand action and the Southern District of Texas Johnson action oppose centralization and/or inclusion of their actions in centralized proceedings or, alternatively, support centralization in the Northern District of Illinois.\\nThis litigation currently consists of 29 actions listed on Schedules A and B and pending in 28 districts as follows: two actions in the Eastern District of Michigan and one action each in the Northern District of Alabama, the Eastern District of Arkansas, the District of Colorado, the District of Delaware, the Southern District of Florida, the Northern District of Georgia, the Southern District of Illinois, the Northern District of Indiana, the Southern District of Iowa, the District of Kansas, the Eastern District of Kentucky, the Western District of Louisiana, the District of Massachusetts, the Southern District of Mississippi, the Western District of Missouri, the District of Nebraska, the District of New Jersey, the Southern District of New York, the Eastern District of North Carolina, the Southern District of Ohio, the Western District of Oklahoma, the Western District of Pennsylvania, the District of Rhode Island, the District of South Carolina, the Eastern District of Tennessee, the Southern District of Texas, and the Western District of Texas.\\nThe issue in every one of these cases is whether the collection of particular state and local taxes violates the federal Internet Tax Freedom Act (ITFA) prohibition against the imposition of such taxes on internet access. In theory, deciding these cases could involve applying 50 different state tax regimes to the ITFA. Not surprisingly, certain plaintiffs argue, inter alia, that (1) applicability of the ITFA will vary from state to state and each state will require a different analysis; and (2) centralization could encourage an anti-class action direction to these actions in that defendant might later argue against nationwide class certification based on differences in the impact of the applicable tax law on a state by state basis. The Eastern District of Michigan Wiand plaintiff suggests that, if the Panel grants centralization, the actions should be remanded to them transferor courts for rulings on class certification.\\nWe have considered these arguments carefully because they have some quite obvious merit and logic to their credit. Nevertheless, we find that the benefits of centralization are significant and that a transferee judge can easily deal with the difficulties inherent to centralization. Section 1407 does not require a complete identity or even a majority of common factual or legal issues as a prerequisite to transfer. Discovery regarding AT & T Mobility's billing practices will undoubtedly overlap and many of the legal issues will turn on similar facts and law. Consequently, centralization will save considerable judicial time and will prevent the likelihood of inconsistent rulings, especially with regard to class certification. Centralization places all but one of these actions before a single judge who can formulate a pretrial program that: (1) allows discovery with respect to any non-common issues to proceed concurrently with discovery on common issues, In re Joseph F. Smith Patent Litigation, 407 F.Supp. 1403, 1404 (Jud.Pan. Mult.Lit.1976); and (2) ensures that pretrial proceedings are conducted in a manner leading to the just and expeditious resolution of these actions to the overall benefit of the parties.\\nFor all these reasons, we find that the 28 actions on Schedule A involve common questions of fact and that centralization of these actions under Section 1407 in the Northern District of Illinois will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Centralization under Section 1407 will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the resources of the parties, their counsel, and the judiciary.\\nThe Southern District of Texas Johnson plaintiff argues that his action should not be included in centralized proceedings, because his claims derive entirely from Texas state law and do not arise under the ITFA. We are persuaded that the Johnson action, listed on Schedule B, is distinct enough for exclusion from the centralized proceedings.\\nAlmost any forum among those handling the many constituent and potentially related cases could be appropriate for this MDL. The agreement of the moving defendant and counsel handling many of the cases is often persuasive, but is never dispositive. Among the many possibilities, the Panel chooses the Northern District of Illinois. This district is supported by plaintiffs in several districts and comports with the moving defendant's initial request for centralization in a geographically central forum. Moreover, Judge Amy J. St. Eve has the time and experience to manage this litigation efficiently.\\nIT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. \\u00a7 1407, the actions listed on Schedule A are transferred to the Northern District of Illinois and, with the consent of that court, assigned to the Honorable Amy J. St. Eve for coordinated or consolidated pretrial proceedings.\\nIT IS FURTHER ORDERED that transfer under Section 1407 of the action listed on Schedule B is denied.\\nSCHEDULE A\\nMDL No. 2147-IN RE: AT&T MOBILITY WIRELESS DATA SERVICES SALES TAX LITIGATION\\nNorthern District of Alabama\\nStephanie Diethelm v. AT & T Mobility, LLC, C.A. No. 2:09-2546\\nEastern District of Arkansas\\nDorothy Taylor v. American Telephone & Telegraph Co., et al., C.A. No. 4:09-938\\nDistrict of Colorado\\nWilliam A. Wieland v. AT & T Mobility, LLC, C.A. No. 1:09-2991\\nDistrict of Delaware\\nKathy J. Cooper v. AT & T Mobility, LLC, C.A. No. 1:09-992\\nSouthern District of Florida\\nAdrienne D. Munson v. AT & T Mobility, LLC, C.A. No. 9:09-82439\\nNorthern District of Georgia\\nRobert Wilhite v. AT & T Mobility Corp., C.A. No. 1:10-5\\nSouthern District of Illinois\\nChristopher R. Havron v. AT & T, Inc., et al., C.A. No. 3:09-1040\\nNorthern District of Indiana\\nMartin Hoke v. AT & T Mobility, LLC, C.A. No. 2:10-6\\nSouthern District of Iowa\\nPenny Annette Wood v. AT & T Mobility, LLC, C.A. No. 4:09-577\\nDistrict of Kansas\\nChristopher Hendrix v. AT & T Mobility, LLC, C.A. No. 2:09-2658\\nEastern District of Kentucky\\nHeather Rahn v. AT & T Mobility, LLC, C.A. No. 2:09-218\\nWestern District of Louisiana\\nHeather Mazeitis v. AT & T Mobility, LLC, C.A. No. 6:09-2179\\nDistrict of Massachusetts\\nLesley Rock v. AT & T Mobility, LLC, C.A. No. 1:10-10069\\nEastern District of Michigan\\nKaren Wiand v. AT & T Mobility, LLC, C.A. No. 2:10-10045\\nKathy Johnson v. AT & T Mobility, LLC, C.A. No. 2:10-10064\\nSouthern District of Mississippi\\nMichael Bosarge, et al. v. AT & T Mobility, LLC, C.A. No. 3:10-5\\nWestern District of Missouri\\nSarah Pauley v. AT & T, Inc., et al., C.A. No. 2:09-4248\\nDistrict of Nebraska\\nMatthew Cranford v. AT & T, Inc., et al., C.A. No. 4:09-3243\\nDistrict of New Jersey\\nRonald Bendian v. AT & T, Inc., et al., C.A. No. 2:09-6100\\nSouthern District of New York\\nJonathan Macy v. AT & T, Inc., et al., C.A. No. 1:10-79\\nEastern District of North Carolina\\nAdrienne M. Fox v. AT & T Mobility, LLC, C.A. No. 5:10-26\\nSouthern District of Ohio\\nJohn W. Wallace, et al. v. AT & T Mobility, LLC, C.A. No. 1:09-928\\nWestern District of Oklahoma\\nJane F. Edmonds, et al. v. AT & T Mobility, LLC, C.A. No. 5:09-1379\\nWestern District of Pennsylvania\\nMeri Iannetti v. AT & T Mobility, LLC, C.A. No. 2:09-1684\\nDistrict of Rhode Island\\nJames Shirley v. AT & T Mobility, LLC, C.A. No. 1:09-636\\nDistrict of South Carolina\\nEric Bosse v. AT & T, Inc., et al., C.A. No. 2:09-3145\\nEastern District of Tennessee\\nRandall Shuptrine v. AT & T Mobility, LLC, C.A. No. 1:09-326\\nWestern District of Texas\\nHarvey Corn, et al. v. AT & T Mobility, LLC, C.A. No. 1:10-24\\nSCHEDULE B\\nMDL No. 2147-IN RE: AT&T MOBILITY WIRELESS DATA SERVICES SALES TAX LITIGATION\\nSouthern District of Texas\\nStephen T. Johnson v. AT & T Mobility, LLC, C.A. No. 4:09-4104\\nJudge Miller and Judge Trager did not participate in the disposition of this matter.\\n. The parties have notified the Panel that 23 additional related actions are pending as follows: two actions each in the Central District of California, the Southern District of California, and the District of Maryland; and one action each in the District of Arizona, the Northern District of California, the District of Connecticut, the Middle District of Florida, the Southern District of Florida, the Northern District of Illinois, the Eastern District of Louisiana, the Middle District of Louisiana, the District of Minnesota, the Eastern District of Missouri, the Western District of Missouri, the Western District of North Carolina, the Dis trict of Utah, the District of Vermont, the Eastern District of Virginia, the Western District of Washington, and the Eastern District of Wisconsin. These actions are potential tag-along actions. See Rules 7.4 and 7.5, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001).\"}"
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+"{\"id\": \"5756011\", \"name\": \"SECURITIES and EXCHANGE COMMISSION, Plaintiff, v. Mitchell S. DRUCKER and Ronald Drucker, Defendants, William Minerva, Relief Defendant\", \"name_abbreviation\": \"Securities & Exchange Commission v. Drucker\", \"decision_date\": \"2007-12-20\", \"docket_number\": \"No. 06 Civ. 1644(CM)\", \"first_page\": \"450\", \"last_page\": \"454\", \"citations\": \"528 F. Supp. 2d 450\", \"volume\": \"528\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States District Court for the Southern District of New York\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T21:04:52.421754+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SECURITIES and EXCHANGE COMMISSION, Plaintiff, v. Mitchell S. DRUCKER and Ronald Drucker, Defendants, William Minerva, Relief Defendant.\", \"head_matter\": \"SECURITIES and EXCHANGE COMMISSION, Plaintiff, v. Mitchell S. DRUCKER and Ronald Drucker, Defendants, William Minerva, Relief Defendant.\\nNo. 06 Civ. 1644(CM).\\nUnited States District Court, S.D. New York.\\nDec. 20, 2007.\\nAlexander Mircea Vasilescu, David Stoelting, Mark K. Schoenfeld, Amelia Anne Cottrell, New York City, for Plaintiff.\\nCharles George Eichinger, Charles G. Eichinger & Associates, P.C., Islandia, NY, for Defendants.\", \"word_count\": \"2047\", \"char_count\": \"12280\", \"text\": \"DECISION ON RELIEF\\nMcMAHON, District Judge.\\nThe SEC and counsel for defendants have presented the Court with competing versions of final judgments against the various defendants in this matter.\\nThe SEC seeks from the defendants Mitchell and Ronald Drucker, not only disgorgement, but civil penalties and an injunction that would restrain the Druckers from violating the securities laws in the future. As to Mitchell Drucker, the civil penalty sought is three times the amount of the losses avoided by all three defendants (including relief defendant Minerva). As to Ronald Drucker, the civil penalty sought is three times the amount of the losses he personally avoided. Finally, as against Mitchell Drucker, the SEC seeks an injunction barring him from serving as an officer and director of any publicly-held company.\\nThe defendants object that the SEC's computation of the amount to be disgorged is incorrect; object to the imposition of any civil penalties; and object to the entry of any injunction.\\nFor my rulings on these issues:\\n(I) AMOUNT OF DISGORGEMENT; The SEC calculates the amount to be disgorged by calculating the amount realized by each defendant via his insider or tippee sales and subtracting therefrom the amount he would have realized if he had sold on October 22, after the inside information concerning NBTY's earnings was disclosed. The defendants argue that the proper amount to be disgorged is far less than the SEC calculates, because the stock dropped significantly after the defendants sold but before the inside information was disclosed. This first drop was occasioned by a rumor in the marketplace (from Salomon Smith Barney) to the effect that the earnings of NBTY were going to fall short of prior projections. Once that rumor hit the market on October 19, 2001, the stock of NBTY dropped 19.6% (JPTO Stipulated Fact No. 27). The Salomon Smith Barney rumor was confirmed in substantial part by the expedited press release from NBTY that came out after the market closed on October 19, 2001. The timing of the press release was directly related to the SSB rumor and the immediate impact it had on the market. The stock fell another 27.2% on the first day of trading after the press release came out (October 22). In defendants' view, the only disgorgeable amount is the difference between the price of the stock at the time the official earnings announcement came out and the price of the stock the following trading day \\u2014 27.2% rather than the full 41% that the stock fell between the time of the tainted trades and the time the market absorbed the bad news about NBTY's earnings.\\nI agree with the SEC's calculation of the amount to be disgorged. It is true that the price of the stock dropped several hours before NBTY made its earnings announcement \\u2014 indeed, the Salomon Smith Barney rumor caused NBTY to speed up the public release of the information. However, the jury necessarily found that Mitchell Drucker had obtained inside information about the earnings of NBTY before he began selling his and Minerva's stock on October 18, and before he telephoned his father and directed his father to sell NBTY stock, also on October 18. From the time Drucker acquired that inside information, he was barred from trading in, or causing anyone else to trade in, NBTY stock until such time as the information became public. Public announcements of adverse news are often preceded by rumors that start the downward movement of the stock price, but that does not insulate the insider from liability for the full amount of the price decrease that occurred after he traded illicitly. The entire episode consumed but a few hours \\u2014 not nearly a year, as was the case in SEC v. Patel, 61 F.3d 137 (2d Cir.1995) \\u2014 and the entire drop was connected to the news (first rumored, then confirmed) about the shortfall in NBTY's earnings. In Patel, the passage of a year between the tainted trades and public release of the inside information \\u2014 during which year the stock price of the company was in \\\"free fall\\\"\\u2014 meant that forces other than the inside information had affected the price of the stock. However, between October 18, when the Druckers made their illicit trades, and October 22, the only factor impacting the price of NBTY stock (according to the evidence in the record) was the earnings shortfall. It was his inside knowledge about that earnings shortfall that led Mitchell Drucker to trade for his own account and for Minerva's account, as well as to orchestrate trades by his father. Defendants are thus liable for every dime they realized from and after the time when Mitchell Drucker became aware of the inside information, which occurred (at the latest) early in the afternoon of October 18, 2001.\\n(2) MITCHELL DRUCKER'S LIABILITY: Much of defendants' counsel's letter is a plea for mercy on behalf of Mitchell Drucker. He will get no mercy from this court.\\nMitchell Drucker is a lawyer who betrayed the trust of his client (who also happened to be his employer) for his own benefit and for the benefit of his father and his best friend. He is liable not only for his own gains but for those realized by his tippees. SEC v. Warde, 151 F.3d 42, 49 (2d Cir.1998). The amount he must disgorge is the full amount realized by all three defendants: $138,174 for Mitchell Drucker, $51,116 for Ronald Drucker and $7,953 for William Minerva, plus prejudgment interest on the above amounts. The SEC calculates prejudgment interest through November 30 at $61,789.53 for Mitchell Drucker, $22,858 for Ronald Drucker and $3,556 for William Minerva; the Clerk of the Court should calculate prejudgment interest from December 1, 2007 through the date when judgment is finally entered. There is no persuasive reason why Drucker should not be liable for prejudgment interest; the fact that this case lingered for six years only means that he (and his father and his friend) had the use of their ill-gotten gains for a longer period of time than would otherwise have been the case.\\nThe total amount due from Mitchell Drucker by way of disgorgement will be $197,243 plus prejudgment interest. However, while Drucker is solely liable for disgorging his entire ill-gotten gain and for the prejudgment interest thereon, he is jointly and severally liable for the amounts to be disgorged by Ronald Drucker and Minerva. To the extent that those individuals disgorge the amounts they realized and interest on those amounts, Mitchell Drucker's disgorgement amount will be correspondingly reduced.\\nThe Court finds that Mitchell Drucker is liable for civil penalties in an amount equal to twice the sum of $197,243, or $394,486. In addition to betraying the trust of his client/employer, Mitchell Drucker (1) structured his trades on October 18 in the (vain) hope that they would not be noticed in the same way that a single sale of his entire block of NBTY stock would have been; (2) failed to cooperate with the NASD investigation into the trading in NBTY stock until his back was literally to the wall and he could no longer conceal his transgression, thereby misleading his employer and causing Harvey Kamil to give erroneous information to the NASD during the course of that investigation; and finally (3) committed perjury on the witness stand at the trial of this action. There is no reason to, exempt him from paying civil penalties; indeed, I believe that a substantial financial penalty is necessary to persuade Mitchell Drucker not to engage in this sort of conduct again. Drucker's conduct, contrary to the argument made by his fine attorney, was indeed egregious and continues to be egregious, and he must be punished for it. In reaching this conclusion, I completely ignore the SEC investigation from the 1990s into trading in American Ship Building, which the SEC continues to press, but which I find an unpersuasive reason to do anything to Mitchell Drucker.\\nFinally, the Court grants the SEC's request for a permanent injunction against Mitchell Drucker's further violation of the securities laws as well as an officer and director ban. Mitchell Drucker has yet to take responsibility for what he has done. Convinced as I am that Drucker perjured himself during the trial, I can hardly rely on his assurance that he has no intention of trading in securities in the future. Perhaps the prospect of coming before this court on a contempt motion will provide Mitchell Drucker with the necessary impetus to avoid future misconduct. Furthermore, I am convinced, by the brazenness of his misconduct and by his cocky refusal to own up to it, that this attor ney&emdash;who was supposed to be NBTY's \\\"policeman,\\\" and who demonstrated utter indifference to both the law and to his client&emdash;is not fit to participate in the governance of any public company.\\nIn the opinion of this court, Mitchell Drucker is lucky that he was not indicted for his illicit activity. Had he been convicted criminally, he would have gone to jail for several years and suffered the automatic loss of his law license. The penalty chosen by the Court for this civil violation is far from draconian, but anything less would be a slap on the wrist.\\n(3) RONALD DRUCKER'S LIABILITY: The SEC's primary reason for seeking the imposition of maximum civil penalties against Ronald Drucker appears to be that he was the subject of a prior SEC investigation, which did not result in the bringing of any charges against him. As I have already mentioned, I do not find that a particularly persuasive reason to impose penalties in this case. Nor am I in the habit of punishing individuals for exercising their Fifth Amendment rights, as Ronald Drucker did at the beginning of the American Ship Building investigation (and civil penalties are a form of punishment). The question here is whether Ronald Drucker should be liable for anything other than disgorgement of his ill-gotten gains plus prejudgment interest. Nothing in the record before me persuades me that he should be. Ronald Drucker was not a fiduciary; and while I believe that he intuited that his son was telling him to trade because of non-public adverse information about NBTY, he himself did not possess or pass on inside information. He is a tippee, and he should be liable to disgorge the amount he realized as a result of his acting on the illegal tip. No other financial penalty is in order. The SEC's tendency to conflate the Druckers does not disguise the fact that, while it makes a substantial case for imposing civil penalties against Mitchell, the facts that this court finds damning about the son have little or nothing to do with the father.\\nI am, however, persuaded that Ronald Drucker should be enjoined from committing further violations of the federal securities laws. Ronald Drucker, a former New York City detective, was aware that he was selling his shares and his son's shares on the basis of inside information. At the very least because of the American Shipbuilding episode, he was well aware that trading on inside information was against the law. Drucker's refusal to question his son's directive and his immediate acquiescence in it demonstrates a contempt for the law and persuades me that there is a reasonable likelihood of future violations absent an injunction. There is, however, no need for an officer or director bar against Ronald Drucker.\\n(3) LIABILITY OF WILLIAM MINERVA: Minerva is jointly and severally liable with Mitchell Drucker for the amount of his illicit gain plus interest. The SEC seeks no other penalty and none will be imposed.\\nThe SEC should submit final injunctions in accordance with this ruling for the Court's signature. Please have them to chambers no later than December 21 at noon.\\n. The Court came to the view that Mitchell Drucker was cocky about his misdeeds after observing him in court, both during his testimony and throughout the trial.\"}"
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+"{\"id\": \"5769540\", \"name\": \"UNITED STATES of America, Plaintiff-Appellee, v. Trinidad FLORES-SOTELO, a.k.a. Espinilla, a.k.a. Guicho, Defendant-Appellant\", \"name_abbreviation\": \"United States v. Flores-Sotelo\", \"decision_date\": \"2009-08-21\", \"docket_number\": \"No. 08-15436\", \"first_page\": \"404\", \"last_page\": \"411\", \"citations\": \"343 F. App'x 404\", \"volume\": \"343\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Eleventh Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T21:58:13.934639+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HULL, WILSON and PRYOR, Circuit Judges.\", \"parties\": \"UNITED STATES of America, Plaintiff-Appellee, v. Trinidad FLORES-SOTELO, a.k.a. Espinilla, a.k.a. Guicho, Defendant-Appellant.\", \"head_matter\": \"UNITED STATES of America, Plaintiff-Appellee, v. Trinidad FLORES-SOTELO, a.k.a. Espinilla, a.k.a. Guicho, Defendant-Appellant.\\nNo. 08-15436.\\nNon-Argument Calendar.\\nUnited States Court of Appeals, Eleventh Circuit.\\nAug. 21, 2009.\\nLynn Gitlin Fant, Waco, GA, for Appellant.\\nRyan Scott Ferber, Elizabeth Miriam Hathaway, John Andrew Horn, U.S. Attorney Office, Atlanta, GA, for Appellee.\\nBefore HULL, WILSON and PRYOR, Circuit Judges.\", \"word_count\": \"3125\", \"char_count\": \"20232\", \"text\": \"PER CURIAM:\\nTrinidad Flores-Sotelo appeals his 240-month sentences for conspiracy to possess with intent to distribute cocaine and methamphetamine, possession with intent to distribute cocaine, and conspiracy to launder money. After review, we affirm.\\nI. BACKGROUND\\nA. Guilty Plea Hearing\\nFlores-Sotelo, indicted with 31 codefen-dants, pled guilty to three counts: (1) conspiracy to possess with intent to distribute at least five kilograms of cocaine and 500 grams of methamphetamine, in violation of 21 U.S.C. \\u00a7 846 and 841(b)(l)(A)(ii) and (viii) and 18 U.S.C. \\u00a7 2; (2) possession with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. \\u00a7 841(a)(1) and (b)(l)(A)(ii) and 18 U.S.C. \\u00a7 2; and (3) conspiracy to launder money, in violation of 18 U.S.C. \\u00a7 1956(h).\\nAt Flores-Sotelo's guilty plea hearing, the district court asked the government to outline briefly the evidence it would present before a jury if the case went to trial. The government first stated that Flores-Sotelo provided in \\u00e9xcess of a million dollars in drug proceeds to a driver to Texas. The government then described Flores-Sotelo's role in the overall conspiracy and his use of a residence on St. James Place as a stash house, as follows:\\nThe organization \\u2014 or Mr. Flores-So-telo headed a particular cell of this organization and they would receive large loads of cocaine, often as much as 300 kilograms per load, via tractor-trailer. They would receive the tractor-trailer and unload the cocaine in a warehouse. They used multiple warehouses in the Atlanta area. They would then take the cocaine to a stash house.\\nAt least as of the time of his arrest October 12th, 2005, Mr. Flores-Sotelo used at least two stash houses, one on St. James Place and one on Rebecca Street, which are here in the Northern District of Georgia. They would take the cocaine from the warehouse to one of those houses and they would distribute them both here in the Atlanta area and to other areas, including the Car-olinas.\\nOn October 12th \\u2014 well, about a week prior to October 12th, Mr. Flores-Sotelo received a load of just over 300 kilograms of cocaine, a Schedule II controlled substance. They had not distributed, they were storing it at one of the stash houses when [Drug Enforcement Administration (\\\"DEA\\\") ] executed search warrants on October 12th, 2005\\nMr. Trinidad Flores-Sotelo possessed that cocaine. He did so with the intent to distribute and the drug proceeds that he would have subsequently obtained from the sale of cocaine and that he did obtain on earlier occasions would then be sent down to Texas for shipment into Mexico.\\nFlores-Sotelo's counsel stated that he and Flores-Sotelo \\\"would agree\\\" with \\\"the material aspects and the substantive aspects\\\" of the government's evidence proffer, but \\\"would disagree\\\" with \\\"the leadership allegations.\\\" Flores-Sotelo himself also stated that, other than the \\\"allegation of a leadership role,\\\" he agreed with the government's evidence proffer.\\nB. PSI's Offense Conduct\\nThe presentence investigation report (\\\"PSI\\\") detailed the relevant offense conduct. DEA agents in Georgia, Texas, California, New York, and Florida began investigating a Mexican-controlled drug trafficking organization that imported drugs into the United States. Agents investigated two cells of the organization that operated independently but were connected by the same source, a supplier identified as \\\"Tono.\\\" One cell was managed by the Defendant Flores-Sotelo and the other by Javier Alvarez-Lopez. Flores-Sotelo hired the DEA's confidential informant to transport drug trafficking proceeds from Flores-Sotelo in Atlanta to another location in Texas. DEA agents observed the confidential informant's delivery and searched the residence where the delivery was made. The agents seized approximately $4,500,000 in drug proceeds and a drug ledger indicating that Flores-Sotelo had delivered an additional $2,500,000 in drug proceeds from Atlanta during the previous weeks.\\nDuring the investigation, the DEA intercepted a number of Flores-Sotelo's telephone calls. The DEA overheard Flores-Sotelo discuss (1) the shipment, receipt, and disbursement of 100 kilograms of cocaine, (2) the receipt of a separate delivery of 114 kilograms of cocaine, and (3) the collection and delivery of $504,600 in drug proceeds, which the DEA obtained after observing Flores-Sotelo deliver a bag to a driver of a tractor trailer and after hearing Flores-Sotelo notify Tono that the delivery was complete.\\nThe DEA also intercepted phone calls between Flores-Sotelo and his girlfriend, Ana Rojas-Rea, where they discussed the disbursement of drug proceeds. Referring to a person who would come to their residence to retrieve drug proceeds, Flores-Sotelo instructed Rojas-Rea over the telephone to \\\"give Chilango 1,000 balls from the drawer where the stereo is.\\\" On another occasion, Flores-Sotelo spoke to Rojas-Rea about purchasing a new telephone because he used different telephone numbers as part of the drug conspiracy.\\nDEA agents also observed Flores-So-telo coming and going from a rental residence on St. James Place in Lawrenceville, Georgia. Agents searched that residence on October 12, 2005, and recovered 305 kilograms of cocaine.\\nDEA agents searched Flores-Sotelo and Rojas-Rea's residence and recovered numerous cellular telephones, $410,326 in cash, one kilogram of cocaine, three ounces of cocaine base, a small amount of marijuana, heat sealers, and currency counting machines. Agents also discovered a vehicle that was registered to Jesus Gonzalez-Diaz, who lived with Flores-Sotelo and was his driver. The vehicle was modified with a hidden compartment between the back seat and the trunk. According to the PSI, Flores-Sotelo directed the activities of Gonzalez-Diaz and Rojas-Rea but Flores-Sotelo himself operated at the direction of Tono.\\nC. Advisory Guidelines Calculation\\nIn determining Flores-Sotelo's base offense level, the PSI held him responsible for the 305 kilograms of cocaine found at the St. James Place residence and the three ounces of cocaine base and $410,326 that were found during the search of Flores-Sotelo's residence. Accordingly, the PSI set Flores-Sotelo's base offense level at 38, pursuant to U.S.S.G. \\u00a7 2Sl.l(a)(l). The PSI recommended (1) a two-level increase because he was convicted of a violation of 18 U.S.C. \\u00a7 1956, pursuant to \\u00a7 2S1.1(b)(2)(B), (2) a three-level increase for being the manager of a criminal activity that involved five or more participants or was otherwise extensive, pursuant to \\u00a7 3Bl.l(b), and (3) a three-level reduction for acceptance of responsibility, pursuant to \\u00a7 3El.l(a)-(b). The PSI noted that Flores-Sotelo did not qualify for safety-valve relief under \\u00a7 501.2(a) because he was a manager or supervisor and because he did not truthfully provide information to the government. With a total offense level of 40 and a criminal history category of I, Flores-Sotelo's advisory guidelines imprisonment range was 292 to 365 months.\\nD. Sentencing\\nFlores-Sotelo did not object to the PSI's factual recitations of the offense conduct. Rather, Flores-Sotelo objected only to three paragraphs in the PSI calculating his advisory guidelines range and recommending that (1) the 305 kilograms of cocaine from the St. James Place residence were attributable to him, (2) he should receive a three-level role enhancement for being a manager or supervisor, and (3) he was ineligible for safety-valve relief. In the PSI itself, the probation officer listed Flores-Sotelo's objections and responded that Flores-Sotelo (1) had a \\\"notable connection\\\" to the St. James Place residence because \\\"the defendant [Flores-Sotelo] and others established power for the St. James 'stash' house on April 20, 2005\\\"; (2) managed Rojas-Rea and the cell involved at least five participants; and (3) was not eligible for safety-valve relief because he was a manager or supervisor.\\nAt the beginning of the sentencing hearing, the district court adopted all of the PSI's factual findings and guidelines calculations except for the three paragraphs to which Flores-Sotelo objected. Flores-So-telo never challenged the accuracy of the information in the probation officer's responses to his objections. At sentencing, Flores-Sotelo argued that even if he had been seen at the St. James Place residence and had established power there in April 2005, this was insufficient to connect him to the 305 kilograms of cocaine at the St. James Place residence.\\nAfter hearing from counsel for the government and Flores-Sotelo, the district court overruled Flores-Sotelo's sentencing objections. First, the district court found that Flores-Sotelo had a \\\"notable connection\\\" to the St. James Place residence and specified that \\\"[o]ne of those notable connections\\\" was that Flores-Sotelo and others established power for the St. James Place residence in April 2005. Second, the district court found that the three-level managerial role enhancement applied because the evidence clearly established that (1) there were two cells involved in the drug conspiracy, one of which was headed by Flores-Sotelo, (2) the cell headed by Flores-Sotelo involved five participants who were identified by way of telephone surveillance, and (3) at the time of his arrest, Flores-Sotelo had drugs in his house. Third, the district court found that Flores-Sotelo was ineligible for safety-valve relief because of his role as a manager or supervisor and, alternatively, because the prosecutor did not believe that Flores-Sotelo was truthful during his debriefing.\\nThe district court stated that it had considered the Sentencing Guidelines, the 18 U.S.C. \\u00a7 3553(a) factors, the parties' oral arguments, and the facts and circumstances surrounding the conspiracy and the extent of Flores-Sotelo's involvement. The district court then sentenced Flores-Sotelo to 240 months' imprisonment on each of the three counts, to run concurrently. Thus, Flores-Sotelo received sentences below his advisory guidelines imprisonment range of 292 to 365 months.\\nII. DISCUSSION\\nOn appeal, Flores-Sotelo raises four sentencing issues. We review each in turn.\\nA. Attribution of the St. James Place Cocaine\\nFlores-Sotelo claims that the district court erred in attributing the 305 kilograms of cocaine seized from the St. James Place residence to him because there was insufficient evidence to tie him to the St. James Place residence.\\nWe disagree because the overall record adequately supports the district court's fact-finding that the St. James Place cocaine was attributable to Flores-Sotelo. As found by the district court, one of Flores-Sotelo's \\\"notable connections\\\" to the residence was that Flores-Sotelo and others established power for the St. James Place stash house on April 20, 2005. There is also the undisputed statement in the PSI that, during the investigation, agents had seen Flores-Sotelo at the St. James Place residence. Moreover, Flores-Sotelo pled guilty to being a key figure in a drug conspiracy. At his plea hearing, the government proffered that Flores-Sotelo and his drug ring used the St. James Place residence as a stash house and that Flores-Sotelo recently stashed just over 300 kilograms of cocaine there, where it was seized by police officers. In response, Flores-Sotelo and his lawyer stated that they substantially agreed with the government on all points except for the government's allegations of leadership. See United States v. Saunders, 318 F.3d 1257, 1271 n. 22 (11th Cir.2003) (\\\"[T]he findings of fact of the sentencing court may be based on evidence heard during trial, facts admitted by a defendant's plea of guilty, undisputed statements in the presentence report, or evidence presented at the sentencing hearing.\\\" (quotation marks omitted)). Given the overall record in this case, we cannot say the district court clearly erred in finding that the government met its burden of proving a sufficient link between Flores-Sotelo, a key figure in a drug ring, and the cocaine at St. James Place, one of the drug ring's stash houses. See United States v. Butler, 41 F.3d 1435, 1444 (11th Cir.1995) (stating that the government must establish the drug quantity by a preponderance of the evidence).\\nB. Manager or Supervisor Enhancement\\nFlores-Sotelo next argues that the district court erred by not sufficiently explaining the basis for its conclusion that he was the head of one of the two cells prosecuted and thus giving him a three-level enhancement under U.S.S.G. \\u00a7 3Bl.l(b) for being a manager or supervisor. Additionally, Flores-Sotelo claims that the government did not establish with specific evidence that he led a cell and that the PSI did not set forth a sufficient factual basis to support such a finding. Flores-Sotelo notes that he worked at the direction of Tono in Mexico.\\nUnder \\u00a7 3Bl.l(b), a three-level enhancement is appropriate where \\\"the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.\\\" U.S.S.G. \\u00a7 3Bl.l(b). To qualify for an enhancement under \\u00a7 3Bl.l(b), the defendant need only manage or supervise one other participant. See U.S.S.G. \\u00a7 3B1.1 cmt. n. 2.\\nThe district court did not clearly err in enhancing Flores-Sotelo's sentence for his role as a manager or supervisor. First, Flores-Sotelo's argument that the district court did not adequately explain its ruling is without merit, as the district court specifically stated that it based its decision on the facts set forth in the PSI.\\nNor was the district court's fact-finding clear error. The unobjected-to facts in Flores-Sotelo's PSI show that (1) Flores-Sotelo operated the Atlanta cell of a drug trafficking organization in which there were at least five participants: Flores-Sotelo, Rojas-Rea, Gonzalez-Diaz, Tono, and Chilango; (2) Gonzalez-Diaz was Flores-Sotelo's driver and worked at his direction; and (3) Rojas-Rea operated at Flores-Sotelo's direction, as shown by the recorded telephone conversation in which Flores-Sotelo directs Rojas-Rea to give drug proceeds to a person who would visit their residence.\\nFinally, Flores-Sotelo's argument that he worked at the direction of Tono is irrelevant. Having a subordinate role to another participant (Tono) does not preclude a participant from supervising or managing other participants (such as Gonzalez-Diaz or Rojas-Rea). United States v. Jones, 933 F.2d 1541, 1546-47 (11th Cir.1991).\\nC. Safety-Valve Determination\\nFlores-Sotelo next argues that the district court was required to make its own independent decision as to his truthfulness and erred in relying on the government's assessment of his truthfulness in determining that he was ineligible for safety-valve relief under \\u00a7 501.2(a). To be eligible for safety-valve relief, a defendant must, inter alia, \\\"truthfully provide[] to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan\\\" and not be \\\"an organizer, leader, manager, or supervisor of others in the offense.\\\" U.S.S.G. \\u00a7 501.2(a). In light of our conclusion that the district court did not err in determining that Flores-Sotelo was a manager or supervisor, the district court did not err in determining that he was ineligible for safety-valve relief for that reason alone. Accordingly, we need not decide whether the district court erred as to Flores-Sotelo's truthfulness in debriefing.\\nD. Substantive Reasonableness\\nFlores-Sotelo also argues that his below-the-guidelines sentences were unduly severe and violated 18 U.S.C. \\u00a7 3553 because they were substantially greater than necessary to achieve the goals of the Sentencing Reform Act. However, Flores-So-telo points to no specific reason why his sentences are unreasonable.\\nWe review the reasonableness of a sentence through a two-step process using a deferential abuse-of-discretion standard. United States v. Pugh, 515 F.3d 1179, 1189-90 (11th Cir.2008) (relying upon Gall v. United States, 552 U.S. 38, 45-47, 50-51, 128 S.Ct. 586, 594, 597, 169 L.Ed.2d 445 (2007)). First, we look at whether the district court committed any significant procedural error, such as miscalculating the advisory guidelines range, treating the guidelines range as mandatory, or failing to consider the \\u00a7 3553(a) factors. Id. at 1190. Second, we examine whether the sentence is substantively reasonable by considering the totality of the circumstances and evaluating whether the sentence achieves the sentencing purposes in \\u00a7 3553(a). Id. at 1190-91; United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).\\nHere, the district court did not abuse its discretion in imposing 240-month imprisonment sentences that were below his advisory guidelines range of 292 to 365 months. First, as previously discussed, the district court committed no procedural error in calculating Flores-Sotelo's advisory guidelines range. Moreover, before imposing Flores-Sotelo's sentences, the district court stated that it considered the advisory guidelines range and the \\u00a7 3553(a) factors. Flores-Sotelo offers no specific reason why his below-the-guidelines-range sentences are unreasonable, and, in any event, we discern none.\\nFor the foregoing reasons, we affirm Flores-Sotelo's 240-month sentences.\\nAFFIRMED.\\n. The PSI stated that Flores-Sotelo and Rojas-Rea lived on Rebecca Street, but it did not indicate clearly whether their Rebecca Street residence was the same location as the Rebecca Street stash house.\\n. We review a district court's determination of the drug quantity used to establish a defendant's base offense level for clear error. United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir.2000).\\n. At the sentencing hearing, the government proffered that, during debriefing, Flores-So-telo told the government that the St. James Place residence was one of the places the drugs were kept and that Tono in Mexico was mad at him for having 305 kilograms there with no one protecting it. Flores-Sotelo's counsel objected to the use of this statement. The government responded that Flores-Sotelo had opened the door by some of his arguments referencing the debriefing. The district court stated that it would not consider at all Flores-Sotelo's debriefing statements. There is no cross-appeal and we thus do not consider any statements by Flores-Sotelo in the debriefing. We also need not address the government's alternative argument that the district court's attribution of the 305 kilograms of cocaine from the St. James Place residence to Flores-Sotelo was harmless error.\\n. \\\"This Court has long and repeatedly held that a district court's determination of a defendant's role in the offense is a finding of fact to be reviewed only for clear error.\\\" United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).\\n. Facts not challenged in the PSI are deemed admitted as true. See United States v. Skelton, 400 F.3d 1325, 1330 (11th Cir.2005).\\nFlores-Sotelo relies on United States v. Williams, 527 F.3d 1235, 1248-49 (11th Cir. 2008), to argue that Rojas-Rea was a minor participant over whom he had an insignificant degree of control. However, Rojas-Rea's role was more than the de minimis role described in Williams because the unobject-ed-to facts in the PSI show that, unlike the appellant in Williams, Rojas-Rea was a knowing participant who kept drugs at her home, discussed the distribution of drug proceeds with Flores-Sotelo, and pled guilty to a charge related to the conspiracy.\\n. When reviewing a district court's safety-valve determination, we review for clear error a district court's factual determination and de novo the court's legal interpretation of the guidelines. United States v. Poyato, 454 F.3d 1295, 1297 (11th Cir.2006).\"}"
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+"{\"id\": \"58412\", \"name\": \"Mark LANE, Plaintiff, v. RANDOM HOUSE, INC., Defendant\", \"name_abbreviation\": \"Lane v. Random House, Inc.\", \"decision_date\": \"1995-01-26\", \"docket_number\": \"No. Civ.A. 93-2564 RCL\", \"first_page\": \"141\", \"last_page\": \"153\", \"citations\": \"985 F. Supp. 141\", \"volume\": \"985\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the District of Columbia\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T19:05:16.135823+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mark LANE, Plaintiff, v. RANDOM HOUSE, INC., Defendant.\", \"head_matter\": \"Mark LANE, Plaintiff, v. RANDOM HOUSE, INC., Defendant.\\nNo. Civ.A. 93-2564 RCL.\\nUnited States District Court, District of Columbia.\\nJan. 26, 1995.\\nMark L. Davidson, Washington, DC, for Plaintiff.\\nHenry S. Hoberman, Baker & Hostetler, Washington, DC, for Defendant.\", \"word_count\": \"6008\", \"char_count\": \"38026\", \"text\": \"MEMORANDUM OPINION\\nLAMBERTH, District Judge.\\nDefendant Random House, Inc. has moved for dismissal of Plaintiff Mark Lane's complaint pursuant to Fed.R.Civ.P. 12(b)(6). Alternatively, Random House has moved for summary judgment under Fed .R.Civ.P. 56. Upon consideration of the filings of counsel and the relevant law, Random House's motion for summary judgment is hereby GRANTED on all counts.\\nRandom House has also requested costs and attorneys' fees. As prevailing party, Random House is entitled to costs as specified by Fed.R.Civ.P. 54(d)(1) and Local Rule 214. The request for attorneys' fees is DENIED.\\nI. LEGAL STANDARD\\nBecause the parties have submitted evidence outside of the complaint, including copies of the disputed advertisement and book, the court will treat Random House's motion as one for summary judgment. Fed.R.Civ.P. 12(b)(6). Summary judgment is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. E.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551-52, 91 L.Ed.2d 265 (1986). Inferences drawn from the facts must be viewed in the light most favorable to the party opposing the motion. E.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1607, 26 L.Ed.2d 142 (1970). If summary judgment is to be denied, there must be evidence on which the jury could reasonably find for the plaintiff. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). But if the plaintiff \\\"fails to make a showing sufficient to establish the existence of an element essential to [his] case, and on which [he] will bear the burden of proof at trial,\\\" summary judgment may be granted. Celotex, 477 U.S. at 322,106 S.Ct. at 2551.\\nAs this case arises under the District Court's diversity jurisdiction, 28 U.S.C. \\u00a7 1332, the law of the District of Columbia governs. The Rules of Decision Act, and hence Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), do not strictly apply with respect to D.C. law; nonetheless, the court will apply D.C.'s substantive law for reasons of uniformity and respect for the D.C. Court of Appeals. Anchorage-Hynning & Co. v. Moringiello, 697 F.2d 356, 360-61 (D.C.Cir.1983).\\nBased upon these standards, the court concludes that summary judgment in favor of Random House is appropriate on all of Lane's claims.\\nII. FACTUAL BACKGROUND\\nThis is a libel case concerning an advertisement that appeared in The New York Times on two occasions in late August, 1993. The advertisement announced publication by Random House of Gerald Posner's Case Closed, a book supporting the Warren Commission's conclusion that Lee Harvey Oswald, acting alone, assassinated President John F. Kennedy. The theme of the book is captured near the bottom of the advertisement\\u2014\\\"ONE MAN. ONE GUN. ONE INESCAPABLE CONCLUSION.\\\"\\u2014followed by the promotional exhortation to \\\"READ: CASE CLOSED BY GERALD POSNER.\\\"\\nLane's objection is to the body of the advertisement where his photograph appears along with five other literati whose theories about the Kennedy assassination are well-known to American readers and filmgoers. Each photograph is accompanied by a direct quote; and each quote is contrary to the views espoused by Posner in his new book. Above the six photographs is the caption: \\\"GUILTY OF MISLEADING THE AMERICAN PUBLIC.\\\"\\nImmediately after the advertisement appeared, Lane protested to both The New York Times and Random House. His demand for a retraction was rejected. Random House indicated that it would not re-run the advertisement\\u2014but only because the prepublication promotional campaign for Posner's book was finished.\\nLane does not deny the quote attributed to him in the advertisement: \\\"There is no convincing evidence that Oswald fired a gun from the sixth-floor window of the Book Depository or anywhere else on the day of the assassination.\\\" Still, Lane argues that he was injured in two respects. First, he objects to the unauthorized use of his photograph, name and notoriety in promoting the sale of Case Closed. Second, he seeks damages for the disparagement of his integrity and candor arising from the perceived suggestion in the advertisement that he has been intellectually dishonest with the American people.\\nIII. ISSUES\\nThe first three counts alleged by Lane deal with misappropriation. Count one is infringement of right of publicity; i.e., violation of Lane's exclusive right to publicize and benefit from the value of his identity, reputation and work. Count two is misappropriation of celebrity; i.e., non-consensual use of Lane's name, likeness and reputation to promote and sell the book Case Closed. Count three is appropriation of personal identity; i.e., exploitation of Lane's identity and persona as the most prominent and recognizable Warren Commission critic.\\nThe second distinguishable claim by Lane is contained in his fourth count\\u2014the tort of false light. Lane claims that Random House sullied his reputation and disparaged his credibility by knowingly depicting him in a false light and thereby intentionally causing him mental anguish and emotional distress.\\nFinally, in count five, Lane claims defamation. According to Lane, Random House knew or could easily have determined that Lane had not been charged with nor convicted of fraud on the American public. Nevertheless, with actual malice or extreme recklessness, Random House twice published the offending advertisement. Because the falsity of the statement, \\\"GUILTY OF MISLEADING THE AMERICAN PUBLIC,\\\" was objectively determinable, and because the statement was likely to be believed as factual, Lane contends that he was defamed. The appellation \\\"GUILTY\\\" was untrue; Lane was neither charged with nor convicted of misleading his readers.\\nAs a result, Lane says he has not experienced the demand of previous years for his views and commentary; he has encountered increased difficulty in securing production for his other written works; and he anticipates reduced lecture bookings, fewer opportunities for publication, and diminished ability to attract significant clients for lucrative retainers. These concerns have caused Lane mental anguish and emotional distress. He places a $10 million price tag on these assorted grievances, in the form of actual, compensatory, presumed and punitive damages. Additionally, he requests attorneys' fees and costs.\\nRandom House, in its motion for summary judgment, advances these arguments: (1) the advertisement in question contains protected opinion rather than a verifiably false statement of fact; (2) the advertisement constitutes privileged fair commentary on Lane's conspiracy theory; (3) the \\\"newsworthiness\\\" and \\\"incidental use\\\" privileges bar liability for misappropriation, as does the First Amendment; and (4) Lane can not satisfy the standards for the tort of false light. Random House also requests attorneys' fees and costs.\\nThe court will consider separately Lane's major claims\\u2014misappropriation, false light and defamation\\u2014then briefly address the issue of attorneys' fees.\\nIV. MISAPPROPRIATION\\nLane's first three counts\\u2014infringement of right of publicity, misappropriation of celeb rity, and appropriation of personal identity\\u2014 are indistinguishable as a legal matter. They will be dealt with as a single cause of action for misappropriation.\\nConceding that an advertiser's purpose in using someone's identity is central, Lane argues that Random House has exploited his individuality by portraying him in an advertisement for mere commercial gain. See, e.g., Midler v. Ford Motor Co., 849 F.2d 460, 462 (9th Cir.1988) (unauthorized use of sound-alike voice is exploitation if not done for informative or literary purpose). According to Lane, his identity and likeness were misappropriated to promote a book not about him personally, but about conspiracy arguments in which he has been involved as a disputant. See Tellado v. Time-Life Books, Inc., 643 F.Supp. 904, 914 (D.N.J.1986) (plaintiffs picture used solely to hype product, not to depict history of Vietnam war).\\nThese arguments are without merit. Among the principal objectives of Case Closed, as set forth in the book's preface, is to resolve the \\\"arguments raised by leading conspiracy critics, such as Anthony Summers, Mark Lane, Jim Marrs, and others____\\\" Mark Lane is clearly more than a single combatant in a pervading conflict. He is one of the protagonists; without Lane and his cohorts, the controversy over the Kennedy assassination may well have been put to rest by the Warren Commission.\\nBecause Lane's picture and quotation are newsworthy and incidentally related to a protected speech product, they cannot form the basis for a successful misappropriation claim. Random House may invoke either the newsworthiness privilege or the incidental use privilege.\\nA. Newsworthiness Privilege\\nThe newsworthiness privilege applies to advertisements for books, films, and other publications concerning matters of public interest. A plaintiff cannot recover for misappropriation based upon the use of his identity or likeness in a newsworthy publication unless the use has \\\"no real relationship\\\" to the subject matter of the publication. Klein v. McGraw-Hill, Inc., 263 F.Supp. 919, 921 (D.D.C.1966) (quoting Dallesandro v. Henry Holt & Co., 4 A.D.2d 470, 166 N.Y.S.2d 805, 806 (Sup.Ct.1957)).\\nLane cannot seriously contend that the discussion of him in Case Closed is not newsworthy. Moreover, \\\"[i]t has always been considered a defense to a claim of invasion of privacy by publication . that the published matter complained of is of general public interest.\\\" Pearson v. Dodd, 410 F.2d 701, 703 (D.C.Cir.), cert. denied, 395 U.S. 947, 89 S.Ct. 2021, 23 L.Ed.2d 465 (1969). Nor can Lane credibly maintain that he has \\\"no real relationship\\\" to Posner's book. Lane has devoted much time and effort establishing himself as paladin of the conspiracists. It is too late for him to retreat to the sidelines as a means of shielding himself from criticism.\\nIn a case not unlike this one, the newsworthiness privilege was upheld as a defense against the unauthorized use of author Ayn Rand's name in a promotion of a book by another writer. The advertisement suggested that Rand would have approved of the ideas presented in the new book. But the court concluded that \\\"a comparison to another author is, of necessity, always newsworthy and of interest to the public, which must consider whether or not to purchase the book.\\\" Rand v. Hearst Corp., 31 A.D.2d 406, 298 N.Y.S.2d 405, 412 (Sup.Ct.1969), aff'd, 26 N.Y.2d 806, 309 N.Y.S.2d 348, 257 N.E.2d 895 (1970).\\nLane's position is even weaker than Rand's. Her name was appropriated to suggest that someone else's ideas might be compatible with her own. Lane's name was appropriated to suggest that his own writings, scrutinized in Posner's book, were themselves the raison d'etre for the book's publication.\\nTo discredit this rather unvarnished application of the newsworthiness privilege, Lane seeks refuge in commercial speech doctrine. Even if a critique of his book is deemed newsworthy, Lane contends that an advertisement comprising a critique of his book is entitled to a lesser degree of protection. However, \\\"it is a far-fetched contention that [a photograph] is used for purposes of trade merely because it is employed to illustrate a book dealing with the subject to which the plaintiff has made important contributions.\\\" Klein, 263 F.Supp. at 921.\\nThe court will re-visit the topic of commercial speech in Parts TV(B) and VI(C), infra. Meanwhile, it is important to note that the backdrop for this ease is \\\"a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks____\\\" New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720,11 L.Ed.2d 686 (1964).\\nWhile the newsworthiness privilege may not apply to an advertisement for a non-speech product, it does apply to advertisements for speech products\\u2014even those that propose a commercial transaction. Lane's theories about a pivotal and baffling public issue are manifestly newsworthy; serious analyses of his theories are derivatively newsworthy; and an advertisement promoting the sale of a book containing such analyses retains a newsworthiness immunity against a claim of misappropriation.\\nB. Incidental Use Privilege\\nThe second defense advanced by Random House against Lane's misappropriation charge is the \\\"incidental use\\\" privilege. Newsworthiness and incidental use are related privileges, but the latter focuses on the public nature of the activities referenced in the alleged misappropriation. A person's name or likeness \\\"is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities----\\\" Restatement (Second) of Torts \\u00a7 652C, cmt. d (1977).\\nIn opposition, Lane turns once again to his commercial speech paradigm. Commercial speech indicia, states Lane, are threefold: (1) a paid-for ad, that (2) refers to a specific product, and (3) is motivated by economic gain. When those ingredients are present, Lane's version of the First Amendment affords no immunity. Unauthorized commercial speech that exploits another's identity, persona or celebrity in advertising is not protected.\\nBut this argument begs the question. The very nature of the incidental use privilege is to exclude certain material from the rubric of commercial speech. Because Lane's criteria for identifying when the commercial speech doctrine is to be invoked are deficient, the court can dispense with his rationale without even deciding how much protection is accorded commercial speech. To be sure, the Random House advertisement is paid-for; it refers to a particular product; and it is motivated in part by economic gain. While all three of Lane's ingredients are present, they are not sufficient to conclude that the advertisement is commercial speech.\\n\\\"The fact that the defendant is engaged in the business of publication . out of which he makes or seeks to make a profit, is not enough to make the incidental publication a commercial use of name or likeness.\\\" Restatement (Second) of Torts \\u00a7 652C, cmt. d (1977); accord Ault v. Hustler Magazine, Inc., 860 F.2d 877, 883 (9th Cir.1988) (lampooning an anti-pornography activist is not misappropriation even if done to enhance a magazine's profits), cert. denied, 489 U.S. 1080, 109 S.Ct. 1532, 103 L.Ed.2d 837 (1989). \\\"It would be illogical to allow respondents to exhibit [speech products] but effectively preclude advance discussion or promotion of their lawful enterprise.\\\" Guglielmi v. Spelling-Goldberg Prods., 25 Cal.3d 860, 160 Cal. Rptr. 352, 603 P.2d 454, 462 (1979).\\nA similar conclusion was reached only a few months ago in a case that parallels this ease in virtuaBy every respect. The court granted defendants' motion for summary judgment in a lawsuit brought by Robert Groden, an author and lecturer on the Kennedy assassination. Groden was pictured in the same advertisement that Lane challenges here. Groden claimed commercial appropriation of his name and likeness under New York law and false advertising under the Lanham Act. Groden v. Random House, Inc., et al, No. 94 Civ. 1074 (S.D.N.Y. Aug. 22, 1994).\\n\\\"[T]he fact that the Advertisement uses plaintiffs name and photograph to indicate the nature of the contents of Case Closed \\u2014 namely, a critique of the work of the pictured conspiracy theorists\\u2014brings it within the ambit of the incidental use exception. See Namath v. Sports Illustrated, 48 A.D.2d 487, 371 N.Y.S.2d 10, 11-12 (1st Dept.1975) (use of plaintiffs photograph for purposes of soliciting subscriptions is an incidental use where photograph gave reader indication of contents of magazine), aff'd, 39 N.Y.2d 897, 386 N.Y.S.2d 397, 352 N.E.2d 584 (1976); Rand, 298 N.Y.S.2d at 410-12 (use of quotation from book review comparing book to work of renowned author on book jacket was incidental use because purpose of use was to inform public of nature of book being sold).\\\" Groden, at 6-7.\\n\\\"Had defendants merely used plaintiffs name in the Advertisement, that use would clearly fall within the incidental use exception under the above-cited precedents. The fact that the Advertisement also contained Groden's photograph, which defendants concede does not appear in the Book, cannot transform a privileged use into an unlawful use because the goal of the Advertisement\\u2014 to inform potential readers about the contents of the Book and induce them to purchase it\\u2014remains unchanged.\\\" Groden, at 8.\\nThis court concurs with the Southern District of New York. The incidental use privilege is applicable to the circumstances at issue in this case. Random House is not culpable for infringement of Lane's right of publicity, misappropriation of his celebrity, nor appropriation of his personal identity.\\nY. FALSE LIGHT\\nLane claims that Random House sullied his reputation and disparaged his credibility by knowingly depicting him in a false light and thereby intentionally causing him mental anguish and emotional distress. False light invasion of privacy is defined as follows:\\nOne who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if\\n(a) the false light in which the other was placed would be highly offensive to a reasonable person, and\\n(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.\\nRestatement (Second) of Torts \\u00a7 652E (1977).\\nThe second prong for false light\\u2014knowledge or reckless disregard of the falsity of the underlying statement\\u2014is the same \\\"actual malice\\\" requirement for a defamation action set forth in Sullivan, 376 U.S. at 279-80, 84 S.Ct. at 725-26. Whereas an action for defamation redresses damage to one's reputation, the tort of false light is intended to remedy mental distress from having been exposed to public view. \\\"Yet, truth or assertion of opinion are defenses in both causes of action.\\\" White v. Fraternal Order of Police, 909 F.2d 512, 518 (D.C.Cir. 1990) (citing Rinsley v. Brandt, 700 F.2d 1304, 1307 (10th Cir.1983)). Moreover, the same absolute and conditional privileges available to libel defendants may be invoked in defense of false light claims. See Restatement (Second) of Torts \\u00a7 652F, 652G (1977). As we shall see below, Random House has colorable defenses against defamation. By law, these defenses are valid against false light as well.\\nWith respect to the \\\"highly offensive\\\" prong of the standard, Random House correctly observes that challenging Lane's views by calling them \\\"misleading\\\" is hardly the repugnant conduct necessary to sustain a false light claim. Indeed, it lies comfortably within the boundaries of rough and tumble debate which should have been anticipated by Lane upon publication of his own contentious bestseller. \\\"Those who step into areas of public dispute, who choose the pleasures and distractions of controversy, must be willing to bear criticism, disparagement, and even wounding assessments.\\\" Ollman v. Evans, 750 F.2d 970, 993 (D.C.Cir.1984) (Bork, J., concurring), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985).\\nOf course, at this stage of the proceedings, the question the court must resolve is whether a fact-finder could rationally conclude that the aspersion to Lane is highly offensive. Moldea v. New York Times, 15 F.3d 1137, 1140 (D.C.Cir.) (Moldea I) (re hearing granted, reversed on other grounds, 22 F.3d 310 (D.C.Cir.) (Moldea II)), cert. denied, 513 U.S. 875, 115 S.Ct. 202, 130 L.Ed.2d 133 (1994). The standard is an objective one, based upon the reaction that a reasonable person would have if he or she were the subject of the Random House advertisement. Id.\\nLane entered the public forum by embroiling himself in one of the most factious debates of our time. It is quite simply untenable that someone espousing Lane's views would take umbrage at the rather reserved assessment that he misled the American public. \\\"It is only when there is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in [Lane's] position----\\\" Restatement of Torts (Second) \\u00a7 652E, cmt. c. Under Lane's lopsided rules of engagement, he gets his choice of weaponry and tactics; Random House must do battle unarmed and march openly in a straight line. A conspiracy theory warrior outfitted with Lane's acerbic tongue and pen should not expect immunity from an occasional, constrained chastisement.\\nRandom House, in publicizing its own book has publicized Lane's as well. In the process, Random House furnished a bibliography from which varying insights on the Kennedy assassination can be extracted and scrutinized, then accepted or rejected. The court is unwilling to substitute its perspective for that of an informed readership. If Lane is aggrieved as he claims, he should know that an already burdened judicial system cannot accommodate protestations of this sort.\\nLane's false light allegations are dismissed\\u2014both because the statement in the Random House advertisement does not objectively cross the \\\"highly offensive\\\" threshold, and for the reasons discussed below in connection with Lane's defamation claim.\\nVI. DEFAMATION\\nIn his fifth and last count, Lane claims defamation. According to Lane, Random House knew or could easily have determined that Lane had not been charged with nor convicted of misleading the American public. Nevertheless, with actual malice or extreme recklessness, Random House twice published the offending advertisement. Because the falsity of the charge was objectively determinable and likely to be believed as factual, Lane contends he was defamed.\\nThere is, however, a very real risk in sanctioning recovery for libel under these circumstances. Debate about one of our important historical events could be stifled by threats of costly litigation. As Random House remarked in their motion for summary judgment, \\\"To allow conspiracy theorists to haul book authors into court in an effort to punish written criticism is contrary to our tradition of arriving at truth through a robust exchange of views in the marketplace of ideas.\\\" Lane is certainly entitled to his beliefs; but it is not defamatory to criticize him. Books, editorials and talk shows are more appropriate forums than courts for this type of polemic.\\nLane is well aware of a judicial disposition in favor of open and unobstructed debate. In his failed libel action as attorney for Willis Carto's Liberty Lobby, Lane and his client were told by the court: \\\"Neither an organization nor a person who sallies forth to espouse a specific creed or conviction can resort to the courts to silence those who disagree with that viewpoint.\\\" Carto v. Buckley, 649 F.Supp. 502, 508 (S.D.N.Y.1986).\\nBoth common law and constitutional protections are available to Random House. Ordinarily, an elementary canon mandates that courts not address a constitutional question if there is another ground on which the ease can be decided. See, e.g., Syracuse Peace Council v. F.C.C., 867 F.2d 654, 657 (D.C.Cir.1989), cert. denied, 493 U.S. 1019, 110 S.Ct. 717, 107 L.Ed.2d 737 (1990) (citing Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-48, 56 S.Ct. 466, 481-83, 80 L.Ed. 688 (1936) (Brand\\u00e9is, J., concurring)). However, defamation is inextricably linked with First Amendment concerns. For that reason, courts frequently examine the constitutional implications of libel actions at the summary judgment stage. See, e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 3, 110 S.Ct. 2695, 2697, 111 L.Ed.2d 1 (1990); White, 909 F.2d at 523; Oilman, 750 F.2d at 991. \\\"In the First Amendment area, summary procedures are even more essential____The threat of being put to the defense of a lawsuit . may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself____\\\" Washington Post Co. v. Keogh, 365 F.2d 965, 968 (D.C.Cir.1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967).\\nAccordingly, the court will explore the First Amendment ramifications of Lane's complaint. Although the common law fair comment privilege might also be an adequate basis upon which to grant Random House's motion for summary judgment, the court's dismissal of Lane's defamation count is grounded primarily in the First Amendment. Still, as a preliminary matter, the fair comment privilege is worth a cursory review.\\nA. Fair Comment Privilege\\nThe common law privilege of fair comment applies where the reader is aware of the factual foundation for a comment and can therefore judge independently whether the comment is reasonable. Milkovich, 497 U.S. at 30 n. 7, 110 S.Ct. at 2712 n. 7, (Brennan, J., dissenting). Fair comments are not actionable in defamation \\\"[b]ecause the reader understands that such supported opinions represent the writer's interpretation of the facts presented, and because the reader is free to draw his or her own conclusions based upon those facts----\\\" Moldea I, 15 F.3d at 1144. In the District of Columbia, the fair comment privilege can be invoked even if the underlying facts are not included with the comment. Fisher v. Washington Post Co., 212 A.2d 335, 338 (D.C.1965) (relying on Sullivan v. Meyer, 141 F.2d 21 (D.C.Cir.), cert. denied, 322 U.S. 743, 64 S.Ct. 1145, 88 L.Ed. 1575.(1944)).\\nHere, application of the privilege is straightforward. Lane's direct quote is included in the Random House advertisement and the reader is urged to read Case Closed (or the works of any or all of the six conspiraeists) for a fuller explication of the competing viewpoints. The inclusion of the underlying facts, directly in the form of a quotation and indirectly in the form of a booklist, more than complies with this circuit's criteria for applying the fair comment privilege. See also, Potomac Valve and Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1290 (4th Cir.1987) (challenged statement not actionable because \\\"premises are explicit, and the reader is by no means required to share [defendant's] conclusion\\\").\\nB. First Amendment Protection\\nThe precepts governing the interrelationship between defamation and First Amendment jurisprudence were recently set forth in Milkovich, 497 U.S. at 18-21, 110 S.Ct. at 2705-07. To be defamatory, a statement must be \\\"objectively verifiable\\\" as true or false. Id. at 21, 110 S.Ct. at 2707. To insure room for \\\"imaginative expression\\\" and \\\"rhetorical hyperbole,\\\" statements are only actionable if they have an explicit or implicit factual foundation. Id. at 20, 110 S.Ct. at 2706. Full constitutional protection exists for rhetoric that, due to its loose, figurative tone cannot reasonably be interpreted as stating actual facts about an individual, and for imprecise statements that are not susceptible of being proved true or false. Id. at 20-21,110 S.Ct. at 2706-07.\\nThe Seventh Circuit expanded upon the Milkovich formulation. \\\"[I]f it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.\\\" Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir.1993) (citations omitted).\\n\\\"GUILTY OF MISLEADING THE AMERICAN PUBLIC,\\\" would seem the ideal prototype of a statement that conforms to the Milkovichr-Haynes model. It is rhetorical hyperbole; it does not state actual facts about an individual; it cannot be proven true or false. The statement in the Random House advertisement \\\"could not reasonably be interpreted as stating anything other than a subjective belief.\\\" Groden at 14. Gerald Posner's evaluation in Case Closed is that Lane misled the public. That evaluation cannot be objectively verified without resolving thirty years of controversy surrounding the Kennedy assassination. To the extent that Posner's opinion rests on underlying facts, those facts are lodged in his and Lane's books. Events discussed in the two books have resisted objective verification for more than three decades. Readers may believe one book, the other, or neither; but there is no indication that Lane's theories have acquired the imprimatur of received wisdom.\\nPrior to Milkovich, this circuit recognized a strict dichotomy in defamation actions between assertions of opinion and assertions of fact. See, e.g., Oilman, 750 F.2d at 971. Milkovich rejected this practice. Post-Milkovich cases held that opinions can be actionable if they imply a provably false fact. See, e.g., White, 909 F.2d at 522. Thus, the task is to \\\"determine as a threshold matter whether a challenged statement is capable of a defamatory meaning; and whether it is verifiable\\u2014that is, whether a plaintiff can prove that it is false.\\\" Moldea II, 22 F.3d at 316-17 (citing Moldea I, 15 F.3d at 1142-45). The burden of proving falsity rests squarely on the plaintiff. He or she must demonstrate either that the statement is factual and untrue, or an opinion based implicitly on facts that are untrue.\\nApplying these principles in a context not far removed from the dispute the court grapples with today, the D.C. Circuit concluded: \\\"[W]hen a reviewer offers commentary that is tied to the work being reviewed, and that is a supportable interpretation of the author's work, that interpretation does not present a verifiable issue of fact that can be actionable in defamation.\\\" Moldea II, 22 F.3d at 313. The context in Moldea II was a book review \\\"in which the allegedly libelous statements were evaluations quintessentially of a type readers expect to find in that genre.\\\" Id. at 315. It was Moldea's book at issue, not his character, reputation or competence as a journalist. While a bad review inevitably injures an author's reputation to some extent, \\\"criticism's long and impressive pedigree persuades us that, while a critic's latitude is not unlimited, he or she must be given the constitutional 'breathing space' appropriate to the genre.\\\" Id. (citing Sullivan, 376 U.S. at 272, 84 S.Ct. at 721).\\nLane insists that his case against Random House is not about who killed President Kennedy. Instead, Random House has accused Lane in no uncertain terms of being guilty of a public deceit, of duplicity and intellectual dishonesty. Random House implied that Lane has been exposed as a charlatan. Indeed, attests Lane, Random House's charges can be proven false; his veracity, integrity, intellectual honesty and candor can all be plumbed in a trial as a matter of fact.\\nIf Random House had said what Lane said it said, perhaps we would have a more perplexing case. Even then, it is difficult to imagine how the court could assess Lane's deceitfulness, veracity, etc. without examining the assassination itself. Reckless disregard for the truth might qualify Lane for some of Random House's unstated pejoratives; but the \\\"truth\\\" has remained camouflaged since 1963, notwithstanding protracted analysis and debate. In Milkovich terms, if the underlying facts are not \\\"objectively verifiable,\\\" the opinion based upon those facts is not actionable. 497 U.S. at 21, 110 S.Ct. at 2707. In White terms, \\\"[assertions of opinion on a matter of public concern . receive full constitutional protection if they do not contain a provably false factual connotation.\\\" 909 F.2d at 522. The challenged Random House statement has no provably false connotation, nor does it imply provable facts.\\nMoreover, Random House simply did not mention candor, integrity, duplicity, charlatanism or the other colorful terminology conjured up by Lane. The advertisement expressly said: \\\"guilty of misleading the American public.\\\" \\\"Guilty\\\" is defined as \\\"justly chargeable with or responsible for a usually grave breach of conduct.\\\" Webster's Ninth New Collegiate Dictionary 542 (1990). In this instance, the breach of conduct is misleading the public. \\\"Mislead\\\" is not synonymous with \\\"deceive.\\\" The latter implies \\\"imposing a false idea or belief,\\\" while the former is merely \\\"a leading astray that may or may not be intentional.\\\" Id. at 329 (emphasis added). Whether or not Lane has been exposed as a charlatan, one would be hard-pressed to pluck that insinuation from the comparatively bland charge in the Random House advertisement. \\\"Even the . assertion that appellants are 'blatantly misleading the public' . is subjective and imprecise, and therefore not capable of verification or refutation by means of objective proof.\\\" Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 728 n. 7 (1st Cir.), cert. denied, 504 U.S. 974, 112 S.Ct. 2942, 119 L.Ed.2d 567 (1992).\\nThe contested statement in the Random House advertisement reflects differing interpretations of the murky facts surrounding the Kennedy assassination. By \\\"expressing a point of view only . the challenged language is immune from liability.\\\" Phantom Touring, 953 F.2d at 729. Groden concurs: \\\"[Kjnown evidence concerning the Kennedy assassination and the extensive debate over the Warren Commission's findings demonstrate that the actual facts will never be verifiable to everyone's satisfaction. Thus, the statements in the advertisement are merely statements of Posner's argument or opinion____\\\" Groden at 14-15.\\nC. Commercial Speech Implications\\nLane complains that Random House's purpose in advertising the Posner book was purely commercial. In Central Hudson, the Supreme Court sanctioned regulation of commercial speech, applying a level of scrutiny less strict than that reserved for non-commercial political speech. Central Hudson Gas & Elec. Corp. v. Pub. Serv. Commn. of New York, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980). Ergo, even though the Kennedy assassination was an event of immense public importance and interest, an advertisement is of lower pedigree than political speech and therefore not entitled to full protection. Lane subscribes to the Central Hudson characterization: \\\"[M]any, if not most, products may be tied to public concerns----[But there] is no reason for providing similar constitutional protection when such statements are made only in the context of commercial transactions.\\\" Id. at 563 n. 5,100 S.Ct. at 2349 n. 5.\\nOn the other hand, the Supreme Court has also held that protected speech remains protected even if styled as a solicitation to purchase. \\\"[I]f the allegedly libelous statements would otherwise be constitutionally protected . they do not forfeit that protection because they were published in the form of a paid advertisement.\\\" Sullivan, 376 U.S. at 266, 84 S.Ct. at 718. \\\"[S]peech does not lose its First Amendment protection because money is spent to project it, as in a paid advertisement of one form or another.\\\" Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761, 96 S.Ct. 1817, 1825, 48 L.Ed.2d 346 (1976).\\nThe critical question is whether the promotional material relates to a speech product that is itself protected. \\\"[T]he mere fact that the statements appear in advertisements does not compel the conclusion that the statements are commercial.\\\" National Life Ins. Co. v. Phillips Publishing, Inc., 793 F.Supp. 627, 645 (D.Md.1992). \\\"Defendants' economic motivation . is not enough to turn the statements into commercial speech.\\\" Id. at 644. In the specific context of the Random House advertisement, the underlying product is a book. Accordingly, it is essential to identify and protect \\\"advertising which summarizes an argument or opinion contained in the book.\\\" Groden, at 13.\\nAs Random House fittingly observed, the challenged advertisement is not about laundry detergent; it cannot be divorced from the book Case Closed; and the book is protected speech. There are 19 references to Lane in Posner's book. Lane and the other conspiracy theorists are featured in the advertisement, in part, because Cose Closed dissects their theories in painstaking detail. The court finds no justification for categorizing the Random House advertisement as commercial speech, nor for diminishing the constitutional safeguards to which it is properly entitled.\\nVII. ATTORNEYS' FEES\\nRandom House has cited no applicable statutory-exception to the American rule that each party shall bear its own legal fees. None of the statutory exceptions known to the court seem applicable to this case. Nor has Random House documented behavior by Lane that might be considered sanetionable under 28 U.S.C. \\u00a7 1927, or under Fed.R.Civ. P. 11, 16(f), 26(g), 37 or 45(c). Absent such showing, the court has no basis upon which to grant Random House's request for attorneys' fees.\\nVIII. CONCLUSION\\nFor reasons more fully set forth above, the motion for summary judgment by defendant Random House is granted on all five counts. Costs shall be apportioned in accordance with Fed.R.Civ.P. 54(d)(1) and Local Rule 214. Random House's request for attorneys' fees is denied.\\nMark Lane might well profit from Jefferson's sage advice: \\\"I laid it down as a law to myself, to take no notice of the thousand calumnies issued against me, but to trust my character to my own conduct, and the good sense and candor of my fellow citizens.\\\" If nonetheless Lane is affronted by such minor provocations as the court addresses today, he may elect to minimize his exposure by opting for a lower public profile. More likely, having acknowledged that publicity is the lifeblood of his career, Lane will have to overcome his brittleness\\u2014or seek solace elsewhere than from this court.\"}"
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+"{\"id\": \"593697\", \"name\": \"MORSE DIESEL INTERNATIONAL, INC., d/b/a AMEC Construction Management, Inc., Plaintiff, v. The UNITED STATES, Defendant\", \"name_abbreviation\": \"Morse Diesel International, Inc. v. United States\", \"decision_date\": \"2005-07-15\", \"docket_number\": \"Nos. 99-279C, 99-529C, 99-530C, 00-531C, 03-1537C\", \"first_page\": \"801\", \"last_page\": \"806\", \"citations\": \"66 Fed. Cl. 801\", \"volume\": \"66\", \"reporter\": \"Federal Claims Reporter\", \"court\": \"United States Court of Federal Claims\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T19:45:43.171196+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MORSE DIESEL INTERNATIONAL, INC., d/b/a AMEC Construction Management, Inc., Plaintiff, v. The UNITED STATES, Defendant.\", \"head_matter\": \"MORSE DIESEL INTERNATIONAL, INC., d/b/a AMEC Construction Management, Inc., Plaintiff, v. The UNITED STATES, Defendant.\\nNos. 99-279C, 99-529C, 99-530C, 00-531C, 03-1537C.\\nUnited States Court of Federal Claims.\\nJuly 15, 2005.\\nCraig S. King, Arent Fox, PLLC, Washington, D.C., counsel for plaintiff.\\nDomenique Grace Kirchner, United States Department of Justice, Washington, D.C., counsel for defendant.\", \"word_count\": \"2860\", \"char_count\": \"18183\", \"text\": \"MEMORANDUM OPINION AND ORDER REGARDING THE TRANSFER OF GENERAL SERVICES ADMINISTRATION BOARD OF CONTRACT APPEALS NO. 16503 TO THE UNITED STATES COURT OF FEDERAL CLAIMS\\nBRADEN, Judge.\\nOn September 20, 2004, AMEC Construction Management, Inc. (\\\"ACMI\\\") filed an action at the General Services Administration Board of Contract Appeals, docketed as GSBCA No. 16503, that is related and collateral to Case No. 99-279C, Case No. 99-529C, Case No. 99-530C, Case No. 00-531C, and Case No. 03-1537C, pending in the United States Court of Federal Claims. For the reasons discussed herein, and with the consent of the Honorable Catherine B. Hyatt of the General Services Administration Board of Contract Appeals, the court has determined to order the transfer of GSBCA No. 16503 to the United States Court of Federal Claims, pursuant to the Contract Disputes Act, 41 U.S.C. \\u00a7 609(d).\\nFACTUAL BACKGROUND AND PROCEDURAL HISTORY\\nOn July 19, 1995, Morse Diesel, International, Inc. (\\\"MDI\\\") was awarded Contract No. GS09P95KTC0032 by the General Services Administration (\\\"GSA\\\") to construct the United States Courthouse and Federal Office Building in Sacramento. At that time, MDI was a subsidiary of and owned by AMEC, p.l.e., which is now a publicly held international \\\"support services\\\" company in the engineering and technical services, oil and gas, and project scheduling business, and is traded on the London Stock Exchange, with net operating assets at the close of 2004 of \\u00a3286.8 million and an operating profit of \\u00a3149.6 million. See AMEC, p.l.e. 2004 ANNUAL REPORT at 1, 25, 35.\\nOn May 5, 1999, MDI filed a Complaint in the United States Court of Federal Claims alleging a breach of contract and breach of obligation of good faith and fair dealing regarding Contract No. GS06P95GZC0501, Phase II of the construction of the Thomas F. Eagleton Federal Courthouse in St. Louis (\\\"Phase II of the St. Louis Courthouse\\\"). Since that time, four other related cases were initiated in the court and have been consolidated with this action, Case No. 99-279C. Subsequently, the United States (\\\"Government\\\") asserted seven counterclaims hereunder: the False Claims Act, 31 U.S.C. \\u00a7 3729(a)(1) and 31 U.S.C. \\u00a7 3729(a)(2); the Forfeiture of Fraudulent Claims Act, 28 U.S.C. \\u00a7 2514; the Anti-Kickback Act of 1986, 41 U.S.C. \\u00a7 51 et seq.; as well as under common law for breach of contract and the equitable doctrine of restitution.\\nBy early 2001, MDI was doing business as ACMI. On August 27, 2001, ACMI filed a certified claim with the relevant GSA Contracting Officer seeking $19,545,242 for increased costs of performance, plus contract receivables and remission of liquidated damages in the amount of $3,119,812. See Sept. 20, 2004 letter from Mr. Craig S. King, Esquire to Ms. Beatrice Jones, Clerk, General Services Administration Board of Contract Appeals, at 1, attached to November 24, 2004 Government Motion to Transfer and Consolidate. In addition, ACMI requested a final decision of subcontractor claims in the amount of $6,092,493.84. Id. Subsequently, ACMI filed two certified requests for a final decision on August 27, 2001. Id. On December 19, 2001, GSA informed ACMI that the certified claims were being audited. Id.\\nOn or about September 20, 2004, ACMI filed an action at the General Services Administration Board of Contract Appeals, docketed as GSBCA No. 16503, requesting that the GSA Contracting Officer's failure to act on ACMI's August 27, 2001 certified claim be deemed a denial, pursuant to 41 U.S.C. \\u00a7 605(c)(3). Id. at 2. As further explained in a Memorandum Opinion Regarding the Government's Anti-Kickback Act of 1986 Counterclaim in this action, issued to gether with this Memorandum Opinion and Order, as of September 20, 2004, the date of the docketing of GSBCA No. 16503, MDI and ACMI were no longer owned by AMEC, p.l.c. On or about March 11, 2004, MDI d/b/a ACMI was sold by AMEC, p.l.c. to Facchina-McGaughan LLC, a joint venture formed by Paul V. Faeehina, Sr. of LaPlata, Maryland and AS. McGaughan, Jr., the former head of ACMI's Southeastern Division, for a \\\"minimal\\\" amount. See http://www.amec.com/ news/mediareleasedetails.asp?pageid=34 & mediaID=881 at 1-2; see also http://www. southeast.construction.com/news/florida/ archive/0407.asp.\\nOn November 24, 2004, the Government filed a Motion to Transfer GSBCA No. 16503 to the United State Court of Federal Claims, pursuant to 41 U.S.C. \\u00a7 609(d). On December 5, 2005, MDI d/b/a ACMI filed an Opposition to the Government's Motion to Transfer and Consolidate. On April 18, 2005, the Government filed a Supplemental Brief in Opposition.\\nDISCUSSION\\nA. Jurisdiction.\\nThe United States Court of Federal Claims has \\\"jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under . the Contract Disputes Act of 1978 [41 U.S.C. \\u00a7 609(a) ], including a dispute concerning termination of a contract, rights in tangible or intangible property, compliance with cost accounting standards, and other nonmonetary disputes on which a decision of the contracting officer has been issued under section 6 of that Act.\\\" 28 U.S.C. \\u00a7 1491(a)(2); see Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1270 (Fed.Cir.1999) (holding that \\\"the Tucker Act grants the United States Court of Federal Claims jurisdiction to grant non-monetary relief in connection with contractor claims, including claims requesting an interpretation of contract terms.\\\").\\nSpecifically, the Contract Disputes Act, 41 U.S.C. \\u00a7 609(d), further provides:\\nIf two or more suits arising from one contract are filed in the United States Claims Court and one or more agency boards, for the convenience of parties or witnesses or in the interest of justice, the United States Claims Court may order the consolidation of such suits in that court or transfer any suits to or among the agency boards involved.\\nId.\\nOur supervisory court has accorded the United States Court of Federal Claims \\\"broad discretion\\\" in exercising its discretion to transfer and consolidate a suit from an agency board, pursuant to 41 U.S.C. \\u00a7 609(d). See Joseph Morton Co. v. United States, 757 F.2d 1273, 1280 (Fed.Cir.1985). Among the factors that the court should consider are: (1) whether the dispute before the board and the court concern the same contract; (2) whether the claims before the court and the board duplicate claims or have overlapping and related issues; (3) whether plaintiff initially chose to appeal its claims before a court or a board; (4) whether one forum or the other has already made significant progress on the claims; (5) whether concurrent resolution would result in an inefficient allocation of the court's, board's, or party's resources; (6) whether separate forums would reach inconsistent results. See Giuliani Contracting Co. v. United States, 21 Cl.Ct. 81, 83 (1990) (Rader, J.).\\nB. Standing.\\nSince the Government is a party to this action, Case No. 99-279C, as well as Case No. 99-529C, Case No. 99-530C, Case No. 00-531C, and Case No. 03-1537C, all pending in the United States Court of Federal Claims, wherein the Government has asserted defenses, as well as counterclaims in these actions, the Government has standing to request a transfer of a related case pending before a board to the United States Court of Federal Claims, pursuant to the Contract Disputes Act, 41 U.S.C. \\u00a7 609(d).\\nC. The Court's Resolution Of The Government's November 24, 2004 Motion To Transfer GSBCA No. 16503 To The United States Court Of Federal Claims And Consolidate.\\n1. The United States Court Of Federal Claims Currently Has Jurisdiction Over \\\"Two Or More Suits Arising From One Contract\\\" And The General Services Administration Board Of Contract Appeals Has Jurisdiction Over A Claim Concerning The Same Contract.\\nThe United States Court of Federal Claims has jurisdiction over Case No. 03-1537C, now consolidated with Case No. 99-279C, wherein the Government has asserted counterclaims in both cases against MDI d/b/a ACMI regarding Contract No. GS09P95KTC0032, the United States Courthouse and Federal Building in Sacramento. Therefore, the United States Court of Federal Claims has jurisdiction over \\\"two suits arising from one contract\\\" and the General Services Administration Board of Contract Appeals has jurisdiction over a claim involving the same contract.\\n2. The Claims Before The United States Court Of Federal Claims And The General Services Administration Board Of Contract Appeals Are Related.\\nFor the reasons previously discussed, the claims before the United States Court of Federal Claims in Case No. 03-1537C and Case No. 99-279C and the General Services Administration Board of Contract Appeals GSBCA No. 16503 concerning MDI d/b/a ACMI's performance on Contract No. GS09P95KTC0032 to construct the United States Courthouse and Federal Building in Sacramento are related.\\n3. Plaintiff First Filed Claims In The United States Court Of Federal Claims.\\nAs previously discussed, on May 5, 1999, July 29, 1999, September 1, 2000, and June 20, 2003, MDI or MDI d/b/a ACMI elected to bring five different actions in the United States Court of Federal Claims. ACMI did not file an appeal before the General Services Administration Board of Contract Appeals until September 20, 2004 \\u2014 and, after it had been sold.\\n4. The United States Court Of Federal Claims Has Made Significant Progress In The Final Adjudication Of These Cases.\\nThe United States Court of Federal Claims has made significant progress in the final adjudication of these claims, since all pending matters now are fully briefed and ripe for entry of a final judgment. In fact, the court has issued on this date a Memorandum Opinion Regarding the Government's Anti-Kickback Act of 1986 Counterclaim concerning several federal contracts, including Contract No. GS09P95KTC0032, the same contract subject to GSBCA No. 16503.\\n5. Concurrent Resolution Would Result In An Inefficient Allocation Of Resources.\\nSince the claims filed in the United States Court of Federal Claims and the General Services Administration Board of Contract Appeals are related, to permit the actions to be resolved in two different forums would require a duplication of efforts by the parties and resulting in an inefficient allocation of judicial resources.\\n6. Separate Forums Could Reach Inconsistent Results.\\nIt is possible that the United States Court of Federal Claims and the General Services Administration Board of Contract Appeals could reach inconsistent results regarding the legal issue of whether the GSA Contracting Officer's failure to act on ACMI's August 27, 2001 Certified Claim should be deemed a denial under 41 U.S.C. \\u00a7 605(c)(3). Transfer to the United States Court of Federal Claims, however, would assure a uniform adjudication of this predicate to the Government's breach of contract claims regarding Contract No. GS09P9SKTC0032.\\n7. Transfer Serves The Interest Of Justice.\\nSince the counterclaims in Case No. 99-279C and Case No. 03-1537C concern Contract No. GS09P95KTC0032 to construct the United States Courthouse and Federal Building in Sacramento and the claims in GSBCA No. 16503 also concern the same contract, the transfer of GSBCA No. 16503 should not be inconvenient to the parties or witnesses. Moreover, the Honorable Catherine B. Hyatt of the General Services Administration Board of Contract Appeals has consented to this transfer. Therefore, the transfer of GSBCA No. 16503 to the United States Court of Federal Claims serves the interest of justice.\\n8. Consolidation Is Premature.\\nWhen the General Services Administration Board of Contract Appeals transfers GSBCA No. 16503 to the Clerk of the United States' Court of Federal Claims and that matter is assigned a docket number, the court will consider the Government's November 24, 2004 Motion to Transfer and Consolidate under RCFC 42.1 and issue an Order, pursuant to RCFC 42(a). Until that time, however, consolidation is premature.\\nCONCLUSION\\nFor these reasons, GSBCA No. 16503 is hereby transferred to the United States Court of Federal Claims, pursuant to 41 U.S.C. \\u00a7 609(d). When the Clerk of the United States Court of Federal Claims assigns a docket number to this case, the court promptly will be notified so that an Order may be issued to consolidate that case with Case No. 99-279C, Case No. 99-529C, Case No. 99-530C, Case No. 00-531C, and Case No. 03-1537C.\\nIT IS SO ORDERED.\\n. On July 29, 1999, MDI filed a Complaint in Case No. 99-529C in the United States Court of Federal Claims for Declaratory Judgment and to Convert Termination for Default to Termination of Convenience of the Government regarding Contract No. GS06P95GZC0501, Phase II of the St. Louis Courthouse Project. On May 4, 2000, the Government filed an Amended Answer and Counterclaims, including claims asserted under the False Claims Act, 31 U.S.C. \\u00a7 3729(a)(2) and Forfeiture of Fraudulent Claims Act-Special Plea in Fraud, 28 U.S.C. \\u00a7 2514. On July 18, 2000, the Honorable Loren A. Smith entered an Order consolidating Case No. 99-529C with Case No. 99-279C.\\nOn July 29, 1999, MDI also filed a Complaint in Case No. 99-530C in the United States Court of Federal Claims for Reimbursement Costs in connection with Contract No. GS06P95GZC0501, Phase II of the St. Louis Courthouse Project. On May 4, 2000, the Government filed an Amended Answer and Counterclaims under the False Claims Act, 31 U.S.C. \\u00a7 3729(a)(2) and Forfeiture of Fraudulent Claims Act-Special Plea in Fraud, 28 U.S.C. \\u00a7 2514. On July 18, 2000, the Honorable Loren A. Smith entered an Order Consolidating Case No. 99-530C with Case No. 99-279C with Case No. 99-529C.\\nOn September 1, 2000, MDI filed a Complaint in Case No. 00-531C in the United States Court of Federal Claims seeking a claim for reimbursement arising from a May 2, 1996 agreement regarding Contract No. GS06P95GZC0501, Phase II of the St. Louis Courthouse Project. On December 18, 2000, the Government filed an Answer and Counterclaims. On January 11, 2002, the Honorable Loren A. Smith entered an Order consolidating Case No. 00-531C, Case No. 99-529C, and Case No. 99-530C with Case No. 99-279C.\\nOn June 20, 2003, ACMI \\u00ed/k/a MDI filed Case No. 03-1537C in the United States Court of Federal Claims to appeal a June 24, 2002 final decision of a GSA Contracting Officer denying ACMI's claim for a total contract price affecting ACMI's proof of convenience of termination costs under Contract No. GSA06P95GZC0501, Phase II of the St. Louis Courthouse Project. On November 21, 2003, the Government filed an Answer and Counterclaims regarding Contract No. GS06P95GZC0501, Phase II of the St. Louis Courthouse Project, as well as Contract No. GS06P94GYC0037 regarding Phase I of the St. Louis Courthouse Project and Contract No. GS09P95KTC0032 regarding the construction of the United States Courthouse and Federal Building in Sacramento, California, also the subject of GSBCA No. 16503, and Contract No. GS09P95KTC0010 regarding seismic and electrical upgrades of the United States Custom House in San Francisco.\\nAs a result of these four consolidations, Case No. 99-529C, Case No. 99-530C, Case No. 00-531C, and Case No. 03-1537C now are all consolidated under this docket, Case No. 99-279C.\\n. ACMI apparently is no longer claiming $135,000 of that amount, representing \\\"Estimated Consultant fees.\\\"\\n. The Honorable Randall R. Rader has been a Circuit Judge of the United States Court of Appeals for the Federal Circuit since 1990.\\n. The following are among the pleadings and memoranda that have been filed to date in the United States Court of Federal Claims: May 5, 1999 Complaint; July 23, 1999 Government Answer; November 8, 1999 Government Affirmative Defenses and Counterclaims; May 5, 2000 Government Additional Counterclaims (involving doorframes) and Special Plea in Fraud; January 10, 2001 MDI Answer to May 5, 2000 Government Counterclaims; May 10, 2001 Government (First) Amended Counterclaims; November 1, 2001 MDI Motion to Dismiss the Government's Seventh Counterclaim; November 20, 2001 (Second) Amended Counterclaims; December 7, 2001 Government Opposition to MDI's November 1, 2001 Motion to Dismiss and Motion for Partial Summary Judgment Regarding the Seventh Counterclaim together with Exhibits 1-19 thereto; December 7, 2001 Government Proposed Findings of Uncontroverted Fact; February 27, 2002 MDI Reply to Government's Opposition and Response to Partial Summary Judgment, together with Genuine Issues and MDI's Proposed Findings of Uncontro-verted Fact; March 18, 2002 MDI Answer to Government's (Second) Amended Counterclaims; August 21, 2002 MDI Sur-Reply and Exhibit A; July 9, 2002 Government Reply to MDI's February 27, 2002 Opposition, together with Appendix Exhibits 20-38; October 7, 2002 Government Sur-rebuttal and Opposition to MDI's Motion for Summary Judgment Regarding the Seventh Counterclaim, together with Exhibits 39-51; October 23, 2002 Government (Third) Amended Counterclaims; November 27, 2002 MDI Amended Answer to the Government's October 23, 2002 Amended Counter claim; September 5, 2003 MDI d/b/a ACMI Opposition to Government's Motion for Partial Summary Judgment and Response to Government's Proposed Findings of Uncontroverted Fact, together with three volumes of Exhibits; November 21, 2003 Government Answer and Counterclaim in Case No. 03-1537C; January 12, 2004 MDI d/b/a ACMI Answer to Government's November 21, 2003 Counterclaims; January 23, 2004 Government Reply Memorandum and Appendix Volume 7; January 23, 2004 MDI d/b/a ACMI Response to Government's Proposed Findings of Uncontroverted Fact; February 20, 2004 Transcript of Oral Argument; March 1, 2004 Supplemental Declaration of James Brogan; August 30, 2004 MDI d/b/a ACMI Supplemental Opposition; October 6, 2004 Government Response thereto.\"}"
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+"{\"id\": \"596977\", \"name\": \"UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis GARCIA DE LEON, Defendant-Appellant\", \"name_abbreviation\": \"United States v. De Leon\", \"decision_date\": \"2005-06-28\", \"docket_number\": \"No. 01-50420\", \"first_page\": \"965\", \"last_page\": \"967\", \"citations\": \"137 F. App'x 965\", \"volume\": \"137\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Ninth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T00:48:43.733414+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: O\\u2019SCANNLAIN and WARDLAW, Circuit Judges, and LOVELL, District Judge.\", \"parties\": \"UNITED STATES of America, Plaintiff\\u2014Appellee, v. Jose Luis GARCIA DE LEON, Defendant\\u2014Appellant.\", \"head_matter\": \"UNITED STATES of America, Plaintiff\\u2014Appellee, v. Jose Luis GARCIA DE LEON, Defendant\\u2014Appellant.\\nNo. 01-50420.\\nUnited States Court of Appeals, Ninth Circuit.\\nSubmitted May 4, 2005.\\nDecided June 28, 2005.\\nPeter A. Hernandez, Esq., United States Attorneys Office, Los Angeles, CA, for Plaintiff \\u2014 Appellee.\\nJerald L. Brainin, Los Angeles, CA, for Defendant \\u2014 Appellant.\\nBefore: O\\u2019SCANNLAIN and WARDLAW, Circuit Judges, and LOVELL, District Judge.\\nThis panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).\\nThe Honorable Charles C. Lovell, Senior United States District Judge for the District of Montana, sitting by designation.\", \"word_count\": \"693\", \"char_count\": \"4256\", \"text\": \"MEMORANDUM\\nJose Luis Garda De Le\\u00f3n (\\\"Garda\\\") appeals his conviction and sentence for conspiracy to transport illegal aliens, 8 U.S.C. \\u00a7 1324(a)(l)(A)(v)(I); transporting illegal aliens, 8 U.S.C. \\u00a7 1324(a)(1)(A)(ii); harboring illegal aliens, 8 U.S.C. \\u00a7 1324(a)(l)(A)(iii); bringing illegal aliens into the country for financial gain, 8 U.S.C. \\u00a7 1324(a)(2)(B)(ii); and hostage taking, 18 U.S.C. \\u00a7 1203(a). We have jurisdiction under 28 U.S.C. \\u00a7 1291. We affirm Garcia's conviction, but issue a \\\"limited remand\\\" pursuant to United States v. Ameline, 409 F.3d 1073, 1084 (9th Cir.2005) (en banc).\\nThe district court did not abuse its discretion in allowing Garcia's victims to testify about the abuse they suffered while being held hostage. As Garcia concedes, the evidence was relevant. See Fed. R.Evid. 401. The victims' testimony as to the physical and sexual abuse was probative of the issue of consent in the hostage taking charge and was necessary to provide the jury with a full narrative of what transpired in the Canoga Park apartment. See United States v. Hicks, 103 F.3d 837, 843-44 (9th Cir.1996) (finding that evidence of murder and rape was admissible in carjacking case because it related to elements of the offense and allowed the government to offer a coherent story to the jury). The evidence was also relevant to the infliction of bodily harm element in 8 U.S.C. \\u00a7 1324(a)(l)(B)(iii).\\nNor did the district court abuse its discretion in holding that the testimony was not unduly prejudicial, especially because the government was precluded from dwelling upon the details of the abuse. See Fed.R.Evid. 403; Old Chief v. United States, 519 U.S. 172, 182-83, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (giving the district court the discretion to weigh the probative value of evidence against any prejudice).\\nIt is undisputed that the district court properly instructed the jury on the elements of hostage taking. Although it is reversible error for the district court to refuse to give a theory of defense instruction when there is some foundation for the defense in the evidence, Garcia's proposed instruction was not directed at a theory of his defense but, as the district court concluded, merely a version of Garcia's closing argument. See United States v. Parker, 991 F.2d 1493, 1497 (9th Cir.1993) (district court need not give a proposed \\\"theory of defense\\\" instruction \\\"when it is simply a recitation of the facts told from the defendant's perspective\\\"); United States v. Yarbrough, 852 F.2d 1522, 1541-42 (9th Cir.1988) (district court need not give a proposed \\\"theory of defense\\\" instruction that merely duplicates the judge's proposed instructions on the burden of proof). Thus, the district court's formulation of the jury instructions is reviewed for abuse of discretion. Here, the district court did not abuse its \\\"substantial\\\" discretion in refusing to formulate the hostage taking instruction using the defendant's language. United States v. Hicks, 217 F.3d 1038, 1045 (9th Cir.2000).\\nGarcia challenges on appeal the sentencing enhancement the district court used to increase his sentence as error under United States v. Booker, \\u2014 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because Garcia did not challenge his sentence on Sixth Amendment grounds in the district court, we grant a \\\"limited remand\\\" pursuant to United States v. Ameline, 409 F.3d at 1084.\\nAFFIRMED IN PART AND REMANDED IN PART.\\nThis disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.\"}"
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+"{\"id\": \"6079129\", \"name\": \"In re William D. Willis\", \"name_abbreviation\": \"In re Willis\", \"decision_date\": \"1972-03-02\", \"docket_number\": \"No. 8641\", \"first_page\": \"822\", \"last_page\": \"827\", \"citations\": \"59 C.C.P.A. 822\", \"volume\": \"59\", \"reporter\": \"Court of Customs and Patent Appeals Reports\", \"court\": \"United States Court of Customs and Patent Appeals\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:33:30.042693+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Rich, Almond, Baldwin, Lane, Associate Judges, and Rosenstein,' Judge, \\u25a0 sitting by designation .\", \"parties\": \"In re William D. Willis\", \"head_matter\": \"455 F. 2d 1060; 172 USPQ 667\\nIn re William D. Willis\\n(No. 8641)\\nUnited States Court of Customs and Patent Appeals,\\nMarch 2, 1972\\nMarion O. Staves, attorney of record, for appellant.\\n$. Wm. Coehran for the Commissioner of Patents. Fred E. MeKelvey, of counsel.\\n[Oral argument February 7, 1972 by Mr. .Staves and Mr MeKelvey]\\nBefore Rich, Almond, Baldwin, Lane, Associate Judges, and Rosenstein,' Judge, \\u25a0 sitting by designation .\", \"word_count\": \"2329\", \"char_count\": \"14454\", \"text\": \"Almond, Judge.\\nThis is an appeal from the decision of the Patent Office Board of Appeals, adhered to on reconsideration, affirming the rejection' of claims 1-8 of appellant's application entitled \\\"Expanded Cross-Linked Polymers.\\\" No claims Rave been allowed.\\nThe invention relates to foamed, cross-linked epibalobydrin polymers having a uniform closed-cell structure, a density of from 8 to 80 lbs./cu.ft. (preferably 20-75 lbs./cu.ft.), and a percentage compressibility (determined with a one-pound weight on a square inch of sample) of 20-97%. The expanded polymers are disclosed as varying from spongelike to semirigid, and as retaining all of the desirable properties of the basic unexpanded poly(epihalohydrin)s from which they are prepared, including excellent swelling resistance to solvents and outstanding aging resistance.\\nClaim 1 is illustrative:\\n1.Expanded cross-linked poly (epilialoliydrin) of substantially uniform closed-cell structure, having a density of from about 8 pounds per cubic foot to about 75 pounds per cubic foot and a percentage compressibility of from about 20% to about 97%, said poly (epibalobydrin) having a weight average molecular weight of at least about 40,000.\\nDependent claims 2-8 add limitations indicating whether the poly-(epihalohydrin) is a homopolymer (claim 2) or a copolymer (claim 7), designating whether the homopolymer is amorphous (claim 3) or crystalline (claim 4), specifying the homopolymer as poly (epicliloro-hydrin) (claim 5) and the copolymer as being of epichlorohydrin and propylene oxide (claim 8). In addition, claim 6 limits the density to the preferred range of 20-75 lbs./cu.ft. Apparently, all the claims will stand or fall together.\\nThe references relied upon by the board are:\\nParry et al. (Parry). 2,739,134 Mar. 20, 1956\\nAase et al. (Aase)_ 2, 831, 820 Apr. 22, 1958\\nRobinson (1)_ 3,026,270 Mar. 20, 1962\\nRobinson (2)_ 3, 026, 305 Mar. 20, 1962\\nCarey et al. (Carey) 3,154,504 Oct. 27, 1964\\nAdditional references relied on by appellant are:\\nSnyder _ 2, 623, 033 Dee. 23, 1952\\nBreslow et al. (Breslow)- 3, 058, 944 Oct. 16, 1962\\nFeild et al. (Feild 1)_3, 211, 677 Oct. 12, 1965\\nRobinson (3)_3,211,678 Oct. 12, 1965\\nFeild et al. (Feild 2)_ 3,298, 975 Jan. 17, 1967\\nRobinson (1) and Robinson (3) disclose unexpanded, cross-linked epihalohydrin polymers which appellant readily admits are \\\"essentially the same polymers as described in the instant application.\\\"\\nCarey discloses foamed epoxy resins having a uniform closed-cell structure, a density of from 3 to 27 lbs./cu.ft., and compressive strengths varying from 50 to 550 lbs./sq.in. Carey states that foams produced according to his invention \\\"may be either substantially rigid or may be flexible\\\" and have been \\\"found to be compressible .to one-half to one-third [their] original volume.\\\"\\n\\u2022 Parry and Aase are also directed to cellular epoxy resins. The disclosed expanded polyepoxides are described in Parry as being- hard products of high strength and in Aase as being tough, durable and resilient.\\nOf the references cited by appellant, Feild (1), Feild (2.)-, and Robinson (3) relate to expanded polymers, while Snyder and Breslow disclose unexpanded polymers. Appellant cited these references to show that expanded polymer patents have issued even though- patents to the same unexpanded polymer were in existence. For example, Robinson (3) claims expanded copolyester resins, while the earliest patent to Snyder discloses unexpanded copolyesters.\\nThe examiner rejected all of the claims under 35 USC 103 as un-patenable over Robinson (1) or (2) in view of Carey, Aase, or Parry, reasoning that it would have been obvious to one of ordinary- skill in the art to foam the cross-linked epihalohydrin polymers of the' Robinson patents in view of the secondary references which show expanded epoxy resins. The board affirmed this rejection. In response to appellant's objection to the combination of the references, the board stated that it regarded the polymers of the secondary references as \\\"sufficiently analogous to the Robinson polymers to make the Examiner's combination of references proper.\\\"\\nThe examiner and the board also reasoned that the secondary references illustrate that foamed polymers in general are well known, and that, since there is no evidence of difficulty in foaming the polymers of the primary references, it would have been obvious to foam those polymers. The board refused to consider the art cited by appellant in his attempt to rebut this line of reasoning.\\nIn addition, the board, after reviewing the prosecution history- in the instant application and its parent application, made the following-observation :\\nWe have outlined the foregoing chronology of events because there appears to be no reason for appellant's separation of the presently appealed expanded cross-linked product claims from the claims of his Patent No. 3,287,287 other than his desire to obtain a patent on the claims which had been allowed in Serial No. 341,728, without regard for the rejected expanded cross-linked product claims. If a terminal disclaimer were regarded as significant in overcoming a double patenting rejection, then the record of the present application is deficient because of the lack of such terminal disclaimer. We mention these matters so that they will not be overlooked but, in view of our affirmance of tbe rejection wbicb tbe Examiner bas forwarded to us, we do not believe that any further action on our part is necessary.\\nAppellant contends that by taking this approach the board extracted a terminal disclaimer from him on threats of a double patenting rejection but without ever having made one, and that this was improper. Concerning the rejection (under 35 USC103) that was made, appellant submits that it is not sustainable for a number of reasons. Basically, it is appellant's position that the epihalohydrin polymers of the primary references and the epoxy resins of the secondary references have nothing in common and that the claimed foams are completely different from, and have desirable properties which one would not expect of, the foams of the secondary references. For these reasons, appellant believes that the claimed expanded epihalohydrin polymers would not have been obvious to one of ordinary skill in the art considering unexpanded epihalohydrin polymers in .view of foamed epoxy resins or foamed polymers in general.\\nAppellant also contends that the Patent Office has confused his product claims with process claims, has improperly used an obvious to try test, and has acted contrary to normal patent practice in holding that it is obvious per se to add a blowing agent to any polymeric composition. In support of the latter contention, appellant cited the above-mentioned art to show a pattern of normal Patent Office practice in granting patents to foamed polymers in the face of prior art patents showing the unexpanded polymers.\\nWhile we have held that an applicant has a right to have considered art which he makes of record, we do not think much weight can be given to the references cited by appellant here. What the Patent Office has [2] allowed in previous cases is not binding is not subsequent cases, especially when different factual situations are involved. In re Riddle, 58 CCPA 983, 438 F. 2d 618, 169 USPQ 45 (1971). At best, the cited references may show that the level of skill in some polymer aits was such that claims directed to foamed polymers were found patentable over prior art knowledge of the unfoamed polymers, but they have little relevance to issues presented here since different polymers are involved and different factual situations are presented.\\nAs we see it, there are two main issues here. The first is whether the claimed expanded polymers would have been obvious in view of the Eobinson patents and the general prior art knowledge of foaming polymers by adding a blowing agent (i.e., would it be obvious per se to foam any known polymer?). We consider this first since if answered in the affirmative, we need not look into the similarity or dissimilarity between the epoxy resins of tlie secondary references and the epihalo-hydrin polymers of the primary references because whatever the .secondary references show, they at least illustrate the fact that polymers in foam form are well known in the art. Secondly, the issue may be framed in terms of whether the claimed expanded polymers would \\\"have been obvious to one of ordinary skill in the art in view of the jRobinson patents showing unexpanded epihalohydrin polymers,- and the secondary references showing foamed epoxy resins. In that context, a comparison of epoxy resins and epihalohydrin polymers is necessary in order to decide if one skilled in the art would be led by the knowledge of foamed epoxy resins to prepare the claimed expanded \\u2022epihalohydrin polymers.\\nWe recently addressed ourselves to the first issue in In re Lewis, 58 CCPA 1270, 443 F. 2d 389, 170 USPQ 84 (1971), where we said:\\nBased on our combined observations, first, as laymen, of the increased eom-anercial uses of foamed plasties, and second, as judges, of the number of different \\u2022cases of this nature which we have been called upon to review in recent years, we .-might be inclined to accept the examiner's assertion that it would be obvious-, at 'least prima facie obvious, to expand any polymeric composition. His reasoning is understandable to us and appears flawless. Appellant has not really raised much of a dispute on this point.\\nIn Letois, we went on to find that the claimed process of foaming a \\\"known cross-linked polypropylene polymer would have been obvi\\u2022ous in view of prior art teachings of foaming cross-linked polyethylene polymers, and thus we found no need to comment further on the general proposition quoted above.\\nWe still might be inclined to find a claim directed broadly to a foam of a known polymer prima facie obvious in view of foaming art in general since apparently any polymeric composition will expand to \\u2022some extent upon adding a blowing agent. However, that is not the situation here because the claims call for a specific expanded polymer \\\"having a defined cell structure, density, and percentage compressibility. When such claims are involved, we think it cannot simply be said as a general proposition that it would have been obvious to add a \\\"blowing agent to the known unexpanded polymers and achieve the \\u2022 claimed expanded polymers. Father, we think that, in order to support :a rejection of -such claims, there must be some indication that those skilled in the art would have found it obvious not only to foam the particular polymers in question but also that he would have expected \\u2022and known how to get expanded products with the claimed properties .-and characteristics.\\nThis leads us to the second issue since the Patent Office did rely on three secondary references to show that polymers similar to poly-(epihalohydrin) s had previously been foamed and to show that the-claimed foam characteristics were, or could have been, attained. The key to this issue is whether the resins of the secondary references are-in fact sufficiently similar to the epihalohydrin polymers of the primary references to lead one of ordinary skill in the art to make the-suggested combination of prior art teachings. We think this is where-the rejection fails.\\nWhile polyepoxides, like poly (epichlorohydrin), are derived in part from epichlorohydi'in, that is where the similarity ends. Epoxy resins; usually are condensation reaction products of epichlorohydrin and a bisphenol, whereas epihalohydrin polymers are formed by addition-polymerization. Polyepoxides are generally liquid or semisolid having a relatively low molecular weight, while poly (epihalohydrin) s-are rubbery solids and have a relatively high molecular weight. There-are other differences which we could detail; however, we do not think that necessary here. Suffice it to say that we do not think one of ordinary skill in the art having knowledge of foamed epoxy resins; would have found it obvious to expand the epihalohydrin polymers-of Robinson. Epoxy resins and epihalohydrin polymers simply are-not close enough in their properties to indicate to one of ordinary skill in the art what types of foams would be achieved by expanding-epihalohydrin polymers. Therefore, the person skilled in the art would, not be led by the cited art dealing with epoxy foams to prepare the-claimed expanded poly (epihalohydrin) s.\\nFinally, we come to appellant's complaint that the board acted improperly in hinting that double patenting may exist without having actually set forth such a rejection. We do not see where we can or should do anything in that regard. It seems to us that such matters-must be resolved before the Patent Office or relief sought by other-forms of judicial process. See, e.g., Palisades Pageants, Inc. v. Miss America Pageant, 58 CCPA 1225, 442 F. 2d 1385, 169 USPQ 790 (1971). There having been no double patenting rejection and no actual \\\"decision\\\" in regard to one, we have nothing to review. We do - not review nonexistent decisions of the board. In re Borg, 55 CCPA 1021, 392 F. 2d 642, 157 USPQ 359 (1968); Dunlap & Co. v. Bettmann-Dunlap Co., 57 App. D.C. 351, 23 F. 2d 772 (1927).\\nFor the foregoing reasons, the rejection of claims 1-8 under 35-USC 103 as unpatentable over Robinson (1) or (2) in view of Carey,. Aase, or Parry cannot be sustained. Therefore, the decision of the-board is reversed.\\nSerial No. 662,577 filed August 23, 1967 as a continuation-in-part of serial No: 550,622 filed May 17, 1966, which in turn is a continuation of serial No. 341,728 filed January 31, 1964 (now patent No. 3,287,287), which is in turn a continuation-in-part of serial No. 261,189 filed February 26,1963.\\nSee, e.g., In re Thompson, 58 CCPA 966, 438 P. 2d 613, 169 USPQ 35 (1971).\\nIn a follow-up of tliat case, we affirmed the rejection of the product claims over essentially the same art. In re Lewis, 59 CCPA 744, 452 F. 2d 1057, 172 USPQ 238 (1972).\"}"
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+"{\"id\": \"6080655\", \"name\": \"In re Michlin\", \"name_abbreviation\": \"In re Michlin\", \"decision_date\": \"1958-06-24\", \"docket_number\": \"No. 6373\", \"first_page\": \"1028\", \"last_page\": \"1034\", \"citations\": \"45 C.C.P.A. 1028\", \"volume\": \"45\", \"reporter\": \"Court of Customs and Patent Appeals Reports\", \"court\": \"United States Court of Customs and Patent Appeals\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:42:24.876004+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Johnson, Chief Judge, and O\\u2019Connell, Worley, and Rich, Associate Judges\", \"parties\": \"In re Michlin\", \"head_matter\": \"256 F. 2d 317; 118 USPQ 353\\nIn re Michlin\\n(No. 6373)\\nUnited States Court of Customs and Patent Appeals,\\nJune 24, 1958\\nByman A. MicMin, pro se.\\nClarence W. Moore (David Kreider of counsel) for the Commissioner of Patents.\\n[Oral argument May 5, X9S8, by Mr. Miehlin and Mr. Kreider]\\nBefore Johnson, Chief Judge, and O\\u2019Connell, Worley, and Rich, Associate Judges\", \"word_count\": \"2225\", \"char_count\": \"13568\", \"text\": \"Woelet, Judge,\\ndelivered the opinion of the court;\\nThis is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the final rejection by the Primary Examiner of claims 94, 95, and 97 to 100, inclusive, of appellant's application for a patent on a method of and apparatus for producing luminescent images. 1STo claims were allowed.\\nWhile the notice of appeal also alleged error in the board's decision affirming the examiner's rejection of claim 96, that claim is not included in the record and is not mentioned in the statement of errors relied on in appellant's brief. Accordingly, the appeal as to claim 96 is regarded as having been withdrawn.\\nClaims 94, 97, and 99 are representative of the appealed claims and read:\\n94. The method for producing a luminescent image on a luminescent layer by a configuration of electric energies comprising the steps of irradiating the luminescent layer with luminescent excitation energy in radiant energy to store luminescent excitation energy therein; impacting electron energies on one side of the luminescent layer to impress the configuration of electric energies in potentials thereon, and applying an electric energy in a different potential to the opposite side of said one side of the luminescent layer to effect sufficient potential differences therebetween so as to effect a configuration of lines of electric forces through the luminescent layer, in accordance with the potentials of the impressed configuration of electric energies on one side and the potential of electric energy on the other side of the luminescent layer, to substantially effect a transmission of the configuration of electric energies through the luminescent layer to effect a luminescent image the light values of which are in image of said substantially transmitted configuration of electric energies.\\n97. In combination, a vacuum tube having means for impacting a target with an image in electron energies with the target comprising a first means for converting the impacting electron energies into a configuration of electric energies in potentials in image thereof and transmitting the configuration of electric energies in potentials therethrough; and a second means, suitably positioned from the first means, for applying electric energy in a potential effect potential differences to the first means; and a layer of phosphors interposed between the first and second means for transmitting the configuration of electric energies therethrough so that on impressing electric energies in sufficient differences in potentials on the first and second means there is effected potential differences sufficient to transmit the configuration of electric energies through the layer of phosphors to produce a luminescent image thereon in image of the transmitted configuration of electric energies.\\n99. In a vacuum tube having means for impacting a raster of electron energies on a target with said target consisting entirely of a layer means for converting the impacting electron energies into a configuration of electric energies and transmitting said configuration of electric energies therethrough; a conductance layer; a means for transmitting electric energy in a potential between the conductance layer and the outside of the vacuum tube; and a layer of phosphors interposed between said layers to transmit the configuration of electric energies therebetween.\\nThe sole reference relied on is the patent to\\nFerrant, 2,239.887, April 29, 1941.\\nWhile the examiner rejected the 'appealed claims on several grounds, his decision was affirmed by the board only so far as it was based on the Ferrant patent. Accordingly, no other ground of rejection will be considered here.\\nAppellant's application relates to television methods and apparatus of the kind in which an image is produced by impacting on a target a scanning electron beam which is modified in response to the image being received. As disclosed, a two-sided flat target is employed which is impacted on one side by the beam. Adjacent the other side of the target is a layer of electro-luminescent phosphors, and on the opposite side of the phosphor layer is a \\\"conductance\\\" layer. The latter layer has impressed on it an electrical potential differing from that of the target, so that there will be a flow of electricity between the target and conductance, through the phosphor layer, causing the phosphors to luminesce. The phosphors are 'also subjected, between scans, to short wavelength rays from a luminescent excitation energy source.\\nThe Ferrant patent discloses an apparatus in which a luminescent screen is scanned by a moving beam. The screen comprises front and rear conductive layers separated by a layer of phosphors. The front layer, which is impacted by the beam, is divided into a number of parts, each provided with a so-called Faraday cage or collector, and each portion is connected to a source of electrical potential different from that of the rear conductive layer. The phosphors are subjected, between scans, to a uniform source of light of proper wave length to irradiate them in the desired manner.\\nFerrant explains that it has been discovered that phosphors, \\\"when placed within an electric field during excitation, are caused to flash up as soon as the electric field is removed.\\\" Accordingly, he describes and claims an arrangement in which the electric charge is abruptly reduced at desired times during the scanning to produce luminescence.\\nFrom the foregoing, it is seen that appellant relies on the existence of a potential difference 'between opposite sides of the phosphor layer to produce luminescence, while Ferrant relies on the interruption of such a potential difference to produce the same result. It seems evident, therefore, that the two devices operate on different principles, and appellant's has the advantage of greater simplicity. It does not appear that Ferrant's teaching that an interruption of the charge across the phosphors would cause luminescence would suggest that the same result could be obtained by maintaining the charge. Under such circumstances, we are of the opinion that there are unobvious differences between the disclosures of appellant and Ferrant, even though, as pointed out by the board, appellant has not shown by comparative tests that he obtains results superior to those of Ferrant.\\nInvention may reside in the use of a simpler method or apparatus to obtain results similar to those previously obtainable by a more complex one. Chesapeake & C. Ry. Co. v. Kaltenbaeh et al., 95 F. 2d 201 (C. C. A. 4th Circuit), 37 USPQ 288.\\nIt remains to be determined, however, whether the claims define the differences in procedure and apparatus which bring about the results above mentioned. The board and the examiner were of the opinion the claims are readable on the Ferrant disclosure except, possibly, for statements of function or result which can 'be given no patentable significance.\\nClaims 94 and 95 are method claims, each of which includes the step of applying electric energy of different potentials to opposite sides of the luminescent layer, such potentials being defined in claim 94 as being sufficient \\\"to effect a configuration of lines of electric forces through the luminescent layer to substantially effect a transmission of the configuration of electric energy through the luminescent layer to effect a luminescent image.\\\" The examiner considered the quoted language to he indefinite and functional, but the board was of the opinion that sufficient manipulative steps are set forth to effect the function. Presumably, therefore, the board was of the opinion that the adjustment of the potentials to produce the claimed result was a routine matter. In re Fine, 44 C. C. P. A. (Patents) 746, 240 F. 2d 354, 112 USPQ 320.\\nIn our opinion the Ferrant patent does not disclose the application of different potentials in such a manner as to produce the results specified in claim 94. It is not the application, but the removal of the potentials in Ferrant which produces the desired luminescence. It is, of course, true that the potentials must be applied before they can be removed, but the only reasonable interpretation of claim 94 is that it is the presence of the potential difference which produces the specified result, and that is not the case in the Ferrant system. We therefore conclude that claim 94 defines a method which involves inventive differences over what is disclosed by Ferrant.\\nClaim 95 is similar to claim 94 and is regarded as patentable over the reference for reasons similar to those just given.\\nClaims 97 to 100, inclusive, are drawn to apparatus. Claim 97 recites a vacuum tube having (1) a means for impacting a target with an image in electron energies, (2) a target comprising means for converting such energies into a potential image and transmitting it therethrough, (3) a second means spaced from the first and having a potential different therefrom, and (4) a layer of phosphors between the first and second means. We agree with the examiner and the board that Ferrant fairly discloses each of the above means, as recited in claim 97. It is true, as pointed out by appellant, that there are specific differences between his structure and that of Ferrant, but those differences are not set forth in claim 97. As described by Fer-rant, his apparatus produces a potential image on the target which is transmitted through the target to the phosphors, thus satisfying the broad language of claim 97.\\nAfter recitation of the elements above referred to, claim 97 concludes with a functional statement beginning with \\\"so that,\\\" and setting forth certain features of the manner in which the device operates. It is well settled that patentability of apparatus claims must depend upon structural limitations and not upon statements of function. In re Stattmann, 32 C. C. P. A. (Patents) 813, 146 F. 2d 290, 64 USPQ 245, and In re Gregg, 44 C. C. P. A. (Patents) 904, 244 F. 2d 316, 113 USPQ 526.\\nWhile 35 U. S. C. 112 now provides that an element of a combination may be defined as a means for performing a specified func tion, it does not contemplate the allowance of a combination claim, solely on the basis of a final functional statement of the kind included in claim 97. In re Arbeit et al., 41 C. C. P. A. (Patents) 719, 206 F. 2d 947, 99 USPQ 123; In re Piazze et al., 43 C. C. P. A. (Patents) 812, 230 F. 2d 426, 109 USPQ 34; and In re Mason, 44 C. C. P. A. (Patents) 937, 244 F. 2d 733, 114 USPQ 127.\\nThe final functional statement of claim 97 is, in effect, a method limitation, suggesting that the apparatus may be operated in substantially the manner set forth in claims 94 and 95. The inventive concept defined in such operation is a method, rather than an apparatus, and will be protected by the allowance of claims 94 and 95.\\nClaim 98 is similar to claim 97, so far as the issues here are concerned, and we hold that it was properly rejected on the same grounds as claim 97.\\nClaim 99 is generally similar to claims 97 and 98, with the omission of the final functional statement. The target is referred to in claim 99 as \\\"consisting entirely of a layer means\\\" for converting and transmitting a configuration of electron energies^ That language, in our opinion, does not distinguish from what is shown by Ferrant, whose \\\"Faraday cages\\\" form a layer means within the meaning of claim 99. While Ferrant requires an external potential source and shows connections between such a source and his \\\"layer means,\\\" appellant's device also requires, for proper operation, a potential difference between that means and the \\\"conductance layer\\\" recited in claim 99. It does not appear that the target could, in either case, perform the stated function unless it were associated with other elements. Accordingly, the statement that the target consists entirely of a layer means does not present a patentable distinction over Ferrant.\\nThe foregoing remarks are generally applicable to claim 100, which is dependent on claim 99, and calls for an apparatus \\\"consisting entirely\\\" of the tube of claim 99 and a means for irradiating the phosphor layer with luminescent excitation energy in radiant energy. Ferrant's means for irradiating his phosphors with light of proper wave length correspond to the latter means.\\nThe statement that the apparatus consists entirely of specified elements is essentially a negative limitation which, in the combination claimed, does not define anything inventive over what is shown by Ferrant. The reference shows all the elements recited by claim 100, and the fact that it may also show additional elements for performing additional functions is of no patentable consequence. Appellant's invention over Ferrant does not reside in a mere omission of elements, but in a particular arrangement and/or method of using the elements which remain. The apparatus claims, in our opinion, do not sufficiently define the inventive feature and we agree with the Patent Office tribunals that they present nothing patentable over Ferrant.\\nThe decision of the board is modified, being reversed as to claims 94 and 95 and affirmed as to claims 97 to 100, inclusive.\"}"
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+"{\"id\": \"6087598\", \"name\": \"Appeal of SAMUEL GOSS\", \"name_abbreviation\": \"Appeal of Goss\", \"decision_date\": \"1926-09-15\", \"docket_number\": \"Docket No. 4760\", \"first_page\": \"821\", \"last_page\": \"822\", \"citations\": \"4 B.T.A. 821\", \"volume\": \"4\", \"reporter\": \"Reports of the United States Board of Tax Appeals\", \"court\": \"United States Board of Tax Appeals\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:46:49.477488+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Appeal of SAMUEL GOSS.\", \"head_matter\": \"Appeal of SAMUEL GOSS.\\nDocket No. 4760.\\nDecided September 15, 1926.\\nSamuel Goss pro se.\\nA. Gadder Maokay, Esq., for the Commissioner.\", \"word_count\": \"71\", \"char_count\": \"402\", \"text\": \"OPINION.\\nLittleton\\n: The decision of the question involved in this proceeding is governed by the opinion of the court in United States v. Robbins, 269 U. S. 315, and the decision of the Board in the Appeal of D. Cerruti, 4 B. T. A. 682.\\nJudgment for the Commissioner.\"}"
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+"{\"id\": \"6112208\", \"name\": \"HALL v. YAHOOLA RIVER MIN. CO.\", \"name_abbreviation\": \"Hall v. Yahoola River Min. Co.\", \"decision_date\": \"1873-03\", \"docket_number\": \"\", \"first_page\": \"284\", \"last_page\": \"286\", \"citations\": \"11 F. Cas. 284\", \"volume\": \"11\", \"reporter\": \"Federal Cases\", \"court\": \"United States Circuit Court for the Northern District of Georgia\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:32:18.184407+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WOODS, Circuit Judge, and ERS-KINE, District Judge.\", \"parties\": \"HALL v. YAHOOLA RIVER MIN. CO.\", \"head_matter\": \"Case No. 5,955.\\nHALL v. YAHOOLA RIVER MIN. CO.\\n[1 Woods, 544.]\\nCircuit Court, N. D. Georgia.\\nMarch Term, 1873.\\nExecution \\u2014 Claims bt Third Parties \\u2014 \\u201c Claim Law\\u201d of Georgia \\u2014 Jurisdiction of Federal Courts \\u2014 Practice.\\n1. The \\u201cclaim law\\u201d of Georgia, so far as the same applies to real estate, provides for equitable relief. It is therefore a remedy which cannot be administered in the federal courts, and is not prescribed to be used therein by the act of congress, approved June 1, 1872, entitled \\u201cAn act to further the administration of justice\\u201d (17 Stat. 197.1\\n2. In Georgia, when the United States marshal levies an execution against A., upon the real estate of B., and threatens to sell the same, B. must file his bill in equity to stop the sale, and cannot resort to the \\u201cclaim law1\\u2019 of the state for relief.\\nThis cause was submitted on the motion of the plaintiff, who was judgment creditor of the defendant, to dismiss a proceeding, under the claim law of Georgia, commenced by one Vandyke, who set up title to certain real estate levied on by the marshal as the property of defendant, by virtue of an execution issued in this case.\\nAmos T. Akerman, for motion.\\nC. Peeples, George Hillyer, and J. A. Wim-pey, contra.\\nBefore WOODS, Circuit Judge, and ERS-KINE, District Judge.\\n[Reported by Hon. William B. Woods, Circuit Judge, and here reprinted by permission.]\", \"word_count\": \"2039\", \"char_count\": \"11314\", \"text\": \"WOODS, Circuit Judge.\\nThe Code of Georgia provides that \\\"when a sheriff or other of-cer shall levy an execution on property claimed by a third person not party to such execution, such person shall make oath to such property and shall give bond to the sheriff or other officer, as the case may be, with good and sufficient security in a sum double the value of the property levied on, conditioned to pay the plaintiff in execution all damages which the jury, on the trial of the right of property, may assess against him, if it shall appear that said claim was made for the purpose of delay only, and that the said oath and bond, having been delivered to the sheriff or other officer making the levy, it shall be his duty to postpone the sale until otherwise ordered. If the person claiming the property shall desire the possession thereof, it shall be the duty of the levying officer to take a bond from the claimant in double the value of the property levied on, for the delivery of the property at the time and place of sale, provided the same shall be found subject to the execution, and such bond being delivered to the sheriff, it shall be his duty to leave the property in possession of the claimant When the execution is levied on personal property, it shall be the duty of the levying officer to return the same, together with the execution, to the next term of the court from which the execution issued, but if the execution be levied on real property, the levying officer must return the same with the execution and claim to the next term of the superior court of the county in which the land so levied on shall lie. The court to which the claim shall be returned shall cause the right of property to be decided on by a petit jury at the first term thereof, unless continued as other cases at common law, and the jury inay give the plaintiff in execution such damages against the claimant, not less than ten per cent., as may seem just, provided it is made to appear that the claim was made for delay only. Either party in claim cases may appeal as in cases at common law'.\\\" See Irwin's Code Ga. pp. 707-710, tit. 9. c. 1.\\nBy an act approved October 21, 1870, it was provided that \\\"when the claimant is unable to give bond, he may make an affidavit to the effect that he did not interpose the claim for delay; that he claimed title to the property in good faith; that he was advised and believed that his claim would be sustained, and that from poverty he was unable to give the bond as otherwise required by lav; and such amdavit, when delivered to the sheriff, shall suspend the sale in the same manner as if bond and security had been given. If the property levied on be personal and the plaintiff claimant unable to give a forthcoming bond, the plaintiff in execution may give such bond; and in that case the levying officer shall deliver the property to said plaintiff; and in the event the claimant is unable and the plaintiff in execution neglects or refuses to give said forthcoming bond, the claimant may apply to the ordinary and procure an order for the sale of the same; and said property shall be advertised and sold in the manner prescribed by the law, and the proceeds shall remain in the hands of the levying officer, subject to the order of the court upon the final hearing of the claim.\\\" Acts 1870, pp. 75, 76.\\nIn this state of the statute law an execution was issued on the 28th day of September, 1S72, out of the United States court for the northern district of Georgia, upon a judgment for $2,707, and costs theretofore recovered in that court by Frank W. Hall, against the defendant, the Yahoola River and Cane Creek Hydraulic. Hose Mining Company, and the marshal, on the 4th day of October, 1S72, levied the execution on certain lands and tenements as the property of the defendant company. Thereupon one M. H. Vandyke, claiming to be the owner of the property so levied on, filed with the marshal the oath and bond required by the above recited acts of the state of Georgia, and the marshal suspended the sale and returned the execution and claim to the court.\\nA motion is now made to dismiss the claim and to allow the marshal to proceed to sell the property levied on. The argument of the mover is that the claim law of the state of Georgia is not binding upon the United States courts, and is not adopted by the fifth section of the act of congress, approved June 1, 1872, entitled \\\"An act to further the administration of justice.\\\" That section declares \\\"that the practice, pleadings and forms and modes of proceeding in other than equity and admiralty causes in the circuit and district courts of the United States shall conform as near as may be to the practice, pleadings, forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding.\\\" 17 Stat. 197. It is obvious to remark that this section excludes from its operation \\\"equity and admiralty causes.\\\" The equity practice in the courts of the United States is not controlled by the legislation of the states or rules- of the state courts, but is prescribed by the supreme court. The distinction between law and equity as recognized in the constitution, and the principles and procedure which at the period of the formation of the constitution so clearly distinguished legal from equitable remedies have not thus far in our judicial history been unsettled by the blending of law and equity in the courts of the United States; they are still administered as distinct systems of remedial justice. Const. U. S. art. 3, \\u00a7 2.\\nIn Bennett v. Butterworth, 11 How. [52 U. S.] 674, the supreme court declares that \\\"although the forms of proceedings and practice in the state courts shall have been adopted in the circuit courts of the United States, yet the adoption of the state practice must not be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in the same suit,\\\" and in Thompson v. Railroad Companies, 6 Wall. [73 U. S.] 137, the same court says: \\\"The constitution of the United States and the acts of congress1 recognize and establish the distinction between law and equity. The remedies in the courts of the United States are at common law or in equity; not according to the practice of state courts, but according to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of these principles.\\\" So in Payne v. Hook, 7 Wall. [74 U. S.] 425, it is said that \\\"the equity jurisdiction conferred on the federal courts is the same that the high court of chancery in England possesses, is subject to neither limitation nor restraint by state legislation, and is uiform throughout the different states of the union.\\\" To the same effect are the following eases: Bodley v. Taylor, 5 Cranch [9 U. S.] 191; Watkins v. Holman, 16 Pet. [41 U. S.] 25; Smith v. McCann, 24 How. [65 U. S.] 398; Loring v. Downer [Case No. 8,513].\\nIt follows then from the terms of the 5th section of the act of June 1, 1872, and the authorities cited above, that if the relief sought by the claimant in this case is equitable relief, he cannot resort to the claim law of Georgia 'to secure it, for the mode of proceeding prescribed by that act is a legal and not an equitable proceeding. When a marshal or sheriff, having an execution in his hands against the property of A., levies it upon the real estate of B., the latter has both legal and equitable remedies. He may sue the officer, or he may bring ejectment after the sale by the officer to recover possession of his property. These are his remedies at law, but neither of these prevents a sale. His equitable remedy is to file his bill setting up his title, and praying an injunction against the officer to restrain him from proceeding to sell. Now when real estate is levied on, the claim proceeding of the Georgia law is in effect a proceeding in equity. Cox v. Mayor, etc., 17 Ga. 249; Colquitt v. Thomas, 8 Ga. 258; Williams v. Martin, 7 Ga. 380. There is no form of action known to the common law that could stay the sale, and without some statutory provision, the only method of restraining a sale would be by bill in equity. The Georgia claim law therefore, when real estate is levied on, is a substitute for a bill in equity, praying for injunction and relief. It secures equitable relief, prevents irreparable mischief, by a statutory process which provides for a trial jury. This is a mingling of law and equity not permitted by the constitution and laws of the United States. A party who desires to restrain a sale by the marshal of property levied on by him, and to assert his title thereto, has an equitable case, and must resort to the equity side of the court. As the property levied on in this case is real estate, we are of opinion that the claim law of the state is not applicable, and that the marshal must be ordered to sell, notwithstanding the filing of the affidavit and bond prescribed by the claim law. Where the property levied on is personal estate, this course of reasoning will not apply. In the case of personal property, there is a remedy at law that would prevent a sale and restore the property to the claimant, namely, the action of replevin. The claim law, therefore, when applied to personal property, may be considered as a substitute for the action of replevin, and is not open to the same objection as when real estate is the subject of the levy. Our conclusion, therefore, is that the claim law of this state can not apply when a levy is made upon real estate; but that it does apply to levies upon personal property. As the levy in this case was upon real property, an order may be entered dismissing the claim of Vandyke, and allowing the marshal to proceed with the sale of the property levied on.\"}"
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+"{\"id\": \"6131210\", \"name\": \"The CADMUS\", \"name_abbreviation\": \"The Cadmus\", \"decision_date\": \"1830-03\", \"docket_number\": \"\", \"first_page\": \"974\", \"last_page\": \"977\", \"citations\": \"4 F. Cas. 974\", \"volume\": \"4\", \"reporter\": \"Federal Cases\", \"court\": \"United States District Court for the Southern District of New York\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T19:28:59.868737+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The CADMUS.\", \"head_matter\": \"Case No. 2,280.\\nThe CADMUS.\\n[1 Blatchf. & H. 139.]\\nDistrict Court, S. D. New York.\\nMarch, 1830.\\nForfeiture of Seamen\\u2019s Wages \\u2014 Desertion\\u2014 Entry in Log-Book \\u2014 When Right to Wages Accrues.\\n1. Tlie 5th section of the act of congress of July 20th, 1790 (1 Stat. 133), designates the only ease in which a forfeiture of his wages by a seaman is peremptory, and is the only decree which the court can render.\\n[Cited in The Elizabeth Frith, Case No. 4.3G1; The Union, Id. 14,347; The John Martin, Id. 7,357.]\\n[See note to Case No. 2,282.]\\n2. What is a sufficient entry in the log-book to prove the desertion which works such forfeiture.\\n[Cited in The Lillian M. Vigus, Case No. 8,34G.]\\n[See note to Case No. 2,2S2.]\\n3. Where the only defence set up to a libel for wages is the desertion of the libellant, the court will not award a sum less than that due, because of misconduct not amounting to desertion.\\n[Cited in the Elizabeth Frith, Case No. 4,361; Granon v. Hartshorne, Id. 5,6S9.]\\n4. Where the defence is to the entirety of wages, because of criminal misconduct by the seaman, no ground is thereby afforded for claiming a diminution of wages, or an equitable set-off.\\n5. Where a seaman ships for a certain time, a discharge by the master, actual or constructive, entitles the seaman to sue for wages at once, though the stipulated time of service has not expired.\\n[Cited in The David Faust, Case No. 3,595; Bush v. The Alonzo, Id. 2,223.]\\n[C. Cited in Granon v. Hartshorne, Case No. 5,689, to the point that when a vessel reaches her port of final destination, and is safely moored at her berth, the voyage is terminated, and all sea service on board connected therewith.]\\nIn admiralty. This was a libel in rem [by Charles Matthews and others] for wages. The shipping articles were, \\u201cfrom the port \\u25a0of Boston to a port or ports in the West Indies, and back to a port or ports in the United States, for and during the term of six months from September 25th, 1829.\\u201d The vessel arrived at New-York on the 25th of December, 1829. The main defences set up on the hearing were, that the action was prematurely brought, the six months stipulated by the articles not having expired; and that the libellants were absent from the vessel, without leave, for more than 48 hours after her arrival at New-York, and had forfeited all wages by such desertion, under the provisions of the 5th section of the act \\u25a0of congress of July 20, 1790 (1 Stat. 133), which provides, that if any seaman who shall have subscribed the articles, shall absent himself from on board the ship without leave of the master or officer commanding on board, and the mate or other officer having charge of the log-book shall make an entry therein of his name on the day on which he shall so absent himself, if he returns within forty-eight hours he shall forfeit three days\\u2019 pay for every day\\u2019s absence, to be deducted out of his wages; if he is absent more than forty-eight hours at one time, he shall forfeit all the wages due him, and all his goods and chattels on board of the ship, or in any store where they may have been lodged at the time of the desertion, to the use of the owners of the ship, and shall, moreover, pay all damages. The following entries in the log-book were relied on to sustain the defence: \\u201cFriday, Dec. 25. \\u2014 Gave the crew liberty to go ashore, with strict orders that they must be on board early in the morning, to attend to their duty. Saturday, Dec. 26. \\u2014 Employed in getting everything in readiness for discharging cargo. John Smith and Charles Matthews have been absent from the vessel diming the day, without permission; employed two men to work in their place two hours and a quarter each. Sunday, Dec. 27. \\u2014 John Smith and Charles Matthews made their appearance this morning, and said they would not do any more work on board the vessel unless the law obliged them to. Monday, Dec. 28. \\u2014John Smith. Charles Matthews and Abraham Estrom were down this morning, and were asked if they would go to their duty; they said no! which I call a plump refusal. Three laborers employed for the day. Thursday, Dec. 31. \\u2014 Employed lumpers to discharge the cargo. . Seen nothing of the three men that left during the day; names mentioned before. 1830. Friday, January 1. \\u2014 Stevedores at work discharging cargo. John Smith, Charles Matthews and Abra-nam Estrom still absent from the vessel, and have not shown themselves (alongside) these two days past. Gave John Harrison and David Harrington permission to go ashore, to be on board early in the night. Saturday, January 2. \\u2014 John Harrison came on board this evening, having been absent during the day, and said \\u2018it was his intention to leave the vessel, that he had found a new ship,\\u2019 and went ashore again. Sunday, January 3. \\u2014 Charles Matthews, John Smith, Abraham Estrom and John Harrison still ashore. Monday. January 4. \\u2014 Employed a carpenter from shore to finish a job of work which John Harrison, the carpenter, had left unfinished; the four men mentioned before are still absent. Wednesday, January 6. \\u2014 John Harrison came on board and picked up some carpenter\\u2019s tools which had been in use. and went away with them, against my orders. Thursday. January 7. \\u2014 Charles [Matthews. John Smith. Abraham Estrom and John Harrison are still absent from the vessel without permission.\\u201d On the 6th of January the libellants were discharged by the master, and on the 9th this action was instituted pursuant to the statute, by summons, &c.\\nEdwin Burr, for libellants.\\nRobert Sedgwick, for claimants.\\n[Reported by Samuel Blatchford, Esq., and Francis Howland, Esq.]\\n[Reversed in Cadmus v. Matthews, Case No. 2.282 ]\", \"word_count\": \"3294\", \"char_count\": \"18703\", \"text\": \"BETTS, District Judge.\\nTbe whole amount of wages earned not having been paid, the defence to the action is put upon two grounds: (1) An absolute forfeiture of the wages; and (2) that no right of action existed at the time the suit was commenced. Admitting that the penalty of the act may be applied to a case of absence without leave in the port of destination and after the vessel has been moored, (which point is not now considered.) it seems to me that the specific proof required by the act to entitle the claimants to a forfeiture of wages is not supplied. The act provides, that if any seaman who has signed articles shall absent himself, without leave, and a proper entry shall be made thereof in the log-book, on the same day, &c., and the absence continues more than forty-eight hours at one time, he shall forfeit his wages, &c. It seems to me, that the act designates the only case in which a forfeiture of wages, eo nomine, must be inflicted by the court, and thus far qualifies the punishments awarded under the law maritime for various acts of mal-conduct on the part of sailors, that of desertion included. Judge Story, in his note to Abb. Shipp. (Ed. 1829) p. 4CS, sums up the effect of the decisions upon this provision of the statute. To lay a foundation for the forfeiture of wages, under the statute, the entry must strictly conform to the terms of the act. The absence must be stated to have been without leave, and to have continued more than forty-eight hours, and the entry must be made in the log-book on the day the mariner absents himself. No other proof will supply either of these \\u00f3missions. The de-fence on this point accordingly rests on the question, whether, in fact, the libellants were logged, as it is termed, on the same day they left the ship, and charged with absenting themselves without leave; and whether such entry was made forty-eight hours previous to their being dismissed by the master.\\nThose of the libellants who are charged with having deserted the vessel, and thus forfeited their wages, are Charles Matthews, Abraham Estrom and John Harrison. I thing the evidence produced does not make out the fact of desertion, according to the requirement of the statute. The only explicit entry affecting the libellants, is that of December 2fith in relation to Charles Matthews, and that of January 7th in relation to the three above named. The first entry may have been sufficient in form, but the succeeding entries show that Matthews did not continue absent forty-eight hours, and no more could be effected by this entry, if good proof, than a deduction of wages for the time of his absence. The last entry is deficient in one important requisite, as it does not purport to have been made on the same day the seamen absented themselves. It rehearses the fact that they were absent without permission, but would seem to have reference, as to two of them, to the entry of the 31st of December, to denote the time and manner of such absence. That entry is, that nothing had been seen of the three men who left during the day. The reference to the previous mention of their names may be sufficient to indicate, with all necessary certain'ty, Matthews and Estrom as those intended. The reading of the two entries then would be, that Charles Matthews and Abraham Estrom left the vessel during the 31st of December, and were still absent, without permission, on the 7th of January. This is not that positive and distinct assertion, by an entry made at the time of absence, which is demanded by the act and recognised by the decisions as requisite to fix a forfeiture of wages on the seaman, even if the terms \\\"without permission\\\" may avail the claimants the sa\\u00edne as the statutory phrase \\\"without leave.\\\" The entry was not made on the day the act was done, and does not assert that the libellants absented themselves without leave, but equally admits the construction that it was the continuation of the absence, and not its inception, that was without permission. The entry of the 6th of January, in respect to Harrison, is equivocal and insufficient in two respects: first, it is uncertain whether his simply going away, or his going away with the carpenter's tools, was against the orders of the mate; and, secondly, the log-book does not aver that he was absent without leave, but only without leave of the mate, even if the entry of his going against orders is to be taken as asserting that he went without leave. The proofs in such a case should show that the authority over the vessel and the men was, at the time, with the mate; otherwise, a special entry in this form would leave room for an implication that the saiior had leave of absence from some other officer. But. without pressing this criticism upon the terms of the entry, the entry is not in substance of a character to produce a forfeiture of wages. It does not purport to charge the man with absenting himself from the ship without leave, but with disobedience of the orders of the mate in going ashore. The mate may have forbidden his going, though he had previous leave from competent authority. The entry of the 7th of January, for the reasons before given,, is not sufficient to subject Harrison to a forfeiture of wages. The mate testifies, that on Wednesday, the Cth of January, at furthest, (and he is not certain but it might have been on Tuesday, the 5th,) the other two libellants offered to unload the cargo, but the master refused to receive them, or to have anything further to do with them. This act of the master, therefore, destroys, as to them, all the efficacy of the entries in the log subsequent to that day. There is cot, then, as against either of the libellants, proof that they were absent from the vessel without leave for forty-eight hours after being logged, even if the entry had been made in the manner required by law, and a forfeiture of wages cannot be enforced against them. As the claimants insist upon the enforcement of the inflexible punishment of a forfeiture of wages for the offence charged upon the crew, it is no more than meet that, in obtaining such penalty, they should, on their part, be held to conform their proof to the strictest letter of the law.\\nIt is unnecessary to consider how far the conduct of the libellants might subject them to punishment, by diminution of wages, for an infraction of the law maritime, because no equitable indemnity is sought by the owners for that cause. The whole defence is, that the libellants were guilty of the desertion which carried with it the penalty inflicted by the statute. It is not claimed in the answer that the libellants have, by disobedience of orders, unwarrantable absence from the ship, or neglect of duty, rendered themselves liable to make good the damages sustained by the claimants, or exposed themselves to such punishment as the court may, in its discretion, under the rules of the maritime law, in respect to acts of malfeasance or nonfeasance on the part of sailors, see fit to impose \\u2014 such as an adequate mulct or abstraction of wages, because of a breach of contract or an omission to perform the duties enjoined by law. On the contrary, an absolute forfeiture is insisted on, upon the ground that the statutory offence has been committed and that the statutory punishment must follow. I shall accordingly hold, upon this branch of the defence, that the necessary proof, as required by the statute, has not been produced on the part of the claimants, to subject the libellants to a forfeiture of wages. I am the more ready to exact a strict compliance, on the part of the master, with the rule prescribing the manner in which the entry of absence shall be made in order to be evidence of desertion, because it most manifestly appears that the seamen were on inquiry as to their rights, and had not wilfully abandoned the vessel with the design of desertion. They did not intend to leave her, unless they were legally acquitted of their agreement. If this will not entirely exonerate them under the maritime law, it may at least be rightfully regarded, in a court of admiralty, as mitigating the offence, and taking from it the character of wilful desertion. Abb. Shipp. (Ed. 1S29) 404. note. They presented themselves every day on board, and evinced no intention to commit a wilful violation of their contract or duties. The officers also seem to have impliedly acquiesced in the propriety of the seamen's proceedings, inasmuch as no steps were taken 10 enforce their obedience to the service asked of them.\\nThe other branch of the defence is, that no right of action existed at the time this suit was instituted. The period of service contracted for by the articles had not expired by lapse of time. The libellants contend, that the true meaning of the articles is, that the contract continued until the arrival of the vessel at her port of delivery in the United States; that she might make one or more ports before reaching that of her final delivery; but that the whole run must be accomplished within the period of six months. The claimants contend, that the term of service was to last for six months, and did not expire when the vessel reached the United States, or, if it did, that the libellants were bound to discharge the cargo, and could not prosecute for their wages until the expiration of ten days after the safe mooring and unlading of the vessel. The libellants also show a deviation from the voyage mentioned in the articles, to Maracaibo, on the Main, and claim that this absolved them from their agreement, and gave them a right to their discharge and pay on the entrance of the vessel into this port. The view I take of the evidence will render it unnecessary to discuss the meaning of the agreement in the articles, or to consider what effect a deviation like the one here set up might have upon the mariner's contract. Because, as it seems to me, the libellants show that they were discharged from the vessel after her arrival in this port. After such discharge, a mariner's connection with his vessel and his obligation under his contract are terminated, and he may at once recover wages then due. The libellants swear, that as soon as the vessel was made fast, the mate gave them leave to go ashore, making at the same time declarations which might well be taken as a discharge, if the proof of them were clear. This, however, is denied by the mate, and higher credit is to be given to his testimony, in this case, as to his own declarations. Still, the conduct of the master for several succeeding days, in not requiring the men to go to their duty, though they were in the habit of coming on board the vessel every day, might import that he understood they were discharged and meant they should so understand it There is room for doubt, however, whether the discharge was absolute, and one of which the libellants can avail themselves, previous to the Cth of January, when the captain sent them off, telling them he should have nothing more to do with them. This was but three days before the suit was commenced, and had the point of discharge been made a subject of controversy at the hearing, I should have felt disposed to direct further proofs to be taken Upon it. This point may have been fully litigated on showing cause before the magistrate, before issuing process against the vessel, and his decision may have been satisfactory to the parties, especially as it appears by the proofs that the cargo was discharged on the 2d of January, and that on the 12th, when the mate was examined, the brig was about to proceed to Boston. Although this point is open upon the pleadings, and the claimants are authorized to raise the objection and demand the judgment of the court upon it, yet the court may be satisfied with less evidence than if it had been the leading point in contestation before the magistrate on the summons, or on the hearing here.\\nNOTE [from original report]. This decree was reversed on appeal by the circuit court, in December, 1830. on two grounds, as it is understood: 1st. That the contract did not terminate with the arrival and discharge of the tessel at her last port of destination, but was for six months certain: 2d. That the statutory penalty of forfeiture applied to an unlawful absence of a seaman from his vessel for forty-eight hours, if proved according to the general ules of evidence.\\nWhen the contract is terminated, the right to wages becomes perfect in the' seamen. The contract need not end by the fulfillment of its terms. A discharge of the seamen by the master, or a constructive discharge by breaking up the voyage, will entitle them to demand payment of their wages. Abb. Shipp. (Ed. 1829) 442, note. The proofs satisfy me that the men were allowed to leave the service by the master, and, therefore, the defence that the right of action had not accrued when the suit was brought, cannot be maintained. Accordingly, I decree for wages and costs, with the usual reference to the clerk to ascertain the amount due, and report thereon to the court. Decree accordingly.\"}"
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+"{\"id\": \"6170508\", \"name\": \"Woolley v. Commissioner of Internal Revenue\", \"name_abbreviation\": \"Woolley v. Commissioner\", \"decision_date\": \"1941-12-15\", \"docket_number\": \"No. 743\", \"first_page\": \"693\", \"last_page\": \"693\", \"citations\": \"314 U.S. 693\", \"volume\": \"314\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T00:17:20.423154+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Justice Jackson took no part in the consideration and decision of this application.\", \"parties\": \"Woolley v. Commissioner of Internal Revenue.\", \"head_matter\": \"No. 743.\\nWoolley v. Commissioner of Internal Revenue.\\nDecember 15, 1941.\\nMr. Elden McFarland for petitioner. Solicitor General Fahy and Messrs. J. Louis Monarch and Harry Marselli for respondent.\", \"word_count\": \"59\", \"char_count\": \"380\", \"text\": \"Petition for writ of cer-tiorari to the Circuit Court of Appeals for the Second Circuit denied.\\nMr. Justice Jackson took no part in the consideration and decision of this application.\"}"
\ No newline at end of file
diff --git a/us/6276693.json b/us/6276693.json
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+"{\"id\": \"6276693\", \"name\": \"Hovsepian, aka Hughes v. Neff, Independent Executor of the Estate of Lummis, et al.\", \"name_abbreviation\": \"Hovsepian v. Neff\", \"decision_date\": \"1983-10-03\", \"docket_number\": \"No. 82-2020\", \"first_page\": \"824\", \"last_page\": \"824\", \"citations\": \"464 U.S. 824\", \"volume\": \"464\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T00:57:08.638301+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hovsepian, aka Hughes v. Neff, Independent Executor of the Estate of Lummis, et al.\", \"head_matter\": \"No. 82-2020.\\nHovsepian, aka Hughes v. Neff, Independent Executor of the Estate of Lummis, et al.\", \"word_count\": \"25\", \"char_count\": \"152\", \"text\": \"Ct. App. Tex., 14th Sup. Jud. Dist. Certiorari denied.\"}"
\ No newline at end of file
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+"{\"id\": \"6364436\", \"name\": \"Speed v. Goodner, a Minor, by her Guardian ad Litem, Hadley, et al.\", \"name_abbreviation\": \"Speed v. Goodner ex rel. Hadley\", \"decision_date\": \"1982-10-04\", \"docket_number\": \"No. 82-165\", \"first_page\": \"863\", \"last_page\": \"863\", \"citations\": \"459 U.S. 863\", \"volume\": \"459\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:37:53.680593+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Speed v. Goodner, a Minor, by her Guardian ad Litem, Hadley, et al.\", \"head_matter\": \"No. 82-165.\\nSpeed v. Goodner, a Minor, by her Guardian ad Litem, Hadley, et al.\", \"word_count\": \"20\", \"char_count\": \"114\", \"text\": \"Sup. Ct. Wash. Certiorari denied.\"}"
\ No newline at end of file
diff --git a/us/6468376.json b/us/6468376.json
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+"{\"id\": \"6468376\", \"name\": \"Rajababu KILARU, Plaintiff, v. Eydie V. WATTS et al., Defendants\", \"name_abbreviation\": \"Kilaru v. Watts\", \"decision_date\": \"1973-02-05\", \"docket_number\": \"No. 72-C-594\", \"first_page\": \"569\", \"last_page\": \"571\", \"citations\": \"59 F.R.D. 569\", \"volume\": \"59\", \"reporter\": \"Federal Rules Decisions\", \"court\": \"United States District Court for the Eastern District of Wisconsin\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:43:26.084075+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Rajababu KILARU, Plaintiff, v. Eydie V. WATTS et al., Defendants.\", \"head_matter\": \"Rajababu KILARU, Plaintiff, v. Eydie V. WATTS et al., Defendants.\\nNo. 72-C-594.\\nUnited States District Court, E. D. Wisconsin.\\nFeb. 5, 1973.\\nRichard Perry, and Schroeder, Gedlen, Riester & Moerke, by William J. Mulligan, Milwaukee, Wis., for plaintiff.\\nJames B. Brennan, City Atty. by Joseph H. McGinn, Deputy City Atty., Milwaukee, Wis., for defendants.\", \"word_count\": \"1023\", \"char_count\": \"6222\", \"text\": \"DECISION and ORDER\\nMYRON L. GORDON, District Judge.\\nThe defendants have moved to dismiss the complaint. In this action, the plaintiff demands monetary damages for the defendants' alleged rejection of his application for a civil service position because of the Milwaukee city service commission's rule regarding citizenship. An earlier action was dismissed by this court on grounds of abstention, 339 F.Supp. 1362.\\nThe motion to dismiss the present action is based on (1) the failure of the complaint to state a claim upon which relief can be granted, (2) mootness, (3) abstention, (4) failure to join the state attorney general, (5) laches, and (6) inability of the plaintiff to prove damages.\\nI believe that the complaint adequately states a claim under 42 U.S.C. \\u00a7 1983, is not rendered moot because the plaintiff has since become a citizen, and is not tainted by laches. Since no express challenge to the constitutionality of a statute or ordinance is presented in the instant complaint, there is no need to make the state attorney general a party under either Rule 19, Federal Rules of Civil Procedure or \\u00a7 269.56(11), Wis. Stats. The complaint asserts that there is no \\\"rational basis\\\" for the defendants' rules, but unconstitutionality is not affirmatively charged.\\nAlthough the doctrine of abstention was applied in connection with the dismissal of the earlier action, I am now satisfied that further abstention is not warranted. As previously noted, the present complaint does not challenge the constitutionality of either \\u00a7 63.25(1) (a), Wis.Stats, or of the relevant city ordinance. A formal claim for damages has been submitted to the city clerk of Milwaukee and rejected by him; thus, the restrictions of \\u00a7 62.25(1) (a), Wis.Stats., no longer operate as a legal bar to the plaintiff's recovery.\\nThere have been several recent decisions which very strongly suggest that the concept of narrowly protecting the public's wealth and resources for those persons who are citizens has been \\\"eroded to splinters\\\". Miranda v. Nelson, 351 F.Supp. 735 (D.Ariz., decided December 5, 1972). See Younus v. Shabat, 336 F. Supp. 1137 (N.D.Ill.1971), aff'd 7th Cir. order No. 72-1051, dated January 3, 1973. See also Faruki v. Rogers, 349 F.Supp. 723 (D.C.D.C.1972).\\nThere are other cases which cogently support the plaintiff's legal position that equal protection of the laws grants a resident alien, if he is otherwise qualified, the right to be considered for civil service standing. Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed. 2d 534 (1971); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Purdy & Fitzpatrick v. California, 71 Cal.2d 566, 79 Cal.Rptr. 77, 456 P.2d 645 (1969); and Takahashi v. Fish & Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948). In Graham at p. 371-372, 91 S.Ct. at p. 1852, the court said:\\n\\\"Under traditional equal protection principles, a State retains broad discretion to classify as long as its classification has a reasonable basis. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911); Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955); Morey v. Doud, 354 U.S. 457, 465, 77 S.Ct. 1344, 1350, 1 L.Ed.2d 1485 (1957); McGowan v. Maryland, 366 U.S. 420, 425-427, 81 S.Ct. 1101, 1106, 6 L.Ed.2d 393 (1961). This is so in 'the area of economics and social welfare.' Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). But the Court's decisions have established that classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a 'discrete and insular' minority (see United States v. Carolene Products Co., 304 U.S. 144, 152-153, n. 4, 58 S.Ct. 778, 783-784, 82 L.Ed. 1234 (1938)) for whom such heightened judicial solicitude is appropriate. Accordingly, it was said in Takahashi, 334 U.S., at 420, 68 S.Ct. [1138] at 1143, that 'the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.\\\"\\nIt follows that the defendants have a very heavy burden in demonstrating that a rational basis exists for the city's civil service rule III 6 4 insofar as it requires that an applicant \\\"shall be a citizen of the United States. . . .\\\"\\nThe most impressive contention of the defendants in connection with the instant motion is that relating to the plaintiff's alleged inability to prove that he has incurred any damages. The defendants note that the final selection of the successful applicant for the position of librarian II is a discretionary choice by the city librarian, made from a list containing the names of the three highest rated persons. \\u00a7 63.39 Wis.Stats.\\nThe defendants suggest that Mr. Kila-ru ' cannot demonstrate that he would have been hired even if he were able to establish that his application had been rejected by the defendants \\\"on the basis of noncitizenship\\\" (Complaint \\u00b6[ 13). The affidavit of James Springer, dated January 24, 1972, asserts that Mr. Kilaru ranked number 15 in an examination relating to the position of librarian I held in June, 1972. However, Mr. Kilaru's complaint relates to his being precluded from applying for appointment as Librarian II in early 1971.\\nThe defendants' arguments as to damages, if sustained, might ultimately limit the plaintiff's recovery to a mere nominal award, but they do not warrant dismissal of the claim. Thus, even if no substantial compensatory damages are proved, and even if punitive damages are not proved or are disallowed pursuant to \\u00a7 895.43(2), Wis.Stats., the plaintiff's complaint may not be dismissed on this motion.\\nTherefore, it is ordered that the defendants' motion to dismiss the complaint be and hereby is denied.\"}"
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+"{\"id\": \"6584562\", \"name\": \"Gallagher & Ascher Co. v. United States\", \"name_abbreviation\": \"Gallagher & Ascher Co. v. United States\", \"decision_date\": \"1969-05-01\", \"docket_number\": \"R.D. 11668; Entry No. 15752\", \"first_page\": \"947\", \"last_page\": \"948\", \"citations\": \"62 Cust. Ct. 947\", \"volume\": \"62\", \"reporter\": \"United States Customs Court Reports\", \"court\": \"United States Customs Court\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:02:39.592489+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Gallagher & Ascher Co. v. United States\", \"head_matter\": \"(R.D. 11668)\\nGallagher & Ascher Co. v. United States\\nEntry No. 15752.\\n(Decided on rehearing [not published.] May 1, 1969)\\nSchwarts & Lidstrom for the -plaintiff\\nWilliam D. KucJcelshaus, Assistant Attorney General, for the defendant.\", \"word_count\": \"365\", \"char_count\": \"2301\", \"text\": \"Ford, Judge:\\nThe proper basis for dutiable purposes of one Packetron High-Speed Continuous Motion Pouch Machine covered by the above appeal for a reappraisement is before the court for determination.\\nThe parties hereto have entered into a stipulation of fact wherein it has been agreed as follows:\\nIT IS HEREBY STIPULATED AND AGREED, subject to approval by the court:\\n1. The merchandise covered by this case consists of one Packetron High-Speed Continuous Motion Pouch Machine (less Nu-Roll Web Splicer), exported after February 27, 1958, the effective date of Section 2 of the Customs Simplification Act of 1956.\\n2. Said merchandise is not identified in the final list published by the Secretary of the Treasury in TD 54521, pursuant to said Customs Simplification Act of 1956.\\n8. At the time of exportation to the United States, the market value or price at which such or similar merchandise was freely sold or, in the absence of sales, offered for sale in the principal markets of the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, including the cost of all containers and coverings or whatever nature and all other expenses incidental to placing the merchandise in condition, packed ready for shipment to the United States, was Canadian $60,600 including American goods returned amounting to U.S. $923.50 and U.S. $1,725.65, plus engineering expenses amounting to Canadian $72,000.\\n4. This appeal is submitted upon this stipulation.\\nUpon the record before the court, I find and hold that export value, as that value is defined in section 402(b), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165, is the proper basis of value for the Packetron High-Speed Continuous Motion Pouch Machine and that said value is Canadian $60,600 less American goods returned amounting to United States $923.50 and United States $1,725.65, plus engineering expenses amounting to Canadian $72,000, packed.\\nJudgment will be entered accordingly.\"}"
\ No newline at end of file
diff --git a/us/670739.json b/us/670739.json
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index 0000000000000000000000000000000000000000..a043b6f7b4a62897a12737e042402c1690fda93c
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@@ -0,0 +1 @@
+"{\"id\": \"670739\", \"name\": \"Gjyliana BZHETAJ; Elis Bzhetaj, Petitioners, v. Alberto GONZALES, Attorney General Respondent\", \"name_abbreviation\": \"Bzhetaj v. Gonzales\", \"decision_date\": \"2005-08-10\", \"docket_number\": \"No. 04-3787\", \"first_page\": \"913\", \"last_page\": \"916\", \"citations\": \"142 F. App'x 913\", \"volume\": \"142\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Sixth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T00:04:30.774653+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MERRITT and DAUGHTREY, Circuit Judges, and PHILLIPS, District Judge.\", \"parties\": \"Gjyliana BZHETAJ; Elis Bzhetaj, Petitioners, v. Alberto GONZALES, Attorney General Respondent.\", \"head_matter\": \"Gjyliana BZHETAJ; Elis Bzhetaj, Petitioners, v. Alberto GONZALES, Attorney General Respondent.\\nNo. 04-3787.\\nUnited States Court of Appeals, Sixth Circuit.\\nAug. 10, 2005.\\nRichard A. Kulics, Birmingham, MI, for Petitioners.\\nJacqueline R. Dryden, Margaret J. Perry, Arthur L. Rabin, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.\\nBefore MERRITT and DAUGHTREY, Circuit Judges, and PHILLIPS, District Judge.\\nThe Honorable Thomas W. Phillips, United States District Judge for the Eastern District of Tennessee, sitting by designation.\", \"word_count\": \"1270\", \"char_count\": \"8134\", \"text\": \"PER CURIAM.\\nGjyliana Bzhetaj, an Albanian national, filed the instant petition to review the denial of her application for asylum and withholding of removal by the Board of Immigration Appeals. The immigration judge determined that Bzhetaj filed an untimely application, that she lacked credibility, and that she had failed to present sufficient proof of past persecution or danger of future harm. The Board of Immigration Appeals affirmed the immigration judge's order on the same grounds. Because the Board's determination of the timeliness of an application for asylum is unreviewable by this court and because the remainder of the Board's determinations are supported by substantial evidence, we must DENY Bzhetaj's petition.\\nPROCEDURAL AND FACTUAL HISTORY\\nOn September 30, 2000, petitioner Bzhetaj and her son, Elis Bzhetaj, both citizens of Albania, entered the United States at Chicago O'Hare International Airport using fraudulent passports. They were interviewed by officers of the Immigration and Naturalization Service, who initiated removal proceedings against them and referred them for a hearing with an immigration judge. Bzhetaj conceded removability and indicated that she would seek asylum, withholding of removal, and protection under Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). See 8 U.S.C. \\u00a7 1158(a)(1), 1231(b)(3).\\nBzhetaj's next hearing before the immigration judge was postponed three times until it was finally held on January 11, 2002. Bzhetaj filed her application for asylum and withholding of removal at this hearing, over a year after she entered the country. She named her son, Elis, as an ancillary beneficiary to the application. In her application, she claimed that her husband had been a member of the Albanian Democratic Party since 1992 and had been harassed by the governing Socialist Party, when police officers had stopped him in January 1998 and detained him for nine days in the city of Koplik. The police closed her husband's fuel station several times, she said, due to his political beliefs. She also claimed that someone shot at the fuel station in December 1999. Her husband left Albania for the United States in February 2000. She claimed that in June of that year, a man knocked on her window while she was sleeping, asked her to open the door, and, when she refused, threatened to kidnap her son. Together with her application, Bzhetaj provided her birth and marriage certificates and her son's birth certificate.\\nFollowing a hearing on January 23, 2003, the immigration judge issued an oral decision denying Bzhetaj's application. The immigration judge determined that Bzhetaj was ineligible for asylum for having filed her application more than one year after her entry into the country and having failed to establish exceptional circumstances to excuse the delay. Even if Bzhetaj were eligible, the immigration judge found, she lacked credibility due to her conflicting and gradually embellished versions of events. Finally, the immigration judge determined that Bzhetaj had failed to demonstrate that her problems in Albania rose to the level of past persecution or that they were the result of her husband's political activities. The immigration judge characterized Bzhetaj's application as frivolous, making her ineligible for any future immigration benefits, and denied her application. The Board of Immigration Appeals reversed the immigration judge's finding that the application was frivolous, but affirmed the denial of Bzhetaj's application upon the same grounds as the immigration judge had relied. Bzhetaj now petitions this court to review the Board's order.\\nDISCUSSION\\nI. Application for Asylum\\nThis court has no jurisdiction to review the Board's determination that Bzhetaj's application for asylum was untimely. An alien must file for asylum within one year of their arrival in the United States. See 8 U.S.C. \\u00a7 1158. If an alien fails to file within the deadline, an immigration judge nonetheless may consider the application if the alien demonstrates \\\"to the satisfaction of the Attorney general either the existence of changed circumstances\\\" or \\\"extraordinary circumstances\\\" causing the delay. 8 U.S.C. \\u00a7 1158(a)(2)(D). The same statute provides that no court shall have jurisdiction to review any determination of the Attorney General regarding exceptions to the filing deadline. See 8 U.S.C. \\u00a7 1158(a)(3). This court is therefore without jurisdiction to review the Board's decision that no extraordinary circumstances existed to excuse Bzhetaj's tardy application. See Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir.2003).\\nII. Withholding of Removal\\nBzhetaj argues that the Board was wrong to deny her application for withholding of removal, pursuant to the Immigration and Nationality Act (INA) and the UNCAT. Unlike her application for asylum, Bzhetaj's application for withholding of removal was not subject to a time limit. See 8 U.S.C. \\u00a7 1231(b)(3); 8 C.F.R. \\u00a7 208.15; Castellano-Chaeon, 341 F.3d at 544. The immigration judge determined that Bzhetaj lacked credibility and, even if believed, was not entitled to withholding of removal because she failed to demonstrate that her life or freedom would be threatened if she were to return to Albania. We must uphold the denial of withholding of removal if supported by substantial evidence in the record. See Sylla v. INS, 388 F.3d 924, 925 (6th Cir.2004). We review the Board's credibility determinations under the same standard and treat them as \\\"conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.\\\" See id. (quoting 8 U.S.C. \\u00a7 1252(b)(4)(B)).\\nThe record in this case does not compel the court to reverse the Board's decision. From her sworn statement upon entry, to her credible fear interview, to her asylum application, to her testimony at the hearing, Bzhetaj continued to change and embellish her version of events in Albania. In her initial interview at Chicago O'Hare International Airport, Bzhetaj claimed that someone had killed her husband's cousin and that she came to the United States to be with her husband and to raise her son safely. By the January 23, 2003, hearing, Bzhetaj had changed her story several times, adding allegations of political harassment and finally rape. In addition, she failed to produce any corroborating testimony or documents to support her account, such as evidence of her husband's political activities. This state of the record put Bzhetaj's credibility in question and did not compel a finding that Bzhetaj risks future persecution in Albania.\\nCONCLUSION\\nThe Board's decision finding Bzhetaj's application for asylum untimely is unreviewable by the court, and the Board's denial of withholding of removal is supported by substantial evidence in the record. We therefore DENY Bzhetaj's petition for review.\\n. Bzhetaj claimed that she waited to file her application because she was required to do so in \\\"open court.\\\" She also claimed that the Bureau of Citizenship and Immigration Services lost her file and requested additional time to find it.\\n. The government contends that Bzhetaj waived review of her withholding claim be cause she failed to raise it in her brief to the court. Though the bulk of Bzhetaj's brief attacks the Board's invocation of the time limit for her asylum application, she does argue that the Board was wrong to deny her application for asylum and withholding of removal on substantive grounds. See Petitioner's Brief at 17-20.\"}"
\ No newline at end of file
diff --git a/us/67143.json b/us/67143.json
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index 0000000000000000000000000000000000000000..c73806fd7ccba8a3daeb05cf730de950738ceeb2
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+"{\"id\": \"67143\", \"name\": \"Petition of TRINIDAD CORPORATION, Petitioner-Appellant, as owner of THE Tank Steamship FORT MERCER, for Exoneration from or Limitation of Liability. Raymond S. Rodriquez et al., and Earl T. Smith, Claimants-Appellees\", \"name_abbreviation\": \"In re Trinidad Corp.\", \"decision_date\": \"1955-12-28\", \"docket_number\": \"No. 257, Docket 23478\", \"first_page\": \"423\", \"last_page\": \"431\", \"citations\": \"229 F.2d 423\", \"volume\": \"229\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the Second Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T21:34:32.643447+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Petition of TRINIDAD CORPORATION, Petitioner-Appellant, as owner of THE Tank Steamship FORT MERCER, for Exoneration from or Limitation of Liability. Raymond S. Rodriquez et al., and Earl T. Smith, Claimants-Appellees.\", \"head_matter\": \"Petition of TRINIDAD CORPORATION, Petitioner-Appellant, as owner of THE Tank Steamship FORT MERCER, for Exoneration from or Limitation of Liability. Raymond S. Rodriquez et al., and Earl T. Smith, Claimants-Appellees.\\nNo. 257, Docket 23478.\\nUnited States Court of Appeals Second Circuit.\\nArgued March 7, 1955.\\nDecided Dec. 28, 1955.\\nBurlingham, Hupper & Kennedy, New York City, Eugene Underwood, Elliott B. Nixon, Jr., of counsel, for petitioner-appellant.\\nShatter & Shatter, New York City, for claimants-appellees Raymond S. Rodriquez, and others.\\nKlein & Ruderman, New York City, for claimant-appellee Earl T. Smith. Edwin M. Bourke, New York City, Advocate.\\nBefore MEDINA and HINCKS, Circuit Judges, and BURKE, District Judge.\", \"word_count\": \"3881\", \"char_count\": \"23131\", \"text\": \"HINCKS, Circuit Judge.\\nOn February 18, 1952, in rough water off Cape Cod, while on a voyage from Louisiana to Maine, the petitioner's tank steamship Fort Mercer broke in two. Of the nine men on the forward section of the vessel, five lost their lives. Four men on the forward section and twenty-one men on the stern section were rescued the following day and all other survivors remained on the stern section until it was towed to port. Three actions in behalf of twenty surviving members of the crew were brought in the United States District Court for the Southern District of New York under the Jones Act to recover damages impersonal injuries allegedly sustained in an aggregate amount of $2,680,000. Of these actions, one was in behalf of Rodriquez and eighteen other members of the crew on their respective claims; another was in behalf of the claimant Smith.\\nThereafter, on July 81, 1952, the petitioner filed, also in the District Court for the Southern District of New York, a verified petition for limitation in the usual form and offered an ad interim stipulation, duly supported by affidavits, in the sum of $564,007.65 which was alleged to be not less than the aggregate value of the salved section of the vessel plus pending freight. On the same day, the court ordered the filing of the proffered stipulation, issued its monition requiring that all claims be filed on or before September 9, 1952, and entered the usual order restraining the beginning and continued prosecution of claims elsewhere than in the limitation proceedings. Thereafter, some 38 claims, including those of the plaintiffs in the actions at law, were filed in the limitation proceedings in the aggregate amount of $4,435,000, together with answers in which the claimants denied petitioner's right to a limitation of liability. Of these claims, the petitioner without order of court settled twelve for an aggregate amount of $119,443 which was substantially less than the aggregate damages originally claimed thereon.\\nThereafter, on September 13, 1954, a motion was noticed in behalf of the plaintiffs in the Rodriquez and Smith actions to modify the restraining order to permit prosecution of those actions at law. The motion was supported by a stipulation purporting to reduce the respective amounts of the claims of those plaintiffs to figures such that the aggregate amount of all outstanding claims was reduced to $442,000. These figures, however, did not include any claims in behalf of nine other members of the crew who prior to September 18, 1954 had filed no claims.\\nThe stipulation referred' to recited: \\\"The amount of each claim, [reduced] as stated above, will never be increased. No judgment or decree will be entered in any court in excess of any of the amounts set forth herein. Any claim of res judicata relevant to the issue of limitation of liability, based on a judgment or decree in any other court, is hereby waived.\\\" It was signed only by proctors for the claimants whose claims it purported to reduce. It was proffered as an exhibit annexed to the affidavit of Jacob Rassner, Esq., made in support of the motion to modify. In his affidavit Mr. Rassner recited that \\\"he is of counsel for\\\" the proctors for \\\"Rodriquez and numerous other claimants in this proceeding\\\" who have filed a civil action in this Court against petitioner Trinidad Corporation (Civ. 73-73). At the suggestion of the court a supplemental affidavit was later filed by Smith's attorney in charge of the prosecution of Civ. 75-152 reciting that \\\"in connection with the motion\\\" to modify the injunction Rodriquez' proctor \\\"was authorized to act\\\" for Smith's attorney \\\"in so far as such application was concerned.\\\" There was no showing that any claimant either orally or in writing had expressly authorized a reduction of his claim as filed. And neither Mr. Rassner, as \\\"counsel\\\" to claimants' proctors, nor any proctor for any claimant expressly represented by writing or otherwise that he had authority to reduce the amount of a client's claim.\\nOn November 5, 1954, Judge Clancy ordered, without condition or reservation, that the restraining order be modified \\\"to permit the prosecution against the petitioner herein of two civil actions now pending in this court\\\" identified as Civ. 74-73 and Civ. 75-152. Prom that order, the petitioner prosecutes this appeal.\\nJudge Clancy's memorandum decision shows that his action was predicated upon a prior decision of this court in Petition of Texas Co. (The Washington), 2 Cir., 213 F.2d 479, certiorari denied, Texas Co. v. U. S., 348 U.S. 829, 75 S.Ct. 52. That was a limitation case in which the claims filed, after the amount thereof had been reduced by stipulation, aggregated less by $350,000 than the fund in court. On motions by claimants so to modify the injunction as to permit the prosecution of their claims in other forums, this court held that the court below, while retaining jurisdiction of the limitation proceedings, properly lifted the restraint and thereby permitted the prosecution of the claims elsewhere in forums of the claimants' choice.\\nThe appellant, in a powerful argument, has asked us to re-examine the Texas Company holding. It asserts that in a limitation proceeding involving multiple claims \\\"the heart of this system is a concursus of all claims to ensure the prompt and economical disposition of controversies in which there are often a multitude of claimants,\\\" citing Maryland Casualty Co. v. Cushing, 347 U.S. 409, 74 S.Ct. 608, 98 L.Ed. 806. It stresses the pertinence of the following passage from the opinion in Hartford Accident & Indemnity Co. v. Southern Pacific Co., 273 U.S. 207, 47 S.Ct. 357, 359, 71 L.Ed. 612:\\n\\\"The proceeding partakes in a way of the features of a bill to enjoin a multiplicity of suits, a bill in the nature of an interpleader, and a creditor's bill. It looks to a complete and just disposition of a many-cornered controversy, and is applicable to proceedings in rem against the ship, as well as to proceedings in :personam against the owner; the limitation extending to the owner's property as well as to his person.\\\"\\nAnd appellant further cites Butler v. Boston & Savannah Steamship Co., 130 U.S. 527, 9 S.Ct. 612, 32 L.Ed. 1017; Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U.S. 578, 3 S.Ct. 379, 617, 27 L.Ed. 1038; The Scotland, 105 U.S. 24, 33, 26 L.Ed. 1001; Ex parte Slayton, 105 U. S. 451, 452, 26 L.Ed. 1066; and Just v. Chambers, 312 U.S. 383, 385-386, 668, 61 S.Ct. 687, 85 L.Ed. 903. It suggests that this court in deciding the Texas Company case may have overlooked these decisions. But in none of those decisions was there a consideration of the question presently raised, i. e., whether when the fund in court is adequate for payment in full of all the claims, the court should exercise its jurisdiction to effectuate and maintain a concourse.\\nIt is, of course, true that in limitation cases in which the sum total of the damages as liquidated may exceed the fund available for the payment of claims, the concourse of all claimants in the limitation proceeding is a technique indispensable to the statutory objective, viz., a marshalling of claims. For in such a case, each claimant has an interest not only to enhance his own damages but also to hold to a minimum the damages allowed on competing claims: the greater the damages proved for a competing claim the less will be the proportionate share of the fund actually payable to another claimant under 46 U.S.C.A. \\u00a7 184. In that situation, it is a matter of indifference to the owner how one claimant fares, vis-avis another. This feature explains the description, in Hartford Accident & Indemnity Co. v. Southern Pacific Co., supra, of such a proceeding as \\\"a many-cornered controversy\\\". In such cases, on the issues of the owner's liability and of its right to a limitation, the claimants have a common interest based largely on the same facts: but on the issue of their respective damages their interests are competing. The concourse is the statutory technique for the determination of these common and competing interests. In such cases, therefore, the concourse will not be disturbed \\u2014not even at the instance of the shipowner, as we held in The Quarrington Court, 2 Cir., 102 F.2d 916.\\nHowever, in cases in which the fund exceeds the total amount of damages which may be awarded, the \\\"'many cornered controversy\\\" does not exist On the one hand, the owner's right to a limitation becomes moot and, <om the other hand, no occasion for a marshalling arises and the concourse is not necessary to protect one claimant from excessive claims by competing claimants. In such cases, this court has held that the limitation statute carries no power to enforce a concourse, thereby depriving claimants of a choice of forum otherwise available. The Aquitania, D.C., 14 F.2d 456, affirmed 2 Cir., 20 F.2d 457; Curtis Bay Towing Co. v. Tug Kevin Moran, Inc., 2 Cir., 159 F.2d 273; and Petition of Moran Transportation Corp., 2 Cir., 185 F.2d 386. The holding of Petition of Texas Company is no more than a logical development of that doctrine: it recognizes that, when application is made to relax a concourse previously granted, the court in the exercise of its discretionary powers must make a preliminary determination of the adequacy of the fund in court to pay in full all claims which may be allowed.\\nGenerally, for purposes of such a determination the maximum damages originally sought on claims still pending will be taken as the measure of an adequate fund: the court will not look into the merits of the claims but will assume that the full damages sought may be awarded. But the Texas Company Petition rule recognizes that in the formulation of its discretion the court should give appropriate consideration to releases of claims theretofore filed and to the probability that additional claims may yet be filed. Nevertheless, the same case reaffirms our earlier holding that, in cases in which the fund is found adequate to obviate the need for marshalling, the limitation statute may not be taken as a grant of power, not otherwise existing in the limitation court, to enjoin a multiplicity of actions. It follows that neither the existence nor the possibility of multiple actions growing out of the maritime disaster which gave rise to the limitation proceeding is relevant to a determination of the adequacy of the fund.\\nIn line with our prior decisions we again hold that, on a finding of an adequate fund made in the light of all relevant factors, on an application seasonably made it is a proper exercise of discretion to grant leave to prosecute a claim outside the concourse and that it would constitute an abuse of discretion to deny such an application and thus deprive the claimant of his choice of forum.\\nTurning to the particular case now before us, it is clear that the court below obtained jurisdiction over the limitation proceeding including jurisdiction to adjudicate in said proceedings all claims against the vessel and its owner. White v. Island Transportation Co., 233 U.S. 346, 34 S.Ct. 589, 58 L.Ed. 993; Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520. We also believe that the jurisdiction thus obtained on the filing of the petition was not ousted even if thereafter the claims were voluntarily reduced so that the sum total of the damages claimed was shrunk to a figure less than the amount of the fund in court. In Ex parte Slayton, 105 U.S. 451, 26 L.Ed. 1066, it was held that jurisdiction was obtained even pri- or to the filing of any claims. And it has also been held that subsequent reduction of claims to make the fund adequate does not disturb such jurisdiction. Anderson v. Alaska S. S. Co., 9 Cir., 22 F.2d 532; The John K. Gilkinson, D.C.S.D.N.Y., 150 F. 454; The Tolchester, D.C.Md., 42 F. 180.\\nHowever, properly to dispose of the motion to modify the injunction, as pointed out above, the holding of the Texas Company Petition required the judge below in the exercise of his discretionary powers to make a preliminary determination of the adequacy of the fund in the light of the situation as it had then developed. In the discharge of this task, to reflect the effect of settlements already made the judge should have deducted so much of the claims as were released by the settlements from the aggregate damages sought by all filed claims. To such an adjustment of the measure of adequacy the shipowner has no standing to complain: he has no right to insist that adequacy of the fund should be measured by claims from which, through his settlements, he has obtained a release. The adjustment is fair to claimants who, to escape the concourse, assert that the fund is adequate for all. Such claimants, if they succeed in escaping the concourse, necessarily waive such protection as it affords to challenge the reasonableness of out-of-court settlements made with other claimants. Only those claiming a share in an inadequate fund have need and right to protect their participative rights as against competing claimants.\\nThe Judge should also have given appropriate consideration to the probability that additional claims might yet be filed. For the three-year statute of limitations applicable to personal injury actions under the Jones Act had not yet run. 46 U.S.C.A. \\u00a7 688; 45 U.S.C.A. \\u00a7 56, Cox v. Roth, 348 U.S. 207, 75 S.Ct. 242. However, the motion papers below showed that over two years had elapsed since the disaster and since the date set in the monition for filing of claims. In view of this time lapse, the mere fact that some of the seamen aboard at the time of disaster had not yet filed claims the judge might well have appraised as a factor too remote to affect the adequacy of the fund. If correspondence with these seamen, or other information, submitted by the owner had suggested that additional claims were still imminent, the subject-matter should have been given appropriate consideration. But no such material is to be found in the motion papers. Certainly, we cannot say that in the situation here presented, that factor was erroneously overlooked.\\nIt is not clear from the brief memorandum decision of the judge below that he understood that a proper disposition of the motion required him, as an exercise of discretion, to make a preliminary determination of the adequacy of the fund. We assume, however, for purposes of this appeal that he recognized this responsibility and that his order imports a finding that the fund was adequate. We hold, however, that the record below failed to support such a finding. Plainly the fund was not adequate if measured by the damages originally claimed. The unilateral stipulation appended to appellees' motion papers was the only basis advanced for a downward modification of that measure. It is true that that stipulation purported to be a partial release of the designated claims as filed. But as Judge L. Hand said in Ricketts v. Pennsylvania R. Co., 2 Cir., 153 F.2d 757, 759, 164 A.L.R. 387, \\\"It is well settled in this country that an attorney has no implied authority to compromise a claim.\\\" The observation necessarily extends to the partial release which is an incident to the compromise. And, of course, if the lawyer's representative capacity is not sufficient basis for the implication of power in the lawyer to give a release, from the mere assertion of power such as was made by these proctors such authority may not be implied. If viewed as a congerie of releases, the stipulation, so far as appears, was subject to possible attack not only on the ground of lack of authority but also for lack of consideration.\\nMoreover, the vulnerability of the stipulation is accentuated by the facts of its background and content. When it was filed, the claims greatly exceeded, in the aggregate, the amount of the fund with the result that there was a conflict of interests between rival claimants, as pointed out above. Yet two of the firms which signed the stipulation purported to speak each as proctor for several claimants. Doubtless a proctor or attorney may represent two or more clients with conflicting interests, if such representation is consented to by the clients. But such consent may not be implied; it must be suitably attested.\\nThe apparently discriminative nature and the drastic dimensions of the reductions which the stipulation purports to accomplish, further emphasize the need in the present setting for consent to, and authority for, the action taken. For example, Rodriquez' claim in the limitation proceedings was $150,000: by the original stipulation it was reduced to $100,000, or by 33% ; Broknis' claim of $200,000 was reduced by 62% to $75,000; and Hindsley's claim of $125,000 was reduced by about 93% to $8,000. For its bearing on apparently discriminative treatment it also may be noted that when the reductions purportedly accomplished by the original stipulation proved insufficient to bring the total amount claimed within the fund, a supplemental stipulation signed by the same proctors purported further to reduce the Rodriquez claim by 2.5%, from $100,000 to $97,500, while other claims were cut by 25%, from $8,000 to $6,000.\\nWe find no basis in the record for excluding as remote the possibility that occasions may arise for attempted attacks on the enforceability of the stipulation as a multiple release. To illustrate: a claimant who \\\"in writing under oath,\\\" Admiralty Rule 52, 28 U.S.C.A., stated his claim at $125,000 may be awarded a verdict in excess of the $6,000 to which his proctor says the claim is reduced. Cf. Couto v. United States, 2 Cir., 203 F.2d 456. At that stage, if the shipowner advances the stipulation as a partial release it is not unlikely that the seaman-claimant will attack the release on various grounds contending, perhaps, that its discriminative effect was the product of a lawyer representing adverse interests. Especially in view of the traditional solicitude of admiralty toward seamen we cannot exclude as remote the possibility of success in such an attack. Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239; Kelcey v. Tankers Company, 2 Cir., 217 F.2d 541; The Standard, 2 Cir., 103 F.2d 437. Cf. Sitchon v. American Export Lines, 2 Cir., 113 F.2d 830. In the situation here, the fund so narrowly exceeds the aggregate damages as measured by the stipulation (we roughly compute the excess at only about $2,500) that a single successful attack on the stipulation might make the fund inadequate. We, therefore, reiterate our conclusion that on the record below it could not properly be found that the fund was adequate.\\nThis conclusion, on the surface at least, may seem inconsistent with the Per Curiam opinion by this court on the petition to recall and amend the mandate in the Petition of Texas Company case, 2 Cir., 220 F.2d 744, in which the court, without explanation, overruled a contention of counsel that a stipulation in all respects similar to that used here should be signed and sworn to by the claimants. However, in that case, as appears from Judge Weinfeld's opinion below, D.C., 116 F.Supp. 915, 917, the court was apparently satisfied that a $200,000 reduction of the claim of the United States might safely be treated as a valid release. As a result the fund was adequate without the stipulated reduction of other claims and perhaps this court thought it had no need to weigh the impact of that stipulation on the situation there presented. Certainly it gave no discussion to the vulnerability of the stipulation.\\nAlthough the order appealed from must be reversed, it does not necessarily, as a matter of law, follow that another motion to lift the injunction is foreclosed. To the extent that such a motion shall be predicated on unconditional partial releases, signed and sworn to by the claimants in person, each which release shows on its face (a) the amounts of all claims filed and (b) the amounts of said partial releases, it would lie within the bounds of judicial discretion to consider in the light of the situation then presented the effect of such releases on the adequacy of the fund. If, giving full effect to such releases the fund is found adequate, the vulnerability even of such releases suggests that any order relaxing the concourse should be limited to permit the prosecution of the claims only to judgment: the injunction in so far as it enjoins collection of the judgment elsewhere than in the limitation proceedings should be continued. Moreover, as a safeguard against remote and unforeseeable contingencies, any order relaxing the concourse should contain an express reservation of jurisdiction to re-establish the concourse and to adjudicate the owner's right to a limitation in the event that the fund should ultimately prove to be inadequate, Petition of Texas Company, supra, with a provision that in no event shall the claimant recover from the fund an amount in excess of his claim as reduced by his partial release until all other claims have been satisfied in full. Cf. Petition of Moran Transportation Corp., supra. And the issuance of the order should be conditioned on the filing by the claimant of written consent to its terms.\\nIt will be observed that a seasonable relaxation of the concourse accompanied by the safeguards specified above need work no hardship on the claimants in admiralty who are content to litigate their rights in the concourse. For if the fund has been found to be adequate there will be no need for the limitation court to withhold payment of its own awards until the claims which it has relieved of the concourse have been reduced to judgment.\\nWe conclude with this final caveat as to the scope of this opinion. In holding that the limitation statute confers no power on the district court to maintain a concourse once it has found that the fund is adequate, we do not hold that the court is without power derived from other sources in a proper case to enjoin a multiplicity of actions. For this appeal has been pitched solely on the effect of the limitation statute.\\nReversed and remanded.\\nJudge BURKE concurs in this result.\\n. This suggested limitation on an order lifting the injunction is not inconsistent with the opinion in Waldie Towing Co., Inc. v. Ricca, 227 F.2d 900, decided by another panel of this court on December 9, 1955. On the contrary, it supplements the achievement of the obvious objective of that ruling.\"}"
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+"{\"id\": \"6952553\", \"name\": \"Hall v. Illinois\", \"name_abbreviation\": \"Hall v. Illinois\", \"decision_date\": \"1951-02-26\", \"docket_number\": \"No. 329\", \"first_page\": \"937\", \"last_page\": \"937\", \"citations\": \"340 U.S. 937\", \"volume\": \"340\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:03:03.598906+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hall v. Illinois.\", \"head_matter\": \"No. 329,\\nMisc.\\nHall v. Illinois.\", \"word_count\": \"12\", \"char_count\": \"79\", \"text\": \"Supreme Court of Illinois. Certiorari denied.\"}"
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+"{\"id\": \"724149\", \"name\": \"CHICKASAW NATION v. THE UNITED STATES\", \"name_abbreviation\": \"Chickasaw Nation v. United States\", \"decision_date\": \"1932-06-06\", \"docket_number\": \"No. K-335\", \"first_page\": \"426\", \"last_page\": \"436\", \"citations\": \"75 Ct. Cl. 426\", \"volume\": \"75\", \"reporter\": \"United States Court of Claims Reports\", \"court\": \"United States Court of Claims\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:42:40.278124+00:00\", \"provenance\": \"CAP\", \"judges\": \"Whaley, Judge; Williams, Judge; GeeeN, Judge; and Booth, Chief Justice, concur.\", \"parties\": \"CHICKASAW NATION v. THE UNITED STATES\", \"head_matter\": \"CHICKASAW NATION v. THE UNITED STATES\\n[No. K-335.\\nDecided June 6, 1932]\\nMr. Assistant Attorney General Seth W. Richardson for the demurrer. Messrs. Assistant Attorney General Charles B. Rugg, George T. Stormont, and Charles H. Small were on the briefs.\\nMr. Melvin Cornish, opposed. Messrs. \\u2019William H. Fuller and G. G. McYay were on the brief.\", \"word_count\": \"3546\", \"char_count\": \"20749\", \"text\": \"LittletoN, Judge,\\ndelivered the opinion of the court:\\nPlaintiff sues to recover a minimum of $472,490, together with interest, being one-fourth of the value of 1,511,968 acres of land'lying between the North Fork and the South Fork of the Eed River and bounded on the west by the one hundredth meridian of west longitude, which tract of land has been known and designated as \\\" Greer County,\\\" in the State of Texas.\\nPlaintiff asserts that these lands \\u2022 were conveyed to the Choctaws and Chickaaaws with other lands by the United States under certain treaties hereinafter mentioned and that the Choctaws and the Chickasaws have never been divested of their ownership and title in and to these lands, and that they are therefore the owners of legal title thereto in proportion of three-fourths to the Choctaws and one-fourth to the plaintiff ; that the United States ignored the ownership and title of- the Choctaw and Chickasaw Nations and in violation of their rights sold or disposed of such lands some time after March 16, 1896, and that the United States is liable to plaintiff for one-fourth of the amount for which these lands were sold if in excess of $1.25 an acre, and that if sold or disposed of for less than $1.25 an acre it is liable to plaintiff for one-fourth of $1.25 an acre for the entire acreage of 1,511,968.\\nThe petition was filed August 5, 1929, under the act of Congress approved June 7, 1924, 43 Stat. 537, and the act of February 19,1929, 45 Stat. 1229, conferring jurisdiction upon this court to \\\" hear, examine, and adjudicate and render judgment in any and all legal and equitable claims arising under or growing out of any treaty or agreement between the United States and the Choctaw and Chickasaw Indian Nations or Tribes, or either of them, or arising under or growing out of any act of Congress in relation to Indian affairs which said Choctaw and Chickasaw Nations or Tribes may have against the United States, which claims have not heretofore been determined and adjudicated on their merits by the Court of Claims or the Supreme Court of the United States.\\\"\\nThe lands constituting the subject matter of this suit comprise 1,511,968 acres, more or less, lying between the North Fork and the South Fork of the Red River and bounded on the west by the one hundredth meridian of west longitude, and known and designated for years as \\\" Greer County \\\" in the State of Texas. This territory, together with other lands, was ceded by Spain to the United States by treaty of February 22, 1819, from which time continuously until the Government's title thereto was adjudicated in the United States v. State of Texas, 162 U. S. 1, the United States asserted and laid claim to said disputed territory known as Greer County. The lands above-mentioned, with other lands, were conveyed by the United States to the Choctaw and Chickasaw Nations under treaties or agreements of 1820, 7 Stat. 210; 1830, 7 Stat. 333; 1837, 11 Stat. 573; 1855, 11 Stat. 611; and 1866, 14 Stat. 769.\\nArticle IX of the treaty of 1855 between the United States and the Choctaw and Chickasaw Nations provided: \\\" the Choctaws and Chickasaws do hereby lease to the United States all that portion of their common territory west of the ninety-eighth degree of west longitude, for the permanent settlement of the Wichita and such other tribes or bands of Indians as the Government may wish to locate therein In Article III of the treaty of 1866 it was provided that \\\" The Choctaws and Chickasaws hereby cede to the United States the territory west of the ninety-eighth degree west longitude, known as the leased district, This article further provided a consideration of $300,000 for the ceded territory. The 1,511,968 acres constituting the subject matter of this suit, and known as Greer County, were west of the ninety-eighth degree of west longitude.\\nPlaintiff alleges and contends that the land in question was not leased to the United States under the treaty of 1855 and was not ceded to the United States under the treaty of 1866; that the ownership and title thereto were a subject of dispute and controversy from 1819 until March 16, 1896, when the Supreme Court in United States v. State of Texas, supra, decided that the land had been acquired by the United States under its treaty of 1819 with Spain. It is further alleged and contended that the decision of the Supreme Court inured to the benefit of the Choctaw and Chickasaw Nations, as the land known as Greer County had been acquired by them from the United States under the treaty of 1820 and later treaties above mentioned; that although the land in question was west of the ninety-eighth degree of west-longitude, it was not and could not have been within the territory referred to in the treaty of 1866 as the territory \\\" known as the leased district,\\\" because the ownership and title thereof were in dispute and the United States was not in possession of the land; and, further, that only that territory upon which the character of the leased land was known to have been impressed by the removal and settlement thereon of tribal bands of Indians prior to 1866 was ceded by the Choctaw and Chickasaw Nations under the provisions of the treaty of 1866. It is therefore contended by plaintiff that it has never been divested of its title and ownership in and to said land acquired from the United States under the treaty of 1820 and subsequent treaties, and that after the decision in the United States v. State of Texas, supra, in March, 1896, the land was sold and otherwise disposed of as public lands by the United States in violation of the rights of the Choctaw and Chickasaw Nations, and that it is entitled to recover from the defendant approximately one-fourth of the value of the land at the time of sale thereof.\\nThe defendant demurs to the petition on the ground that it does not set forth facts sufficient to constitute a cause of action, and contends that under the facts alleged and the treaties to which reference is made, there is no basis in fact or law for a judgment against the United States.\\nThe land in controversy herein, known as \\\" Greer County,\\\" was, together with other territory, ceded to the United States by Spain under the treaty of February 22, 1819, between the United States and Spain.\\nArticle III of this treaty shows the Bed River at certain indicated points to be the southern boundary of the United States, and provides in part that \\\" The boundary line between the two countries, west of the Mississippi, shall begin on the Gulf of Mexico, at the mouth of the River Sabine, in the sea, continuing north, along the western bank of that river to the 32d degree of latitude; thence, by a line due north, to the degree of latitude where it strikes the Rio Roxo, of Natchitoches, or Red River; then following the course of the Rio Roxo, westward, to the degree of longitude 100 west from London and 23 from Washington;\\nDue to the fact that it was not until many years after this original cession by Spain that an accurate survey of the ceded country was made, the title to the particular land in controvers}'' in this suit was in dispute until the Supreme Court in United States v. State of Texas, supra, decided that the land known as Greer County was within the boundary of the country acquired by the United States under the treaty of 1819 with Spain. This decision gave the United States title to this disputed area from February 22, 1819, until the latter divested itself of the same.\\nBy article 2 of the treaty of 1820 between the United States and the Choctaw Nation, the former ceded to the latter \\\" a tract of country west of the Mississippi River, situate between the Arkansas and Red Rivers, and bounded as follows: Beginning on the Arkansas River, where the lower boundary line of the Cherokees strikes the same; thence up the Arkansas to the Canadian Fork, and up the same to its source; thence due south to the Red River ; thence down Red River, three miles below the mouth of Little River, which empties itself into Red River on the north side; thence a direct line to the beginning.\\\" The land involved in this suit was within the area ceded by the United States to the Choctaw Nation under this treaty which defined the Red River as a portion of the southern boundary thereof.\\nIn article 2 of the treaty of September 21, 1830, between the United States and the Choctaw Nation, the former agreed to \\\" cause to be conveyed to the Choctaw Nation a tract of country west of the Mississippi River, in fee simple to them and their descendants, to inure to them while they shall exist as a nation and live on it, beginning near Fort Smith, where the Arkansas boundary crosses the Arkansas River, running thence to the source of the C\\u00e1na-dian Fork; if in the limits of the United States, or to those limits; thence due south to Red River, and down Red River to the west boundary of the Territory of' Arkansas; thence north along that line to the beginning. The boundary of the same to be agreeably to the treaty made and concluded at Washington City in the year 1825. The grant to be executed so soon as the present treaty shall be ratified.\\\"\\nThe land lying between the North Fork and the South Fork of Red River and bounded on the west by the one-hundredth meridian of west longitude and \\\" known as Greer County,\\\" which land constitutes the subject matter of this action, was within the area ceded by the provisions of Article 2 set out, and the Red River thereby became a portion of the boundary of the territory therein described.\\nThe treaty of January TT, 1837, was between the Choctaw Nation and the Chickasaw Nation, and accorded certain privileges to these nations. Among other privileges, the Chickasaws were granted the right to form a district within the limits of the Choctaw country, and in Article 2 thereof it was provided that: \\\" The Chickasaw district shall be bounded as follows, viz: Beginning on the north bank of Red River, at the mouth of Island Bayou, about eight or ten miles below the mouth of False Wachitta; thence running north along the main channel of said bayou to its source; thence along the dividing ridge between Wachitta and Low Blue Rivers to the road leading from Fort Gibson to Fort Wachitta; thence along said road, to the line dividing Mushallatubbee and Pushmatahaw districts; thence eastwardly along said district line, to the source of Brushy Creek; thence down said creek to where it flows into the Canadian River, ten or twelve miles above the mouth of the south fork of the Canadian; thence west along the main Canadian River, to its source, if in the limits of the United States, or to those limits; and thence due south to Red River, and down Red River to the beginning.\\\" The United States was not a party to this treaty, which was merely an agreement between the Choctaw and Chickasaw Nations in respect to tribal relations.\\nThe treaty of 1855, supra, was a treaty between the United States and the Choctaw and Chickasaw Nations, and was concluded June 22, 1855. It superseded all former treaties between the United States and the Choctaws and all former treaty stipulations between the United States and the Chickasaws, and between the Choctaws and Chickasaws inconsistent therewith. This treaty, in so far as it is pertinent to the question involved in this case, provides as follows:\\n\\\" Whereas, the political connection heretofore existing between the Choctaw and the Chickasaw Tribes of Indians, has given rise to unhappy and injurious dissensions and controversies among them, which render necessary a readjustment of their mations to each other and to the United States; and\\n\\\"Whereas, the United States desires that the Choctaw Indians shall relinquish all claim to any territory west of the one-hundredth degree of west longitude, and also to make provision for the permanent settlement within the Choctaw country of the Wichita and certain other tribes or bands of Indians, for which purpose the Choctaws and Chickasaws are willing to lease, on reasonable terms, to the United States, that portion of their common territory which is west of the ninety-eighth degree of west longitude; and\\n\\\" Whereas it is necessary for the simplification and better understanding of the relations between the United States and the Choctaw Indians, that all their subsisting treaty stipulations be embodied in one comprehensive instrument:\\n\\\" Now, therefore, the United States of America , the Choctaws, and the Chickasaws, do hereby agree and stipulate as follows, viz:\\n\\\"Aeticlb 1. The following shall constitute and remain the boundaries of the Choctaw and Chickasaw country, viz: Beginning at a point on the Arkansas River, one hundred paces east of old Fort Smith, where the western boundary line of the State of Arkansas crosses the said river, and running thence due south to Red River, thence up Red River to the point where the meridian of one hundred degrees west longitude crosses the same; thence north along said meridian to the main Canadian River; thence down said river to its junction with the Arkansas River, thence down said river to the place of beginning.\\n\\\"Ahticle 9. The Choctaw Indians do hereby absolutely and forever quitclaim and relinquish to the United States, all their right, title, and interest in, and to any and all lands, west of the one hundredth degree of west longitude; and the Choctaws and Chickasaws do hereby lease to the United States all that portion of their common territory west of the ninety-eighth degree of west longitude, for the permanent settlement of the Wichita and such other tribes or bands, of Indians as the Government may desire to locate therein\\n: Provided, however, The territory so l\\u00e9ased shall remain open to settlement by Choctaws and Chickasaws as. heretofore.\\n\\u00abi\\u00bb \\u2022{\\u00bb\\n\\\" Article 21. This convention shall supersede and take the place of all former treaties between the United States and the Choctaws, and, also, of all treaty stipulations between the United States and the Chickasaws, and between the Choctaws and Chickasaws, inconsistent with .the agreement, and shall take effect and be obligatory upon the contracting parties, from the date hereof, whenever the same shall be ratified by the respective councils of the Choctaw and Chickasaw Tribes and by the President and Senate-of the United States.\\\"\\nThis treaty was ratified by the general council of the Choctaw and the Chickasaw Tribes November 16 and December 13, 1855, respectively, and by the United States Senate on March 8, 1859. It was proclaimed April 29, 1859.\\nIt should be noted that the lands in controversy in this, suit, known as \\\" Greer County \\\" were situate west of the ninety-eighth degree of west longitude and were within the territory leased by the United States under the provisions of article 9 of the treaty of 1855, and that under article 1 of the treaty of 1855 the Red River was defined as a portion of' the southern boundry of the Choctaw and Chickasaw country.\\nThe treaty of 1866, sufra, between the United States and the Choctaw and Chickasaw Nations was concluded April 28, 1866. Under its terms the Choctaws and Chickasaws ceded outright to the United States all of their territory west of the ninety-eighth degree of west longitude, known as the leased district; article 3 thereof providing as follows:\\n\\\"Article 3. The Choctaws and Chickasaws, in consideration of the sum of three hundred thousand dollars hereby cede to the United States the territory west of the 98\\u00b0 west longitude, known as the leased district, provided that the said sum shall be invested and held by the United States, at an interest not less than five per cent\\nThere can be no dispute that the land in controversy in this suit known as Greer County was within the limits of the \\\" leased district \\\" described in Article 9 of the treaty of 1855. When the Choctaws and the Chickasaws ceded to the United States under the treaty of 1866 the territory west of the ninety-eighth degree, west longitude, these nations, in our opinion, ceded all of the lands lying between the northern and southern boundaries of. territory west of the ninety-eighth degree which had theretofore been granted to them by the United States. By the treaty of 1819 with Spain, Bed Biver became a part of the southern boundary of the United States. From that date forward the United States claimed title to and ownership of the disputed territory of 1,511,968 acres, more or less, afterwards known as Greer County. Inasmuch as the Bed Biver is specifically named in the treaties with the Choctaws, we think the United States intended that the southern boundry of the Choctaw Nation should be coincident with its own southern boundary, in so far as the cession to that Indian nation was concerned. When therefore, in 1855, the Choctaws and the Chickasaws leased all of their territory west of the ninety-eighth degree they leased all that they had theretofore obtained from the United States, the Bed Biver being named and described in the treaty with Spain and with the Choctaws and the Chickasaws as constituting a portion of the southern boundary of the area described therein. The fact that the interested parties were not certain as to the exact location of the Bed Biver or that there was doubt as to what was meant by the \\\" Bed Biver,\\\" does not alter the fact that by the treaty of 1855 the Choctaws and the Chickasaws intended to lease all the land theretofore acquired from the United States and that the latter intended to take a lease of all land that it had theretofore ceded to these Indian nations. Inasmuch as the land in controversy in this suit, known as Greer County, was situate within the territory west of the ninety-eighth degree of west longitude, known as the \\\" leased district,\\\" we think it is clear that it was included in the territory, ceded by the provisions of Article 3 of the treaty of 1866.\\nPlaintiff further contends that there was included in the land leased under the treaty of 1855 only such territory west of the ninety-eighth degree, west longitude, upon which various tribes and bands of Indians were subsequently located or settled, inasmuch as this territory was leased for the definite and specific purpose of \\\" the permanent settlement of the Wichita and such other tribes or bands of Indians as the Government may desire to locate therein and insists that no portion of the territory.west of the ninety-eighth degree of west longitude became included in the \\\" leased district \\\" until some tribe or band of Indians had been located thereon by the Government; and that inasmuch as no Indian tribe or band had been located on the land known as Greer County to the date of ratification of the treaty of 1866, the land in question herein could not have been within the territory known as the leased district. In our opinion it is immaterial whether any-of the purposes for which the land was originally leased were accomplished by the United States. Under the language of the treaty of 1866 the Choctaws and the Chickasaws intended to cede, and did cede, to the United States \\\" the territory west of the ninety-eighth degree, west longitude,\\\" which territory included the land which theretofore, under the treaty of 1855, had been leased by these Indian nations to the United States for certain specified purposes.\\nIt is finally urged by plaintiff that inasmuch as the State of Texas was claiming title to and ownership of \\\" Greer County \\\" when the treaties of 1855 and 1866 were ratified, the land in question Avas \\\" not and could not have been known as the leased district.\\\" In our opinion the fact that the State of Texas laid claim to the land in question is not important. Under the decision in United States v. State of Texas, supra, title to the property vested in the United States in 1819. Under the provisions of subsequent treaties between the United States and the ChoctaAV and Chickasaw Nations, title to this land became vested in the Choctaw and Chickasaw Nations and remained in them until the final ratification and proclamation of tbe treaty of 1866 in which the Indian nations ceded back to the United States all of their right, title, and interest to the lands in controversy herein.\\nThe demurrer is sustained and the petition is dismissed. It is so ordered.\\nWhaley, Judge; Williams, Judge; GeeeN, Judge; and Booth, Chief Justice, concur.\"}"
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+"{\"id\": \"7359069\", \"name\": \"YALE & TOWNE MFG. CO. v. HABER\", \"name_abbreviation\": \"Yale & Towne Mfg. Co. v. Haber\", \"decision_date\": \"1934-07-30\", \"docket_number\": \"No. 7215\", \"first_page\": \"791\", \"last_page\": \"793\", \"citations\": \"7 F. Supp. 791\", \"volume\": \"7\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the Eastern District of New York\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T19:41:02.871702+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"YALE & TOWNE MFG. CO. v. HABER.\", \"head_matter\": \"YALE & TOWNE MFG. CO. v. HABER.\\nNo. 7215.\\nDistrict Court, E. D. New York.\\nJuly 30, 1934.\\nPorter & Taylor, of New York City (F. Carroll Taylor, of New York City, of counsel), for plaintiff.\\nDavid R. Haber, of New York City (Max F. Finkelstein, of New York City, of counsel), for defendant.\", \"word_count\": \"1672\", \"char_count\": \"9571\", \"text\": \"CAMPBELL, District Judge.\\nThis is an action in equity brought by the plaintiff, a manufacturer of locks, keys, hardware, and other products which it identifies by the name \\\"Yale,\\\" in which it seeks to enjoin the defendant, a hardware merchant and locksmith, from using the name \\\"Yale Lock Service\\\" as a trade-name for his business, and from listing such' name in telephone directories, and in general from using the word \\\"Yale\\\" in any manner calculated to cause his business to be confused with plaintiff.\\nPlaintiff's solicitors in their brief say that it is concerned with protecting its rights in the word \\\"Yale,\\\" and stands ready' to waiye any accounting or damages.\\nThe facts are as follows:\\nPlaintiff over a period of seventy years has built up a world-wide business in locks, hardware, and other fabricated articles.\\nPlaintiff has for many years identified its products and its business entirely by the word \\\"Yale.'.'\\nPlaintiff has earned a widespread and enviable reputation in its field, and its goodwill which centers around the word \\\"Yale\\\" is of large value.\\nThe public has come to associate plaintiff's locks and keys and other products with and to know the business itself by the name \\\"Yale.\\\"\\nPlaintiff has forty men continuously engaged in traveling throughout the country, including New York City, oiling, cleaning, and, when necessary, repairing bank locks, safe deposit locks, and the like.\\nPlaintiff employs at least ten men at its plant at Stamford, Conn., who do nothing but repair work, and orders for such work on simple locks, door cheeks and the like are constantly being received from New York City and elsewhere, and are filled.\\nThese orders for repair work come both from locksmiths and users.\\nWhen plaintiff has installed a master key system, it keeps records of the adjustments, and it endeavors to and does have its own employees make any repairs and adjustments in such systems as may be required.\\nPlaintiff does not maintain any repair shop in New York City, but it does receive from two to fifteen telephone calls a day relating to repairs or service. In some cases the inquirer is advised to send the article to Stamford, in rarer cases a man is sent out to do the work, and in ordinary simple eases, the inquirer is referred to some neighborhood locksmith whom plaintiff believes to be reliable and competent to do the work.\\nPlaintiff does not give any licenses to locksmiths to \\\"service\\\" or \\\"repair\\\" \\\"Yale\\\" locks. It has no agency or other contract with defendant.\\nPlaintiff sells \\\"Yale\\\" parts to locksmiths, and sells \\\"Yale\\\" products to dealers for resale. Such sales have been made to the defendant.\\nThe defendant has a hardware store where he does locksmithing. He handles the products of a number of manufacturers. In December, 1933, he registered with the county clerk of New York county, a certificate adopting \\\"Yale Loek Service\\\" as a trade-name for his business. This name appears on his store, although he testified that the real name of his business was \\\"Bridge Hardware Store.\\\" He lists \\\"Yale Loek Service\\\" as the name of his business, in the telephone directories of Manhattan, Bronx, Brooklyn, and Queens. He uses on his cards and on his bill forms the expression, \\\"Distributors and Manufacturers Agent for Yale.\\\"\\nThe defendant's intention in adopting \\\"Yale Lock Service\\\" as a trade-name was stated in his answer to be, \\\"to attract telephone inquiries.\\\" At the trial he testified that the reason he filed the certificate was that he received a cheek to \\\"Yale Lock Service\\\" and had to file the certificate in order to get it cashed. Apparently the defendant had been using \\\"Yale Lock Service\\\" in the telephone books for a short time prior to registering the trade-name. The defendant has stated that he did not know that the telephone companies will not list a name in the directories unless it is the trade-name of a business, but admitted that he had recently been told so.\\nOn the facts as found, the use of the name \\\"Yale Loek Service\\\" by the defendant constitutes unfair competition against the plaintiff, and should be enjoined.\\nThe name \\\"Yale,\\\" for which plaintiff has built up a great reputation, is- a commercial asset of very large value, and plaintiff is entitled to have it protected.\\nThe name \\\"Yale\\\" identifies the plaintiff and its products, and the use which the defendant makes of the word tends to deceive those dealing with it to believe that they are dealing with plaintiff, and thus the control of the name and the character of the repair work done by the defendant under the name \\\"Yale\\\" is not controlled by the plaintiff. This is an injury, even though the work done by the defendant may be good, and n\\u00f3 sales or repair work may be diverted from plaintiff: Yale Electric Corporation v. Robertson (D. C.) 21 F.(2d) 467, affirmed (C. C. A.) 26 F.(2d) 972; see Yale Electric Corporation v. Yale & Towne Mfg. Co., 56 App. D. C. 242, 12 F.(2d) 183.\\nEven though it be denied by the defendant, the evidence shows that plaintiff does engage in repairing its locks and hardware, and that the defendant's use of the name \\\"Yale\\\" would tend to unfairly divert business to defendant, and thus there is direct competition; but even if there was no direct competition, it seems clear to me that defendant's use of the name \\\"Yale\\\" is calculated to deceive the public. Yale Electric Corporation v. Robertson and Yale & Towne Manufacturing Co. (C. C. A.) 26 F.(2d) 972; Buick Motor Co. v. Buick Used Car Exchange, 132 Misc. 158, 229 N. Y. S. 219; Buick Motor Co. v. Buick Used Motors, Inc., 132 Misc. 156, 229 N. Y. S. 3; R. H. Macy & Co. v. Colorado Clothing Mfg. Co. (C. C. A.) 68 F.(2d) 690.\\nThe defendant does not by the use of the name \\\"Yale Loek Service\\\" simply hold itself out as a concern that repairs \\\"Yale\\\" locks, but so uses the word that any one observing it would believe that the servicing was done by plaintiff, and the following cases cited by defendant are not in point: Standard Oil Co. v. California Peach & Fig Growers (D. C.) 28 F.(2d) 283; Bourjois & Co. v. Katzel, 260 U. S. 689, 43 S. Ct. 244, 67 L. Ed. 464, 26 A. L. R. 567; Gorham Mfg. Co. v. Emery-Bird-Thayer Dry Goods Co. (C. C.) 92 F. 774; Vitascope Co. v. United States Phonograph Co. (C. C.) 83 F. 30.\\nEven though the defendant may be engaged in selling products made by plaintiff, it is not justified in holding itself out as repairing or servicing, under a name which would tend to deceive the public, into the belief that the servicing or repairing was done by plaintiff, which is the effect of using the name \\\"Yale Lock Service,\\\" and the following cases cited by defendant are not in point: Soci\\u00e9t\\u00e9 Anonyme du Filtre Chamberland Syst\\u00e8me Pasteur v. Consolidated Filters Co. (D. C.) 248 F. 358; Russia Cement Co. v. Frauenhar (C. C. A.) 133 F. 518.\\nOf course, defendant may advertise, that, it repairs Yale locks, but must do so in a. way not calculated to deceive the public into the belief that the business conducted by it is conducted by plaintiff.\\nPlaintiff has been active in the protection of its rights to the name \\\"Yale,\\\" and although, it may be argued that defmdant's use is a local one, and not of much injury, the fact remains that the advertisement of the name in the telephone books of the four largest boroughs of the city of New York is bound to attract business to the defendant by virtue of the good will of the plaintiff built up under its name \\\"Yale.\\\"\\nThe motive of the defendant in adopting such name was unquestionably to derive an advantage from the plaintiff's name \\\"Yale,\\\" by attracting business to defendant, in the belief by the public that the business was connected with plaintiff.\\nHowever, whatever' may have been the motive when the name was adopted, the advertisement of the same shows a purpose to capitalize the name to the detriment of the.plaintiff and for the benefit of the defendant. \\\"Whatever the motive, that is the effect.\\nThe defendant has no agency or other contract with plaintiff, and has no right to hold itself out as \\\"Distributors and Manufacturers Agent for Yale,\\\" although of course it has the right to advertise the goods it sells.\\nThe court has jurisdiction, as the amount involved is far in excess of the statutory amount. Wisconsin Electric Co. v. Dumore Co. (C. C.) 35 F.(2d) 555, 556.\\nThe plaintiff is entitled to a decree against the defendant, with an injunction enjoining and restraining the defendant Charles L. Haber,\\\" his attorneys, agents, clerks, or servants, from using the name \\\"Yale Lock Service,\\\" or any other name containing the word \\\"Yale,\\\" as his trade-name or the name of his business, or from describing his business as \\\"Yale Lock Service\\\" in telephone directories, or from using the term \\\"Manufacturers Agent for Yale,\\\" or from using the word \\\"Yale\\\" in any manner calculated to cause the defendant's business to be confused or mistaken for the business of the plaintiff, with costs, and, if not waived by plaintiff, to an accounting and the usual order of reference and damages.\\nA decree may be entered in accordance with this opinion. Settle decree on notice.\\nSubmit proposed findings of fact and conclusions of law in accordance with this opinion, for the assistance of the court, as provided by rule 70 1/2 and rule 11 of the Equity Rules (28 USCA \\u00a7 723) of this court.\"}"
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+"{\"id\": \"7408578\", \"name\": \"Eliot Winfred AARON, Plaintiff, v. Oakland County Sheriff Deputy Jeffery FINKBINDER; Marsha Ayer, R.N.; Barbara Draper, R.N.; Nancy Jenson, R.N., f/k/a Nancy Rogers, R.N., individually, jointly and severally, Defendants\", \"name_abbreviation\": \"Aaron v. Finkbinder\", \"decision_date\": \"1992-06-19\", \"docket_number\": \"No. 91-73627\", \"first_page\": \"734\", \"last_page\": \"738\", \"citations\": \"793 F. Supp. 734\", \"volume\": \"793\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the Eastern District of Michigan\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:48:40.211213+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Eliot Winfred AARON, Plaintiff, v. Oakland County Sheriff Deputy Jeffery FINKBINDER; Marsha Ayer, R.N.; Barbara Draper, R.N.; Nancy Jenson, R.N., f/k/a Nancy Rogers, R.N., individually, jointly and severally, Defendants.\", \"head_matter\": \"Eliot Winfred AARON, Plaintiff, v. Oakland County Sheriff Deputy Jeffery FINKBINDER; Marsha Ayer, R.N.; Barbara Draper, R.N.; Nancy Jenson, R.N., f/k/a Nancy Rogers, R.N., individually, jointly and severally, Defendants.\\nNo. 91-73627.\\nUnited States District Court, E.D. Michigan, S.D.\\nJune 19, 1992.\\nPeter J. Lyons, Detroit, Mich., for plaintiff.\\nJohn H. Dise, Jr., G. Gus Morris, Detroit, Mich., for defendants.\", \"word_count\": \"2257\", \"char_count\": \"14081\", \"text\": \"OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT\\nGADOLA, District Judge.\\nPlaintiff filed this lawsuit alleging violations of 42 U.S.C. \\u00a7 1983, and his eighth amendment right to be free from deliberate indifference to his serious medical needs. Defendants filed their motion for summary judgment June 3, 1992. Plaintiff filed a response and defendants filed a reply. Oral argument was heard June 18, 1992.\\nFACTS\\nPlaintiff Eliot Aaron is an insulin-dependent diabetic. On October 31,1989, plaintiff appeared in Oakland County Circuit Court for sentencing on a conviction for receiving and concealing stolen property in excess of $100.00, which was arrived at by plea. At the time, plaintiff was on 58 units of Lente (insulin), which he was supposed to take by injection daily before breakfast. Plaintiff did not take his insulin on the morning of October 81, 1989, because he \\\"didn't expect sentencing\\\" and \\\"thought it was just another court date.\\\" Plaintiff was sentenced to four months at the Oakland County Jail.\\nPlaintiff was taken to a detention cell at the courthouse and was transported to a holding cell at the Oakland County Jail at approximately 3:00 p.m. According to jail records, plaintiff underwent medical screening/booking at 4:44 p.m. by defendant Jeffrey Finkbinder. Finkbinder has no independent recollection of plaintiff. According to plaintiff, he was booked at 6:00 p.m. by deputy See. Plaintiff states that he told the booking officer that he was a diabetic and had not had any insulin that morning. Further, plaintiff stated that the booking officer called the nurse and/or clinic with this information. Plaintiff was then placed in the holding tank.\\nPlaintiff claims to have written out sick-call slips on the morning of November 1, 1989. According to jail clinic records, four sick-call slips were written out by plaintiff, but only one of those slips was dated November 1, 1989. This one slip was in plaintiff's handwriting and read \\\"Diabetic haven't had insulin shot in two days.\\\" Also on this slip defendant Barbara Draper, a nurse in the jail clinic, wrote \\\" *See in SC.\\\" Apparently \\\"SC\\\" means \\\"sick call.\\\" Draper testified that, to the best of her recollection, she first saw this sick-call slip in the morning of November 2, 1989, although she does admit that it is possible that she received the slip November 1, 1989. Draper scheduled plaintiff for a sick call for the morning of November 2, 1989.\\nPlaintiff had contact with defendant nurse Marsha Ayer in the early morning hours of November 2, 1989. Ayer testified that, while she has no independent recollection of plaintiff, she identified her handwriting on a second sick-call slip dated November 2, 1989. Ayer had written on this second slip information given to her by plaintiff. The slip states \\\"diabetic 16 yrs.; Lente 50 u qam; 2,800 cal diet.\\\" Ayer further testified that following her meeting with plaintiff, she obtained for him a dosage of 50 units of Lente insulin. Jail records reflect that plaintiff received a shot of 50 units of Lente insulin on November 2, 1989, at 6:00 a.m., which was administered by Ayer.\\nPlaintiff was seen in the jail clinic by defendant nurse Nancy Rogers/Jansen at 10:30 a.m. on November 2, 1989. After Draper took plaintiff's vital signs, Rogers/Jansen noted that plaintiff had been vomiting due to increased blood sugar and had been having increased thirst and headaches. Rogers/Jansen did a complete examination of plaintiff, including a random blood sugar test, which read 204, indicating a mildly elevated blood sugar level for insulin-dependent diabetics. Rogers/Jansen noted that plaintiff told her he was taking 58 units of Lente insulin. Rogers/Jansen placed plaintiff on a 58 unit qam dosage, and plaintiff was given a vial of liquid glucose to take immediately if he experienced symptoms of low blood sugar. Plaintiff was given instructions to return to the clinic if vomiting reoecurred.\\nAt 5:00 a.m. on' November 3, 1989, nurse Marlene Hughes went to plaintiff's cell to administer the 58 units of Lente insulin. The jail medication log reflects that Hughes wrote \\\"5A Insulin held-vomiting-SC this A.M.\\\" Insulin was withheld because giving insulin to a diabetic who has not eaten or who had been unable to keep down food can cause the person to go into insulin shock, which is life-threatening. Hughes also did a random blood sugar the morning of November 3, 1989. The test showed a level of 151, lower than the day before and well within the range set for insulin-dependent diabetics.\\nPlaintiff was seen in the jail clinic by Dr. DeShere on November 3, 1989, at 9:30 a.m. DeShere examined plaintiff and, because of plaintiffs dehydration problems, elected to send him to Pontiac General Hospital via ambulance. At the hospital, plaintiff was treated for diabetic keto-acidosis. His random blood sugar had shot up to 856. Plaintiff remained at Pontiac General Hospital for two days and was stabilized. After-wards, he was returned to the jail with no residual difficulties. Plaintiff received insulin at the jail for the remainder of his incarceration and had no other difficulties. Plaintiff testified that he believes that he has no residual health problems because of this episode at the Oakland County Jail.\\nSTANDARD OF REVIEW\\nUnder Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted \\\"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.\\\" \\\"A fact is 'material' and precludes grant of summary judgment if proof of that fact would have [the] effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect [the] application of appropriate principle[s] of law to the rights and obligations of the parties.\\\" Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984) (quoting Black's Law Dictionary 881 (6th ed. 1979)) (citation omitted). The Court must- view the evidence in a light most favorable to the nonmovant as well as draw all reasonable inferences in the non-movant's favor. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir.1984).\\nThe movant bears the burden of demonstrating the absence of all genuine issues of material fact. See Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir.1986). The initial burden on the movant is not as formidable as some decisions have indicated. The moving party need not produce evidence showing the absence of a genuine issue of material fact; rather, \\\"the burden on the moving party may be discharged by 'showing' \\u2014 that is, pointing out to the district court \\u2014 that there is an absence of evidence to support the nonmoving party's case.\\\" Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the moving party discharges that burden, the burden shifts to the nonmoving party to set forth specific facts showing a genuine triable issue. Fed.R.Civ.P. 56(e); Gregg, 801 F.2d at 861.\\nTo create a genuine issue of material fact, however, the nonmovant must do more than present some evidence on a disputed issue. As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).\\nThere is no issue for trial unless there is sufficient evidence favoring the nonmov-ing party for a jury to return a verdict for that party. If the [nonmovant's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted.\\n(Citations omitted); see also Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The standard for summary judgment mirrors the standard for a directed verdict under Fed.R.Civ.P. 50(a). Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Consequently, a non-movant must do more than raise some doubt as to the existence of a fact; the nonmovant must produce evidence that would be sufficient to require submission of issue to the jury. Lucas v. Leaseway Multi Transp. Serv., Inc., 738 F.Supp. 214, 217 (E.D.Mich.1990), aff'd, 929 F.2d 701 (6th Cir.1991). The evidence itself need not be the sort admissable at trial. Ashbrook v. Block, 917 F.2d 918, 921 (6th Cir.1990). However, the evidence must be more than the nonmovant's own pleadings and affidavits. Id.\\nANALYSIS\\nPlaintiff's allegations that he was improperly denied medical treatment are governed by Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In Estelle, the Supreme Court held that:\\n. an inadvertent failure to provide adequate medical care cannot be said to constitute \\\"an unnecessary and wanton infliction of pain\\\" or to be \\\"repugnant to the conscious of mankind.\\\" Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend \\\"evolving standards of decency\\\" in violation of the Eighth Amendment.\\nId. at 105-106, 97 S.Ct. at 292 (emphasis added) (footnote omitted). After review of plaintiff's allegations, this court finds no genuine issue of material fact which arguably would hold defendants liable under Estelle.\\nPlaintiff first contends that defendant Finkbinder was .deliberately indifferent to plaintiffs medical needs by failing to record on his medical screening chart that plaintiff needed to be provided with insulin. The computer generated medical screening chart regarding plaintiff shows that the letter \\\"N\\\" was entered after the question \\\"Continued Prescribed Medication.\\\" Plaintiffs ex. 3. However, plaintiff admits that the booking officer called and advised the clinic that plaintiff was a diabetic in need, of insulin. Aaron dep. at 33. These acts are obviously contradictory. The most that can be said of this incident is that a clerical error was made. There is no showing by plaintiff that the action of defendant Fink-binder was deliberate.\\nSecond, plaintiff appears to fault defendant Draper for not immediately calling him to the clinic as soon as he filled out a sick-call slip. The first sick-call slip is dated November 1, 1989. Draper has testified that she did not see this slip until November 2, 1989, at which time she scheduled plaintiff for a sick call. Draper dep. at 10. Draper took plaintiffs vital signs some three hours after receiving the sick-call slip. Id. at 10-12. Draper did testify that she could have received the slip November 1, 1989; but this was conjecture. Even if Draper had received the note November 1, 1989, plaintiff saw a clinical health specialist the next morning. These actions were reasonably prompt and do not rise to the level of deliberate indifference to plaintiffs medical needs. See Donlan v. Smith, 662 F.Supp. 352, 361 (D.Md.1986) (delay in diabetic prisoner receiving food held not deliberately indifferent), aff'd, 820 F.2d 1219 (4th Cir.1987).\\nThird, plaintiff asserts that defendant Rogers/Jansen demonstrated deliberate indifference to his medical needs by misreading or improperly administering the random blood sugar tests and by not taking appropriate precautionary steps when Rogers/Jansen noted plaintiffs nausea and headaches. The fact- that Rogers/Jansen took action to alleviate plaintiffs condition shows that she was not indifferent to plaintiffs needs. This claim supports a medical malpractice suit and not a suit brought under section 1983 and the eighth amendment. When boiled down, plaintiffs allegations are grounded in negligence and not deliberate indifference. This is evidenced by plaintiffs expert, who has stated that Rogers/Jansen varied from the appropriate standard of care by not taking plaintiffs blood sugar level once more on November 2, 1989. VanRiper aff. at para. 2. As noted in Estelle, a \\\"malpractice [suit] does not become a constitutional violation merely because the victim is a prisoner.\\\" Estelle, 429 U.S. at 106, 97 S.Ct. at 292.\\nFinally, plaintiff has filed suit against Ayer for deliberate indifference to his medical needs by giving plaintiff 50 units of insulin rather than 58 units. Ayer testified that the 50 unit dosage was conveyed to her by plaintiff himself. A discrepancy of eight units is clearly not grounds for an eighth amendment or section 1983 claim of deliberate indifference. The fact that Ayer provided plaintiff with any insulin shows a lack of indifference.\\nUpon the record, deposition testimony, affidavits and exhibits provided, this court can discern neither a cognizable section 1983 or eighth amendment claim nor a genuine issue of material fact favoring denial of summary judgment. Therefore, defendants' motion will be granted.\\nORDER\\nTherefore, it is hereby ORDERED that defendants' motion for summary judgment is GRANTED, and plaintiff's cause of action is DISMISSED with prejudice.\\nSO ORDERED.\\n. It appears that the correct spelling of deputy Finkbinder's first name is \\\"Jeffrey\\\" and that the caption is incorrect.\\n. It appears that the correct spelling is \\\"Rogers/Jansen\\\" and that the caption is incorrect.\"}"
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+"{\"id\": \"7414031\", \"name\": \"MISSISSIPPI VALLEY GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Southern Natural Gas Company, et al., Intervenors\", \"name_abbreviation\": \"Mississippi Valley Gas Co. v. Federal Energy Regulatory Commission\", \"decision_date\": \"1995-10-20\", \"docket_number\": \"No. 94-1486\", \"first_page\": \"503\", \"last_page\": \"510\", \"citations\": \"68 F.3d 503\", \"volume\": \"68\", \"reporter\": \"Federal Reporter 3d Series\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T19:17:55.479212+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: EDWARDS, Chief Judge, SENTELLE and TATEL, Circuit Judges.\", \"parties\": \"MISSISSIPPI VALLEY GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Southern Natural Gas Company, et al., Intervenors.\", \"head_matter\": \"MISSISSIPPI VALLEY GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Southern Natural Gas Company, et al., Intervenors.\\nNo. 94-1486.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued Sept. 14, 1995.\\nDecided Oct. 20, 1995.\\nJ. Michel Marcoux, Washington, DC, argued the cause and filed the briefs for petitioner.\\nKatherine Waldbauer, Federal Energy Regulatory Commission, argued the cause for respondent, with whom Jerome M. Feit, Solicitor, and Joseph S. Davies, Deputy Solicitor, Federal Energy Regulatory Commission, Washington, DC, were on the briefs. Jill L, Hall, Federal Energy Regulatory Commission, entered an appearance.\\nPatrick B. Pope, Deborah L. Dille, Birmingham, AL, and James J. Flood, Jr., Washington, DC, were on the brief for inter-venor Southern Natural Gas Company.\\nEdward J. Grenier, Jr., Washington, DC, entered an appearance for intervenor Georgia Industrial Group. Joel F. Zipp and Paul W. Diehl, Washington, DC, entered appearances for intervenor South Carolina Pipeline Corporation. James W. McTamaghan and Jeffrey D. Komarow, Washington, DC, entered appearances for intervenor Alabama Gas Corporation. John T. Stough, Jr. and Kevin M. Downey, Washington, DC, entered appearances for intervenors Atlanta Gas Light Company and Chattanooga Gas Company. James R. Choukas-Bradley, Washington, DC, entered an appearance for interve-nors Municipal Gas Authority of Georgia, et al. Michael R. Waller, Washington, DC, entered an appearance for intervenor Florida Power Corporation. Frederic G. Berner, Jr. and Nancy Y. Gorman, Washington, DC, entered appearances for intervenor Arcadian Fertilizer, L.P.\\nBefore: EDWARDS, Chief Judge, SENTELLE and TATEL, Circuit Judges.\", \"word_count\": \"3353\", \"char_count\": \"21308\", \"text\": \"Opinion for the Court filed by Chief Judge HARRY T. EDWARDS.\\nHARRY T. EDWARDS, Chief Judge:\\nIn December 1993, the Federal Energy Regulatory Commission (\\\"FERC\\\") approved settlement agreements in several ratemaking cases involving gas transportation rates charged by Southern Natural Gas Company (\\\"Southern\\\") for the period from September 1989 through April 1993. Southern Natural Gas Co., 65 F.E.R.C. \\u00b6 61,348 (1993); Southern Natural Gas Co., 66 F.E.R.C. \\u00b6 61,347 (1993). The settlement agreements provide that rates for part of that period may be determined based on the estimated gas transported (the \\\"throughput\\\"), reduced to reflect gas transported at discounted rates. 65 F.E.R.C. \\u00b6 61,348 at 62,840; 65 F.E.R.C. \\u00b6 61,347 at 62,827.\\nMississippi Valley Gas Company (\\\"MVGC\\\"), a Southern customer, opposed the settlement agreements, and asked FERC to reconsider them in light of the harmful effect of rate discounts and related throughput reductions on captive customers (such as MVGC), who must use gas and can only obtain it from one provider. According to MVGC, discounts granted by Southern to meet competition from other gas pipelines (\\\"gas-on-gas\\\" competition) are inevitably unfair to captive customers and, thus, are both illegal under the Natural Gas Act and inconsistent with FERC regulations and orders. FERC reviewed the settlement agreements and granted additional hearings with respect to some of MVGC's complaints, but dismissed its claim that Southern's throughput reduction for gas-on-gas discounts discriminates against captive customers. Southern Natural Gas Co., 67 F.E.R.C. \\u00b6 61,-156 (1994); Southern Natural Gas Co., 67 F.E.R.C. \\u00b6 61,155 (1994).\\nMVGC promptly petitioned for review, initiating the instant action. Although MVGC undoubtedly was prudent in seeking judicial review, we find that review at this time would be premature, because MVGC may eventually obtain the relief it seeks in the course of the hearings still pending before FERC. Therefore, we dismiss MVGC's appeal as unripe, with the understanding that, if the pending FERC hearings do not grant MVGC full relief from the rate increases attributable to throughput reduction for gas-on-gas discounts, MVGC may challenge Southern's throughput reduction once the final rates have been established by FERC.\\nI. BACKGROUND\\nBetween August 1989 and February 1992, Southern filed three proposed rate revisions (RP89-224, RP90-139, and RP92-134) with FERC to set its gas transportation rates for the period from September 1, 1989 through April 30, 1993. MVGC and other Southern customers contested the proposed changes, and FERC thereafter held hearings on the challenged rates.\\nOn April 30, 1993, after FERC had received several volumes of testimony, but had not yet issued final orders in Southern's rate cases, Southern proposed a settlement of the RP92-134 case. On June 4,1993, an Administrative Law Judge (\\\"ALJ\\\") certified that FERC could accept the settlement because the parties in opposition had raised no genuine issues of material fact to support their claims. Southern Natural Gas Co., 63 F.E.R.C. \\u00b6 63,012 (1993). Southern then proposed a settlement of the RP89-224 and RP90-139 rate eases, and an ALJ certified that FERC could accept this settlement as well.\\nIn December 1993, FERC issued two companion orders addressing Southern's settlement proposals, Southern Natural Gas Co., 65 F.E.R.C. \\u00b6 61,348 (1993), and Southern Natural Gas Co., 65 F.E.R.C. \\u00b6 61,347 (1993). These orders approved modified versions of Southern's settlement proposals, subject to the outcome of evidentiary hearings at which MVGC would have the opportunity to cross-examine Southern's witnesses on certain issues, including the question of whether Southern had improperly granted discounts to affiliated companies. 65 F.E.R.C. \\u00b6 61,-348 at 62,839; 65 F.E.R.C. \\u00b6 61,347 at 62,-833-34.\\nAlthough these orders gave MVGC the possibility of relief on some issues, other concerns presented by MVGC were dismissed, including MVGC's assertion that reduction of Southern's throughput for gas-on-gas discounts was unfair and discriminatory. See 65 F.E.R.C. \\u00b6 61,347 at 62,830 (FERC rejected MVGC's contention that throughput reduction to reflect discounts is improper because it found the claim raised no issue of material fact and was \\\"contrary to Commission policy.\\\"); 65 F.E.R.C. \\u00b6 61,348 at 62,843 (same). MVGC petitioned for review in this court after FERC denied its request for reconsideration of the throughput reduction issue in two companion orders issued in May 1994. Southern Natural Gas Co., 67 F.E.R.C. \\u00b6 61,156 (1994); Southern Natural Gas Co., 67 F.E.R.C. \\u00b6 61,155 (1994).\\nII. DISCUSSION\\nMVGC's complaint that Southern's gas transportation rates under the settlement agreements will be unfair and discriminatory is an attack on an aspect of FERC's practice of permitting gas pipelines to provide discounts to certain customers in order to meet competition. The practice of so-called selective discounting was first permitted by FERC in 1985. See Regulation of Natural Gas Pipelines After Partial Wellhead Decontrol, Order No. 436, 50 Fed.Reg. 42,408, 42,-451 (1985). Under current FERC regulations, a pipeline may implement selective discounting by declaring \\\"a maximum rate and a minimum rate\\\" and charging any non-affiliated customer \\\"any rate that is neither greater than the maximum rate nor less than the minimum rate on file\\\" with FERC. 18 C.F.R. \\u00a7 284.7(d)(5) (1995). This court has reviewed these regulations, and has upheld FERC's authority to permit discounting to meet competition, with the caveat that such permission does not mean that FERC \\\"is free to uphold every price distinction based on different demand elasticities.\\\" Associated Gas Distribs. v. FERC, 824 F.2d 981, 1011 (D.C.Cir.1987), cert. denied, 485 U.S. 1006, 108 S.Ct. 1468, 1469, 99 L.Ed.2d 698 (1988).\\nMVGC contends that discounts to meet gas-on-gas competition are precisely the type of discount that this court would disapprove of under Associated Gas. However, our review of that decision does not lead us to conclude that this court has specifically addressed the legality of gas-on-gas discounts. Associated Gas reviews the general practice of discounting to meet competition and notes that \\\"judicial acceptance of such price differentials is longstanding,\\\" but reserves consideration of the possible discriminatory effect of \\\"rate differentials based exclusively on competition between transporters with similar cost functions,\\\" stating that FERC \\\"may properly defer its ultimate resolution of these issues to another day and another proceeding.\\\" Id. at 1011, 1012. The FERC orders at issue in this ease seem to make it clear that the agency has decided to allow selective discounting to meet gas-on-gas competition. However, because we have determined to dismiss MVGC's petition for review on the ground of ripeness, we defer judgment on MVGC's argument that such a policy is illegally discriminatory.\\nA. Ripeness\\nUnder Section 19(b) of the Natural Gas Act, 15 U.S.C. \\u00a7 717r(b) (1994), any party \\\"aggrieved\\\" by a FERC order may obtain judicial review of that order. In addition, a petitioner \\\"must satisfy the requirements of constitutional standing.\\\" El Paso Natural Gas Co. v. FERC, 50 F.3d 23, 26 (D.C.Cir.1995). Both of these thresholds require that MVGC establish \\\"injury in fact\\\" to a protected interest. Id. (citing Shell Oil Co. v. FERC, 47 F.3d 1186, 1200 (D.C.Cir.1995)). A protected interest is one that is \\\"arguably within the zone of interests to be protected or regulated by FERC under\\\" the applicable statute. Moreau v. FERC, 982 F.2d 556, 564 (D.C.Cir.1993) (internal quotations and alteration omitted). Here, MVGC's standing to petition for review of the FERC orders is uncontested. MVGC has clearly demonstrated \\\"injury in fact\\\" because the FERC orders it challenges affect the rates it will pay Southern, and are directly within the authority conferred upon FERC by the Natural Gas Act. MVGC also meets the remaining criterion for Article III standing because it is likely that its alleged injury could be redressed by a favorable decision from this court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992).\\nIn addition to MVGC's standing, we have been asked by the Commission to consider whether MVGC's petition for review is ripe for this court's consideration. The primary focus of the ripeness doctrine as applied to judicial review of agency action\\nhas been a prudential attempt to time review in a way that balances the petitioner's interest in prompt consideration of allegedly unlawful agency action against the agency's interest in crystallizing its policy before that policy is subjected to judicial review and the court's interests in avoiding unnecessary adjudication and in deciding issues in a concrete setting.\\nEagle-Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985). Under Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), when an agency challenges the ripeness of a petition for review, we assess \\\"both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.\\\" Id. at 149, 87 S.Ct. at 1515.\\nUnder the fitness prong of Abbott Laboratories, we are to consider the nature of the challenged issue and inquire whether the agency action is sufficiently final for review. See id. When a petitioner \\\"raises a purely legal question,\\\" we assume that issue is suitable for judicial review. Eagle-Picher, 759 F.2d at 915. However, our assessment of the finality of the agency action also includes consideration of \\\"whether the agency or the court will benefit from deferring review until the agency's policies have crystallized and the question arises in some more concrete and final form.\\\" Id. (internal quotation omitted); see also Better Gov't Ass'n v. Department of State, 780 F.2d 86, 92 (D.C.Cir.1986).\\nMVGC's challenge is a petition for review of FERC's determination of the legality of ratemaking based on reduction of throughput to reflect gas-on-gas discounts. The orders clearly manifest FERC's acceptance of gas-on-gas discounts and related throughput reduction, and entirely reject MVGC's challenge to such a policy. See 67 F.E.R.C. \\u00b6 61,155 at 61,456 (FERC declared that \\\"to the extent that Southern's discounts are shown to have been required to meet competition, they cannot have been unduly discriminatory\\\" and \\\"[a] discount given in order to meet competition is, by definition, required in order to maximize throughput.\\\"); see also 65 F.E.R.C. \\u00b6 61,347 at 62,833 (FERC rejected MVGC's challenge to Southern's throughput reduction.). Thus, MVGC's petition raises a question of pure law, \\\"the understanding of which neither requires nor is facilitated by further factual development.\\\" Better Gov't, 780 F.2d at 92. We therefore presume that MVGC's petition is ripe for review.\\nAnother concern, however, is that FERC has asked us to defer judgment on the issue raised by MVGC because, in the agency's view, there is still more to be done in connection with the matters now before the court. We are somewhat skeptical of this overture because, normally, where an \\\"agency has stated that the action in question governs and will continue to govern its decisions, such action must be viewed as final.\\\" Better Gov't, 780 F.2d at 93; see also Abbott Laboratories, 387 U.S. at 149-50, 87 S.Ct. at 1515-16. Although it is doubtful that FERC will revisit the throughput reduction issue in the pending hearings, see, e.g., 65 F.E.R.C. \\u00b6 61,348 at 62,843 (stating that MVGC's issues with throughput reduction to reflect discounts \\\"shall not be considered in the remanded proceeding\\\"), FERC nonetheless asks that we refrain from considering MVGC's challenge to the throughput reduction issue at this stage, when the parties are not sure of its practical effect.\\nAlthough it is by no means an easy decision, we find that the circumstances of this case indicate that the issue presented by MVGC is not fit for review at this time. Our decision takes into account the fact that FERC perceives a benefit in such a delay, and the possibility that MVGC will obtain relief from the effect of the FERC orders in the pending hearings. We also note that the future impact of the FERC orders is uncertain at present, and will likely be more clear once Southern's actual rates for the period in question have been finalized. The possible benefit to both FERC and this court counsels in favor of a delay in review of the FERC orders.\\nTherefore, we will declare MVGC's petition unripe unless we find, under the hardship prong of Abbott Laboratories.i that the \\\"immediate and practical impact\\\" of the FERC orders upon MVGC \\\"outweighs the competing institutional interests in deferring review.\\\" Eagle-Picher, 759 F.2d at 915 (internal quotation omitted); see also Papago Tribal Util. Auth. v. FERC, 628 F.2d 235, 240 (D.C.Cir.) (\\\"Only when parties face the prospect of irreparable injury, with no practical means of procuring effective relief after the close of the proceeding, might they be entitled to immediate review of' an agency order that is not otherwise ripe for review.), cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980). Because MVGC's petition concerns rates for a past rate period, the FERC orders do not currently impact MVGC. MVGC will be able to obtain relief from their impact in its eventual challenge to Southern's final rates, should it decide to bring one. Mere delay in obtaining relief from the past rates does not suffice to establish that the FERC orders have an immediate impact on MVGC. See Transcontinental Gas Pipe Line Corp. v. FERC, 866 F.2d 477, 481 (D.C.Cir.1989) (The court found no irreparable injury to justify immediate judicial review in the absence of any indication that petitioner's interests would be \\\"inadequately protected by judicial review following an adverse determination.\\\"). Thus, we do not find that the hardship MVGC might suffer from a delay in review of its petition outweighs the institutional concerns in deferring review until after the pending FERC hearings have been completed. See Toilet Goods Ass'n v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967) (The Court denied immediate review of an agency regulation where the impact was not felt \\\"immediately\\\" in \\\"day-to-day affairs\\\" and there were \\\"no irremediable adverse consequences\\\" from delaying review.); Better Gov't, 780 F.2d at 93 (The court found \\\"direct and immediate\\\" impact from agency action where the primary conduct of petitioners was immediately affected.).\\nUpon balancing the considerations set forth in Abbott Laboratories, we dismiss MVGC's petition as unripe. Provided MVGC is still aggrieved by FERC's throughput reduction policy as applied to the rates at issue in this case, MVGC may petition this court for a review of FERC's actions when the ratemaking is finalized, and this court shall then have jurisdiction to review the entire proceeding, including FERC's consideration of the throughput reduction issue. Whether MVGC will have standing if the remaining FERC proceedings alleviate the entire economic impact of Southern's throughput reduction for the period in question is not certain. It is possible that even if MVGC ultimately suffers no direct harm from the FERC orders, MVGC will still have standing to bring a facial challenge to the FERC orders because MVGC will continue to be aggrieved in future ratemaking by the throughput reduction policy they establish. See, e.g., City of Houston v. HUD, 24 F.3d 1421, 1428 (D.C.Cir.1994) (\\\"It is well-established that if a plaintiff challenges both a specific agency action and the policy that underlies that action, the challenge to the policy is not necessarily mooted merely be cause the challenge to the particular agency action is moot.\\\"); Better Gov't, 780 F.2d at 91-92 (The court found a facial challenge to agency action was not moot even though immediate harm from the action had been alleviated by subsequent agency action.). However, we need not resolve this question of standing at the present time.\\nB. Prudent Case Processing\\nThe ripeness issue poses a very close question in this case, and the result that we have reached does not come easily. We also acknowledge that MVGC faced a terrible dilemma in having to decide when to seek review of the FERC orders. If MVGC had not filed the instant petition (on the assumption that review would still be available upon completion of all related proceedings before FERC), it faced the risk that the claim would be deemed time-barred and therefore dismissed. See Eagle-Picher, 759 F.2d at 909 (\\\"[Petitioners who delay filing requests for review on their own assessment of when an issue is ripe for review do so at the risk of finding their claims time-barred.\\\"). Thus, it is not surprising that MVGC decided to avoid this risk. However, having acted prudently and filed this petition, it faces dismissal on grounds of ripeness. This is an unfortunate situation.\\nOn the other hand, FERC's actions in this case leave something to be desired. The agency should have promptly recognized the ripeness issue and then filed a motion to dismiss in a timely fashion. This would have expedited consideration of the ripeness issue and conserved the resources of the court, FERC, MVGC, and intervenors, by avoiding the necessity of full briefing and oral argument. FERC and other agencies are well advised to file such motions in the future so as to avoid the dilemma seen in this case.\\nIII. CONCLUSION\\nBecause we find the petition for review to be unripe, it is hereby dismissed without prejudice.\\nSo ordered.\\n. FERC does not dispute that for the period at issue in this case, MVGC was a captive customer of Southern.\\n. Natural Gas Act \\u00a7 4, 15 U.S.C. \\u00a7 717c (1994), provides:\\n(a) Just and reasonable rates and charges All rates and charges made, demanded, or received by any natural-gas company for or in connection with the transportation or sale of natural gas subject to the jurisdiction of the Commission, and all rules and regulations affecting or pertaining to such rates or charges, shall be just and reasonable, and any such rate or charge that is not just and reasonable is declared to be unlawful.\\n(b) Undue preferences and unreasonable rates and charges prohibited\\nNo natural-gas company shall, with respect to any transportation or sale of natural gas subject to the jurisdiction of the Commission . make or grant any undue preference or advantage to any person or subject any person to any undue prejudice or disadvantage. .\\n. These hearings have recently been held in abeyance pending FERC's review of a settlement proposal filed by Southern to resolve these and other rate cases. Southern Natural Gas Co., 70 F.E.R.C. \\u00b6 61,340 (1995).\\n. In City of Houston v. HUD, 24 F.3d 1421, 1431 n. 9 (D.C.Cir.1994), we noted that:\\nUnder the ripeness doctrine, the \\\"hardship\\\" prong of the Abbott Laboratories test is not an independent requirement divorced from the consideration of the institutional interests of the court and agency. Payne Enters. v. United States, 837 F.2d 486, 493 (D.C.Cir.1988). Thus, where there are no institutional interests favoring postponement of review, a petitioner need not satisfy the hardship prong. See, e.g., Consolidated Rail Corp. v. United States, 896 F.2d 574, 577 (D.C.Cir.1990). Where, as in this case, there are strong interests militating in favor of postponement, we must weigh the potential hardship of delay on the appellant.\"}"
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+"{\"id\": \"7818764\", \"name\": \"David J. DITTMANN, Plaintiff, v. IRECO, INC., Defendant\", \"name_abbreviation\": \"Dittmann v. Ireco, Inc.\", \"decision_date\": \"1995-11-07\", \"docket_number\": \"No. 92-CV-625\", \"first_page\": \"347\", \"last_page\": \"353\", \"citations\": \"903 F. Supp. 347\", \"volume\": \"903\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the Northern District of New York\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:45:54.926667+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"David J. DITTMANN, Plaintiff, v. IRECO, INC., Defendant.\", \"head_matter\": \"David J. DITTMANN, Plaintiff, v. IRECO, INC., Defendant.\\nNo. 92-CV-625.\\nUnited States District Court, N.D. New York.\\nNov. 7, 1995.\\nMichael T. Wallender, Albany, NY, for Plaintiff.\\nRyan, Orlando & Smallacombe, LLP (Claudia A. Ryan, Philip J. Iovieno, of counsel), Albany, NY, for Defendant.\", \"word_count\": \"4310\", \"char_count\": \"26908\", \"text\": \"MEMORANDUM-DECISION and ORDER\\nHURD, United States Magistrate Judge.\\nPresently before the court are plaintiffs motion for partial summary judgment on his claim for liquidated damages, and defendant's cross-motion for partial summary judgment dismissing that same claim. Opposition to both motions were filed by the parties. Oral argument was heard on October 12, 1995.\\nPROCEDURAL HISTORY and FACTS\\nThis is an action commenced pursuant to the Age Discrimination in Employment Act (\\\"ADEA\\\"), 29 U.S.C. \\u00a7 621-34. On April 20, 1995, this court granted partial summary judgment for the plaintiff on the issue of liability, finding that defendant Ireco, Inc. (\\\"Ireco\\\") intentionally discriminated against the plaintiff on the basis of his age. Ditt- mann v. Ireco, 883 F.Supp. 807 (N.D.N.Y.1995). The issue now before the court is whether that decision requires a finding that the intentional discrimination was willful as a matter of law, entitling plaintiff to liquidated damages.\\nThe court previously found that circumstantial evidence established plaintiffs prima facie case, and therefore created a presumption of unlawful discrimination. The defendant then proffered the reorganization and coincident elimination of plaintiffs position as the legitimate reason for plaintiffs termination. At that time, defendant never claimed that it consulted with counsel about ADEA ramifications. Nor did it claim that if it did violate the ADEA, such a violation was unintentional. The court found the proffered reason to be pretextual because the reorganization created a position for which plaintiff was fully qualified, and defendant failed to offer that position to plaintiff at the time of his termination. Moreover, the court found that the offer of a noncomparable position in Missouri, a form letter signed by plaintiff referring to \\\"resignation,\\\" acceptance of a severance package after the termination, and rejection of the new position months before it was even created were insufficient to refute defendant's intentional discrimination. Familiarity with the detailed facts as set forth in the April 20, 1995, Memorandum-Decision and Order is assumed. Id.\\nDISCUSSION\\nI. Summary Judgment Standard\\nSummary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.1991). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir.1983).\\nWhen the moving party has met the burden, the nonmoving party \\\"must do more than simply show that there is some metaphysical doubt as to the material facts.\\\" Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. at 1355. At that point, the non-moving party \\\"must set forth specific facts showing that there is a genuine issue for trial.\\\" Fed.R.Civ.P. 56; Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. at 2511; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-49, 106 S.Ct. at 2510-11; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356. Thus, summary judgment is proper where there is \\\"little or no evidence . in support of the nonmoving party's case.\\\" Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir.1994) (citations omitted).\\nII. Willful Violation of the ADEA\\nThe ADEA provides that willful violations of the act will subject the employer to liability for liquidated damages. 29 U.S.C.A. \\u00a7 626(b) (1985). A violation is willful where the employer \\\"knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.\\\" Hazen Paper Co. v. Biggins, 507 U.S. 604, -, 113 S.Ct. 1701, 1710, 123 L.Ed.2d 338 (1993) (reaffirming the definition of willful set forth in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126, 105 S.Ct. 613, 624, 83 L.Ed.2d 523 (1985)). The \\\"knowledge or reckless disregard\\\" standard applies to all disparate treatment cases under the ADEA, whether proven by direct or circumstantial evidence. Id. Because liquidated damages are punitive in nature, where there is evi dence that the defendant acted in good faith liquidated damages will not be assessed. Pierce v. F.R. Triplet & Co., 955 F.2d 820, 826 (2d Cir.1992); Benjamin v. United Merchants and Mfrs., Inc., 873 F.2d 41, 45 (2d Cir.1989). Thus, once an employer is found to have intentionally discriminated against an employee in violation of the ADEA, it may avoid a finding of willfulness if it shows that it acted in good faith and nonrecklessly. However, under such circumstances, this defense is not broad and all encompassing. The Supreme Court recognizes only three acts of \\\"good faith and nonrecklessness\\\" which may save the employer from liquidated damages. Specifically: (1) the employer was ignorant of the correlation between the selection mechanism and age; (2) the employer believed that age was a bona fide occupational qualification (\\\"BFOQ\\\"); and (3) the employer believed the employee was not covered by the ADEA. Hazen Paper Co., 507 U.S. at -, 113 S.Ct. at 1709; Pierce, 955 F.2d at 826; Hagelthorn v. Kennecott Corp., 710 F.2d 76, 84 (1983). Thus, the \\\"good faith and nonreckless\\\" exceptions which apply in a disparate treatment case such as this one have been narrowly defined to include only (1) BFOQ, or (2) exemption from ADEA protection.\\nUnlike its opposition to plaintiffs original motion for summary judgment, the defendants now raise broad and sweeping claims of \\\"good faith and nonreckless\\\" behavior in that it consulted with its attorneys before implementing the reorganization plan and discharging the plaintiff. This is insufficient, however, because the defendant has raised no issues of fact that it acted in \\\"good faith\\\" because of one of the particular two reasons set forth above which apply in disparate treatment cases such as this.\\nIn the instant case the court found that the defendant employer intentionally discriminated against the plaintiff on the basis of his age in violation of the ADEA. Defendant now admits it was well aware that discharging a protected employee on the basis of age would violate the ADEA. Since the defendant knew that age discrimination violates the ADEA, and the defendant intentionally discriminated on the basis of age, it follows that the defendant knowingly and willfully violated the ADEA. See Hazen Paper Co., 507 U.S. at -, 113 S.Ct. at 1710 (employer who \\\"knew . its conduct was prohibited\\\" acted willfully). Therefore, the defendant will be liable for liquidated damages unless it shows that the discriminating conduct was in good faith and nonreckless. See id. (\\\"It would be a wholly circular and self-defeating interpretation of the ADEA to hold that, in cases where an employer more likely knows its conduct to be illegal, knowledge alone does not suffice for liquidated damages.\\\"); Pierce, 955 F.2d at 826 (where an employer intentionally denied plaintiff a promotion because of his age and the employer knew that to do so violated the ADEA, the employer \\\"knew . its conduct was prohibited by the ADEA\\\" and a finding of willfulness was proper) (quoting Thurston, 469 U.S. at 126, 105 S.Ct. at 624).\\nIn Pierce, the plaintiff, a protected employee, was terminated when his position was eliminated due to a reorganization and reduction in force. 955 F.2d at 823. The discrimination claim flowed from the employer's failure to promote plaintiff to a position, General Manager, which was open and available at the time of the discharge. Id. Defendant argued in its motion for judgment notwithstanding the verdict that plaintiff failed to formally apply for the position when it was open, therefore defeating his prima facie case. Id. at 824. The court found that there was evidence to support the jury's finding of intentional discrimination. Id. at 825.\\nThe defendant in Pierce also argued that the trial court's charge to the jury as to willfulness was deficient in failing to include an instruction permitting consideration of de fendant's good faith. Id. at 825-26. The Second Circuit upheld the charge, reasoning that: (1) ignorance of the correlation between the selection mechanism and age could not be claimed because the case was not a disparate impact case; (2) BFOQ was not claimed; and (3) defendant did not claim that it believed that plaintiff was not covered by the ADEA. Id. at 826. The court found that the defendant presented \\\"no evidence in support of a particular theory of [its] case\\\" and it therefore was not entitled to a jury instruction on that theory. Id.\\nThe facts of the Pierce case are strikingly similar to the facts of the case at bar. Both plaintiffs proved their prima facie case with indirect, circumstantial evidence. Neither defendant argued that their case was a disparate impact case, that age was a BFOQ, or that it believed the plaintiff was exempt from coverage by the ADEA. Neither defendant presented evidence to support a theory that its conduct was \\\"in good faith and nonreckless,\\\" as narrowly defined by the Supreme Court and the Second Circuit. Following the Second Circuit's reasoning in Pierce, the plaintiff in this case proved intentional discrimination, and that the defendant knew that to do so would violate the ADEA. The defendant failed to show that its conduct was in good faith and nonreckless, or in other words nonwillful. Therefore, defendant's conduct was willful as a matter of law, and liquidated damages must be assessed.\\nDefendant first argues that a finding of willfulness as a matter of law in this case would defeat Congress' two-tiered scheme of liability. This argument fails, however, because as the Supreme Court said in Hazen Paper Co., the ADEA \\\"provides for liquidated damages where the violation was \\\"willful,' \\\" not \\\" \\\"where consistent with the principle of a two-tiered liability scheme.' \\\" 507 U.S. -, 113 S.Ct. at 1709. The Hazen Paper Co. Court went on to explain that not all intentional violations would result in liquidated damages because where the employer acted in \\\"good faith and nonrecklessly,\\\" liquidated damages should not be imposed. Id. As noted above, this good faith and nonreckless exception or excuse is limited to three situations, none of which apply to this case, nor does the defendant argue that those situations apply here. Furthermore, the Court noted that \\\"an employer's reluctance to acknowledge its reliance on the forbidden factor should not cut against imposing a penal ty.\\\" Id., 507 U.S. at -, 113 S.Ct. at 1709-10.\\nThe defendant cites several cases in support of its proposition that because it consulted its attorneys regarding the legality of the reorganization plan, it acted in good faith and nonrecklessly. The court notes that the defendant, for the first time, asserts that its attorneys opined that the reorganization plan and the discharge of plaintiff were lawful prior to action being taken to implement the plan, and that to reoffer the Manufacturing Manager position at that time was unnecessary. This last minute assertion leads the court to infer that this is a \\\"post hoc rationalization\\\" meant to avoid a finding of willfulness. See Benjamin, 873 F.2d at 44-45. However, assuming arguendo that the assertion is legitimate, the cases cited by defendant are distinguishable on the facts. Moreover, defendant has failed to meet its burden of setting forth facts which create an issue for a trier of fact, as discussed below.\\nIn Thurston, the Court reversed the lower court's finding that an intentional violation of the ADEA was willful. 469 U.S. at 130, 105 S.Ct. at 626. The Court relied, in part, on the employer's consultation with attorneys to determine if the policy in question complied with the ADEA. Id. at 129, 105 S.Ct. at 625. However, in Thurston, unlike the case at bar, the policy was facially discriminatory, requiring pilots to retire at age 60, and the defendant argued that age was a BFOQ and the retirement policy was a bona fide seniority system exempt from the ADEA. Id. at 122, 105 S.Ct. at 622. Thus, the Court found that although mistaken about the BFOQ and the exemption, the employer had acted in good faith and nonrecklessly in attempting to assure that the policy complied with the ADEA. Id. at 129, 105 S.Ct. at 625. Belief in BFOQ or that the plan is exempt from ADEA coverage are two specific \\\"good faith and nonreckless\\\" exceptions.\\nHere there is no argument that age was a BFOQ, or that the reorganization plan was in some way exempt from the ADEA. Quite to the contrary, defendant now admits that it knew that the reorganization plan could violate the ADEA and sought legal counsel to determine if the plan would comply with or violate the ADEA Moreover, the court previously found that the reorganization plan was merely a pretext, and not a legitimate reason for plaintiffs termination. Thus, there was no finding that it was the reorganization plan itself which violated the ADEA. Even if the plan itself had violated the ADEA, a finding that defendant in good faith attempted to determine that the plan complied with the ADEA and mistakenly believed in that compliance would not result in a finding of nonwillfulness in this case. This is so because unlike Thurston, the plan itself did not result in the discriminatory conduct, i.e., the discharge of the plaintiff \\u2014 the plan resulted in the elimination of plaintiffs position and the creation of a vacant position for which plaintiff was well qualified.\\nSimilarly, in Hysell v. Mercantile Stores Co., 736 F.Supp. 457 (S.D.N.Y.1989), the employer argued that plaintiff was a bona fide executive and therefore exempt from the ADEA. Id. at 458. In granting partial summary judgment for the defendant on the lack of willfulness, the court referred to a five page letter similar to a memorandum of law written by the employer's counsel applying the law to the facts to support his opinion that the plaintiff was a bona fide executive. Id. at 460-61. This belief was a recognized and legitimate \\\"good faith and nonreckless\\\" defense. Again, in this case there is no contention that defendant mistakenly believed that plaintiff was exempt from the ADEA.\\nLikewise, in Peterson v. Insurance Co. of North America, 40 F.3d 26 (2d Cir.1994), the court found that it was error to refuse permission to amend a complaint to allege a nonwillful violation of the ADEA in a constructive discharge. Id. at 32. The defendant there argued that a constructive discharge was inherently intentional so that it would be \\\"incongruous to allege non-willful discrimination.\\\" Rejecting this argument, the court reasoned that a constructive discharge did not necessarily constitute a willful violation of the ADEA. Id. The Second Circuit reiterated the \\\"knowledge or reckless disregard\\\" standard set forth in Thurston. Id. at 31-32. Thus, Peterson stands for the proposition that in a constructive discharge case, an intentional violation of the ADEA may be willful or non-willful as determined pursuant to the \\\"knowledge or reckless disregard\\\" standard. The case presently before the court is not a constructive discharge case, so that Peterson does not directly apply to the facts of this ease. Moreover, the willfulness standard set forth in Peterson is no different than the willfulness standard applied herein.\\nDefendant, also for the first time, argues that because a Mr. Elston, Senior Vice President of Manufacturing, testified that he inquired as to the age and length of service of each employee affected by the reorganization, and further consulted with attorneys to assure that the reorganization plan and failure to offer plaintiff an available position, would not violate the ADEA, the intentional discrimination was not willful as a matter of law. This argument also fails. This court has previously held as a matter of law that the reorganization plan and coincident elimination of plaintiffs Production Manager position were pretexts for intentional discrimination in discharging plaintiff and not offering him the available position. Thus, at this point, belated claims of prior attempts by defendant to evaluate and determine whether its reorganization plan violated the ADEA do not affect whether the intentional discrimination was willful.\\nThe mere consultation with attorneys regarding the age and length of service of those affected by the reorganization plan does not show that the violation of the ADEA was not willful. The plan itself did not violate the ADEA. Certainly the attorneys were not approached for an opinion after being told that plaintiff would be terminated because of his age. The defendant has never admitted that it discharged plaintiff because of his age. Rather, this was a case where the plaintiff proved intentional discrimination by circumstantial evidence. It is a classic case of the type which led the Hazen Paper Co. Court to find that plaintiffs in such cases need not make any additional showing beyond intentional discrimination to prevail in a willful violation claim. See 507 U.S. at -, 113 S.Ct. at 1709 (rejecting requirements of direct evidence of discrimination, outrageous conduct, predominant rather than determinative factor). Once the plaintiff has overcome this burden, as he has done in this ease, the defendant must come forward with some evidence of \\\"good faith and nonreckless\\\" behavior. The ultimate burden of proof rests, of course, with the plaintiff. But, if the defendant fails to come forward with evidence showing \\\"good faith and nonreckless\\\" behavior within the narrow confines as set forth by the Supreme Court and the Second Circuit, then there is no issue of fact to be tried.\\nCONCLUSION\\nIn opposition to this motion, defendant did not put forth any evidence for a jury to consider that its intentional discrimination against the plaintiff was because of one or more of the two \\\"good faith and nonreckless\\\" excuses in a disparate treatment case as defined in Hazen Paper Co. and Pierce. Therefore, it has failed to raise a genuine issue of material fact to defeat plaintiffs motion. A grant of summary judgment in a discrimination case on the issue of liability, and in particular the issue of liability for liquidated damages, is unusual, and from this court's research, unprecedented. However, this court's previous decision, in combination with the Supreme Court's Hazen Paper Co. decision, the Second Circuit's Pierce decision, and the defendant's failure to raise any issue of fact regarding a recognized or legitimate \\\"good faith and nonreckless\\\" defense, compels a finding that defendant willfully discriminated against the plaintiff on the basis of his age in violation of the ADEA. See Pierce, 955 F.2d at 826 (\\\"Where a party presents no evidence to support a particular theory of his case, he has no right to a jury instruction on that point.\\\"). The plaintiff is therefore entitled to judgment as a matter of law on the issue of willful violation of the ADEA and to liquidated damages.\\nAccordingly, it is hereby\\nORDERED, that\\n1. Plaintiff's motion for partial summary judgment for liquidated damages is GRANTED; and\\n2. Defendant's cross-motion for partial summary judgment dismissing the claim for liquidated damages is DENIED.\\n. This is a disparate treatment case.\\n. This would generally be applicable in a disparate impact case.\\n. For example, the ADEA exempts bona fide executives, 29 U.S.C. \\u00a7 631(c), and those affected by bona fide seniority systems, \\u00a7 623(f)(2), from its protection.\\n. Although Hagelthom was decided prior to the Supreme Court's decisions in Thurston and Hazen Paper Co., the Second Circuit followed the \\\"knowing or reckless disregard\\\" standard later set forth by the Supreme Court. See Hagelthorn, 710 F.2d at 84.\\n. The mandatory nature of assessment of liquidated damages upon a finding of willful violation is set forth in the pattern jury instruction, as follows:\\nIf you find that the defendant's violation of the ADEA was \\\"willful,\\\" you must award the plaintiff liquidated damages \\u2014 that is, an amount equal to the lost wages and benefits you award. Liquidated damages must be awarded to the plaintiff in addition to the lost wages and benefits he receives.\\n4 Leonard B. Sand, et al., Modern Federal Jury Instructions \\u00b6 88.02, Instr. 88-39, at 88-154 (1995) (emphasis added); see also 29 U.S.C. \\u00a7 626(b) (\\\"liquidated damages shall be payable only in cases of willful violations\\\" of the ADEA) (emphasis added). Note that in other civil rights cases, where punitive damages are statutorily permitted, upon a finding of wanton and reckless conduct the juiy has discretion to award punitive damages and to set the amount of such damages. See 3 Sand, supra \\u00b6 77.01, Instr. 77-5, at 77-30.\\n. The Hazen Paper Co. Court defined these situations narrowly, as follows:\\nIt is not true that an employer who knowingly relies on age in reaching its decision invariably commits a knowing or reckless violation of the ADEA. The ADEA is not an unqualified prohibition on the use of age in employment decisions, but affords the employer a \\\"bona fide occupational qualification\\\" defense, see 29 U.S.C. \\u00a7 623(f)(1), and exempts certain subject matters and persons, see, e.g., \\u00a7 623(f)(2) (exemption for bona fide seniority systems and employee benefit plans); \\u00a7 631(c) (exemption for bona fide executives and high policymakers). If an employer incorrectly but in good faith and nonrecklessly believes that the statute permits a particular age-based decision, then liquidated damages should not be imposed. Indeed, in Thurston itself we upheld liability but reversed an award of liquidated damages because the employer \\\"acted [nonrecklessly] and in good faith in attempting to determine whether [its] plan would violate the ADEA.\\\"\\nId. Despite overwhelming circumstantial evidence presented to the contrary, defendant has always maintained that his age had nothing whatsoever to do with the plaintiff's discharge. It has never claimed that it relied on plaintiff's age in reaching its decision to fire him. It denies that it made an \\\"age based decision\\\" to discharge the plaintiff, whether permissible or not under ADEA. Therefore, it is difficult to understand how the defendant can now claim it acted \\\"incorrectly but in good faith and nonrecklessly\\\" in making a decision it claims it never made.\\n. In opposition to plaintiff's previous summary judgment motion, defendant argued that plaintiff voluntarily resigned. In support, the defendant submitted selected pages from depositions and the trial transcript in a similar case, Rose v. Ireco, 872 F.Supp. 1127 (N.D.N.Y.1995). The argument was based primarily upon three factors: (1) plaintiff rejected the offer of Manufacturing Manager position in January 1990; (2) plaintiff rejected a transfer to Missouri at a 37% reduction in pay; and (3) plaintiff accepted a severance package after his termination. This court, however, rejected that argument and found that plaintiff was discharged as a matter of law. See Dittmann, 883 F.Supp. at 812-14. Thus, the court found that the adverse employment action element of plaintiff's prima facie case was met. Interestingly, defendant now has submitted affidavits from both Nowlen and Walter Elston (\\\"Elston\\\"), Senior Vice President of Manufacturing, in which they testify that they believed to offer plaintiff the Manufacturing Manager position in August after he rejected it in January (before it was created) would be unnecessary and ludicrous. Essentially, defendant previously argued that rejection of the position in January defeated plaintiff's prima facie case of intentional discrimination; now defendant argues that the rejection defeats a finding of willful discrimination. Use of the same argument, first to defeat a finding of \\\"intentional\\\" conduct, and then to defeat a finding of \\\"willful\\\" conduct, supports a conclusion that defendant's intentional conduct was indeed willful.\\nAdditionally, among the selected testimony submitted by defendant in support of the previous motion was a portion of the deposition of Nowlen. (See Aff.Opp'n filed 2/16/95 Ex. 18.) At page 105, line 20, the following appears:\\nQ: Was there any consideration given to retaining Mr. Dittman [sic] at the Port Ewen facility in any other position?\\nA: No.\\nQ: Why was that?\\nId. In support of the present motion the entire transcript was submitted. (See Notice of Cross-Motion Ex. B.) Significantly, Nowlen's testimony continues at page 106, line 1:\\nA: We didn't have an opening for him.\\nId. This testimony indicates that there was no open, available position for which plaintiff was qualified. Therefore, it directly refutes defendant's current assertion that it was the prior rejection of the position which was the reason for plaintiff's termination. These inconsistencies in testimony could give rise to an inference that the latter was an after-the-fact invention to avoid a finding that defendant's conduct was willful.\\nIn any case, defendant's current arguments realistically go to intentional versus unintentional conduct, an issue previously decided, rather than toward the willfulness of its conduct. See supra notes 1-3 and accompanying text (delineating the three situations where a finding of non-willful conduct may be made, as narrowly defined by the Supreme Court in Hazen Paper Co.). Further, that the defendant continues to argue that its conduct was not intentional, and in fact that it did not discriminate based upon plaintiff's age, must not be held against the plaintiff when determining whether defendant's conduct was willful. See Hazen Paper Co., 507 U.S. at -, 113 S.Ct. at 1709-10.\\n. Again, no claim is made by the defendant that it was ignorant of the correlation between the selection mechanism and age (disparate impact case), believed age was a BFOQ, or believed that plaintiff was not covered by ADEA.\"}"
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+"{\"id\": \"7845535\", \"name\": \"CROWN CORK & SEAL COMPANY, INC. and Clark Equipment Company, Plaintiffs, v. John C. DOCKERY, et al., Defendants\", \"name_abbreviation\": \"Crown Cork & Seal Co. v. Dockery\", \"decision_date\": \"1995-02-07\", \"docket_number\": \"No. 3:92CV00744\", \"first_page\": \"1253\", \"last_page\": \"1261\", \"citations\": \"886 F. Supp. 1253\", \"volume\": \"886\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the Middle District of North Carolina\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:42:03.410490+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CROWN CORK & SEAL COMPANY, INC. and Clark Equipment Company, Plaintiffs, v. John C. DOCKERY, et al., Defendants.\", \"head_matter\": \"CROWN CORK & SEAL COMPANY, INC. and Clark Equipment Company, Plaintiffs, v. John C. DOCKERY, et al., Defendants.\\nNo. 3:92CV00744.\\nUnited States District Court, M.D. North Carolina, Rockingham Division.\\nFeb. 7, 1995.\\nRobert J. Morris, Thomas N. Barefoot, Raleigh, Daniel W. Fouts, Greensboro, NC, for plaintiffs.\\nP. Wayne Robbins, Pinehurst, NC, Walter E. Brock, Jr., L. Neal Ellis, Jr., Elizabeth M. Powell, John Lewis Shaw, Raleigh, NC, R. Thompson Wright, Greensboro, NC, for defendants.\", \"word_count\": \"4241\", \"char_count\": \"26666\", \"text\": \"MEMORANDUM OPINION\\nTILLEY, District Judge.\\nThis action arises out of the Comprehensive Environmental Response, Compensation, and Liability Act (\\\"CERCLA\\\"). Specifically, Plaintiffs, Crown Cork & Seal Company, Inc. (\\\"Crown Cork\\\") and Clark Equipment Company (\\\"Clark\\\") have brought this action seeking, inter alia, contribution for response costs incurred by them and paid to the United States and a declaratory judgment that each defendant is jointly and severally liable to Plaintiffs for future necessary response costs. Defendants are some twenty parties, including (1) current owner-operators of the sites and (2) parties alleged to have arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment of hazardous substances. Defendants Deytens Shipyards, Inc. (\\\"Detyens\\\"), Braswell Services Group, Inc. (\\\"Braswell\\\"), and Tom Parsell Chevrolet, Inc. (\\\"Parsell\\\") have each filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6). For the reasons that follow, it is determined that this Court does not have personal jurisdiction over these defendants and the claims against each will be transferred to the United States District Court for the District of South Carolina.\\nI.\\nThe facts, stated in a light most favorable to Plaintiffs, are as follows: during the mid-1970's and early 1980's, two parcels of real property in Richmond County, North Carolina, a sixteen (16) acre parcel located 1.6 miles southwest of Cordova (\\\"Macon site\\\") and a one (1) acre parcel of real property located nearly adjacent to the Macon site (\\\"Dockery site\\\") were used as waste disposal and oil recycling facilities. Waste oil, used solvents, and numerous other chemical wastes were delivered to the Macon and Dockery sites for treatment, processing, disposal, and recycling. In late 1983 and early 1984, the Environmental Protection Agency (\\\"EPA\\\"), pursuant to CERCLA initiated removal actions in which it removed hazardous substances from both the Macon and Dockery sites. In 1986, the United States instituted a civil action against Crown Cork and Clark, alleging that there were continued and threatened releases of hazardous substances at the Macon and Dockery sites and that Crown Cork and Clark were liable under CERCLA for the response costs. In 1988, Crown Cork and Clark entered into an Administrative Order By Consent with the EPA in which both Crown Cork and Clark agreed to perform a Remedial Investigation and Feasibility Study (\\\"RI/FS\\\") of the Macon and Dockery sites. Crown Cork and Clark also agreed to reimburse the EPA for oversight of the RI/FS. As a result of the RI/ FS, Crown Cork and Clark allegedly incurred necessary response costs consistent with the National Contingency Plan (\\\"NCP\\\").\\nEventually, in 1989, Crown Cork and Clark, along with twelve other parties entered into a Consent Decree with the United States for all response costs incurred at the Macon and Dockery sites. Under the terms of the Consent Decree, Crown Cork and Clark each agreed to pay $600,000. Both Crown Cork and Clark have complied with the Consent Decree.\\nIn 1992, the EPA issued a Unilateral Administrative Order to Crown Cork and Clark which required, inter alia, the performance of remedial design and remedial action (\\\"RD/RA\\\") at the Macon and Dockery sites consistent with the NCP and under EPA oversight. Crown Cork and Clark allegedly incurred costs and will continue to incur costs for performance of the RD/RA.\\nCrown Cork and Clark now seek contribution, pursuant to CERCLA, from some twenty defendants for their status as either (1) current owner-operators of the sites or (2) parties who allegedly arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment of hazardous substances. Specifically, Crown Cork and Clark seek contribution under 42 U.S.C. \\u00a7 9613(f) for the costs incurred in compliance with the Consent Decree. In addition, Crown Cork and Clark seek to recover the RI/FS and RD/RA response costs pursuant to 42 U.S.C. \\u00a7 9607(a). Finally, pursuant to 42 U.S.C. \\u00a7 9613(g)(2), Crown Cork and Clark seek a declaratory judgment against all Defendants holding that each Defendant is jointly and severally liable to pay all of Plaintiffs' future necessary response costs consistent with the NCP.\\nDefendants Detyens, Braswell, and Parsell have each filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2). Specifically, each moving Defendant asserts that Crown Cork and Clark have not shown that moving Defendants purposefully directed any activity toward North Carolina such that sufficient minimum contacts exist between moving Defendants and North Carolina. In support of their position, each moving Defendant has submitted affidavits from the presidents of its respective corporations. These affidavits assert that the corporations were organized under the laws of South Carolina, that they have no offices or agents in North Carolina, that they do not and have not engaged in any business in North Carolina, and that they do not maintain any bank accounts, real estate, or other property in North Carolina.\\nII.\\nWhen the Court's personal jurisdiction is challenged under Rule 12(b)(2), the plaintiff has the ultimate burden to prove the existence of jurisdiction by a preponderance of the evidence. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). In determining a motion to dismiss for lack of personal jurisdiction, the Court may either determine the motion on the basis of the pleadings and affidavits, postpone the decision and allow discovery, or hold an evidentiary hearing. See Rich v. KIS California, Inc., 121 F.R.D. 254, 259 (M.D.N.C.1988); see also Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2nd Cir.1981); see also Combs, 886 F.2d at 676. When the Court addresses the issue of personal jurisdiction on the basis of only the motion papers, legal memoranda, and the relevant allegations of a complaint, the plaintiff must only prove a prima facie case of personal jurisdiction. See Combs, 886 F.2d at 676; see also Dowless v. Warren-Rupp Houdailles, Inc., 800 F.2d 1305, 1307 (4th Cir.1986); see also Rich, 121 F.R.D. at 259. In determining whether the plaintiff has established a prima facie case of personal jurisdiction, the Court must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction. See Combs, 886 F.2d at 676; see also Wolf v. Richmond County Hosp. Auth, 745 F.2d 904, 908 (4th Cir.1984), cert. denied, 474 U.S. 826, 106 S.Ct. 83, 88 L.Ed.2d 68 (1985).\\nThe question of personal jurisdiction is answered through a two-step analysis. The court must determine whether the state's statutory authority confers jurisdiction, and if so, whether an exercise of jurisdiction complies with the federal constitutional standards of due process. See Dowless, 800 F.2d at 1306; see also Vishay Intertechnology, Inc. v. Delta Int'l Corp., 696 F.2d 1062, 1064 (4th Cir.1982).\\nIn addressing the first step, the statutory authority for personal jurisdiction in North Carolina is contained in the long-arm statute, North Carolina General Statues \\u00a7 1-75.4. A clear mandate exists that the North Carolina long-arm statute be given a liberal construction, making available to the North Carolina courts \\\"the full jurisdictional powers permissible under federal due process.\\\" See Vi-shay, 696 F.2d at 1065 (quoting Dillon v. Numismatic Funding Corp., 291 N.C. 674, 231 S.E.2d 629, 630 (1977)).\\nThe long-arm statute provides that the courts of North Carolina have jurisdiction over \\\"any action claiming injury to person or property within this State arising out of an act or omission outside this State by the defendant, provided in addition that at or about the time of the injury either: [products, materials or thing processed, serviced or manufactured by the defendant were used or consumed, within this State in the ordinary course of business.\\\" N.C.Gen.Stat. \\u00a7 l-75.4(4)(b). Under \\u00a7 l-75.4(4)(b), the plaintiff must claim: (1) \\\"injury to person or property\\\" within North Carolina; (2) arising out of the defendant's acts or omissions outside the state; (3) at or about the time defendant's products were being used or consumed within North Carolina in the ordinary course of trade. See Dowless, 800 F.2d at 1307.\\nIn this case, Crown Cork and Clark have established a prima facie case that \\u00a7 1-75.4(4)(b) confers jurisdiction over each of the moving Defendants. First, Crown Cork and Clark's Complaint claims injury to two parcels of real property in Richmond County, North Carolina (the Macon and Dockery sites). Complaint at \\u00b6 31, 37, 43. Second, Crown Cork and Clark allege that the injury to the real property in North Carolina arose out of moving Defendants' actions outside North Carolina, namely moving Defendants' arrangement with C & M Oil for the disposal of waste oil. Complaint at \\u00b6 52; Daniel Hurst Dep. p. 15-26; James Chestnut Dep. p. 7-9. Finally, Clark Cork and Clark allege that about the time of the injury to the Macon and Dockery sites, moving Defendants' waste oil was being used or consumed there in the ordinary course of trade. Complaint at \\u00b629, 35; Hurst Dep. p. 15-26; Chestnut Dep. p. 7-9. Moving Defendants have failed to contradict Crown Cork and Clark's prima facie showing of these statutory requirements. Thus, Crown Cork and Clark have satisfied that the North Carolina long-arm statute authorizes jurisdiction on these facts.\\nOnce the plaintiff has satisfied that the state statutory authority confers jurisdiction, the inquiry moves on to determine whether an exercise of jurisdiction complies with the federal constitutional standards of due process. See Dowless, 800 F.2d at 1306; see also Vishay, 696 F.2d at 1064. The due process inquiry focuses on two parts. First, a non-resident defendant must have minimum contacts with the forum. The touchstone of the minimum contacts analysis is that a non-resident must engage in some activity purposefully directed toward the forum state. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980); Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283 (1958); International Shoe Co. v. Washington, 326 U.S. 310, 326, 66 S.Ct. 154, 163, 90 L.Ed. 95 (1945). Second, the assertion of personal jurisdiction must comport with traditional notions of fair play and substantial justice. See Burger King, 471 U.S. at 476, 105 S.Ct. at 2184; Woodson, 444 U.S. at 292, 100 S.Ct. at 564; Hanson, 357 U.S. at 251, 78 S.Ct. at 1238; International Shoe, 326 U.S. at 326, 66 S.Ct. at 163.\\nRecently, in Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939 (4th Cir.1994), the Fourth Circuit articulated the test to be applied in considering whether a state has personal jurisdiction over a non-resident defendant. In Lesnick, the Fourth Circuit articulated a two-part test which should focus on whether (1) the defendant has created a substantial connection to the forum state by action purposefully directed toward the forum state or otherwise invoking the benefits and protections of the laws of the state; and (2) the exercise of jurisdiction based on those minimum contacts would not offend traditional notions of fair play and substantial justice, taking into account such factors as (a) the burden on the defendant, (b) the interests of the forum state, (c) the plaintiff's interest in obtaining relief, (d) the efficient resolution of controversies as between states, and (e) the shared interests of the several states in furthering fundamental substantive social policies. Lesnick, 35 F.3d at 945-46. The Fourth Circuit specifically emphasized that the most recent Supreme Court cases discussing personal jurisdiction support a narrow view of minimum contacts, \\\"requiring purposeful activity on the part of the defendants to establish a meaningful contact with the forum state.\\\" Id. at 944. The court stated:\\nTo permit a state to assert jurisdiction over any person in the country whose product is sold in the state simply because a person must expect that to happen destroys the notion of individual sovereign-ties inherent in our system of federalism. Such a rule would subject defendants to judgment in locations based on the activity of third persons and not the deliberate conduct of the defendant, making it impossible for defendants to plan and structure their business contacts and risks.\\nId. at 945.\\nIn Lesnick, the decedent was a chronic smoker who eventually died of mesothelioma, a form of lung cancer. Decedent's wife, a Maryland resident, sued both Lorillard, Inc. (\\\"Lorillard\\\"), a cigarette manufacturer and a New York corporation, and Hollingsworth & Vose Co. (\\\"Hollingsworth\\\"), a filter manufacturer and a Massachusetts corporation, in the federal district court in Maryland. Id. at 940. The plaintiff's complaint alleged that Hollingsworth manufactured filter mediums which contained crocidolite asbestos. Hollingsworth manufactured these filters in Massachusetts and then shipped them to Lorillard's cigarette manufacturing plants in Kentucky and New Jersey. Lorillard incorporated the filters containing crocidolite asbestos into cigarettes and marketed them throughout the nation. The plaintiff alleged that Hollingsworth knew or should have known of the dangers of crocidolite asbestos at the time that the filters were manufactured and failed to either improve the filters or warn the public.\\nHollingsworth filed a motion to dismiss for lack of personal jurisdiction. Hollingsworth admitted when it sold the filters to Lorillard, it knew that those materials would eventually be sold in Maryland (as a component of a cigarette). However, Hollingsworth argued that mere knowledge is not sufficient to .confer personal jurisdiction, and its activity must have been purposefully directed toward Maryland. Id. at 940 \\u2014 41. The plaintiff, on the other hand, argued that Hollingsworth subjected itself to personal jurisdiction in Maryland merely by placing the filters into the stream of commerce knowing that they would be bought by consumers in Maryland. Id. at 941. The plaintiff also argued that Hollingsworth's close relationship with Lorillard sub jected it to personal jurisdiction derivatively through Lorillard's contacts. The district court granted Hollingsworth's motion to dismiss for lack of personal jurisdiction, and the plaintiff appealed.\\nOn appeal, the Fourth Circuit affirmed. The court noted that Hollingsworth was a Massachusetts corporation with its principal place of business in Massachusetts and had virtually \\\"no presence in Maryland.\\\" Id. at 946. Most importantly, the court rejected the plaintiffs argument that Hollingsworth's close relationship with Lorillard subjected it to personal jurisdiction derivatively through Lorillard's contacts. In rejecting this argument, the court stated:\\nAlthough [the two companies' close relationship] represents \\\"additional conduct\\\" beyond the mere sale to Lorillard of filter material, it does not rise to the level of establishing jurisdiction because none of the conduct is in any way directed toward the state of Maryland. All of the listed contacts between Lorillard and [Hollingsworth] relate only to [Hollingsworth's] agreement to supply filters from its plant in Massachusetts to Lorillard in Kentucky and New Jersey. While the result might be different if [Hollingsworth] had changed production to comply with Maryland regulations or if it had set up a customer relations network there . on the record in this case, we can discover no affirmative action by [Hollingsworth] rising to the level of purposeful availment.\\nId. at 946-47 (emphasis in original).\\nIn this case, even after construing all relevant pleading allegations in the light most favorable to Crown Cork and Clark, assuming credibility, and drawing the most favorable inferences for the existence of jurisdiction, Crown Cork and Clark have not established a prima facie case of personal jurisdiction. Specifically, Crown Cork and Clark have not established that Detyens, Braswell, or Parsell have sufficient \\\"minimum contacts\\\" with North Carolina to confer personal jurisdiction here. Crown Cork and Clark have alleged that moving Defendants arranged with C & M Oil, a South Carolina corporation, to dispose of their waste oil and that C & M Oil transported such waste oil to the Macon site in North Carolina. In support of these allegations, Crown Cork and Clark have submitted affidavits of two C & M Oil employees who assert that C & M Oil collected waste oil from those Defendants in South Carolina and transported it for treatment to the Macon site in Richmond County, North Carolina. In their affidavits, all of the moving Defendants state that their respective corporations were organized under the laws of South Carolina, that they have no offices or agents in North Carolina, that they do not and have not engaged in any business in North Carolina, and that they do not maintain any bank accounts, real estate, or other property in North Carolina. Crown Cork and Clark have not provided any evidence to the contrary. Like in Lesnick, none of moving Defendants engage in any conduct which is in any way directed toward the state of North Carolina. Defendants arranged with C & M Oil Co., a South Carolina corporation, to dispose of their waste oil. This arrangement occurred in South Carolina. Defendants' only contact with North Carolina occurred when C & M Oil Co. transported their waste oil to the Macon site in North Carolina. Crown Cork and Clark have not provided evidence that any of the moving Defendants knew that the waste oil was being transported to North Carolina. As in Lesnick, the Court finds no affirmative action by any of the moving Defendants which rises to the level of \\\"purposeful availment\\\" with North Carolina as contemplated by Burger King, Woodson, Hanson, and International Shoe. In addition, Crown Cork and Clark have not shown that moving Defendants have in any way invoked the benefits and protections of the laws of North Carolina. Thus, Crown Cork and Clark have failed to satisfy the first prong of the Lesnick test for personal jurisdiction.\\nIII.\\nCrown Cork and Clark also request that in the event that the Court finds no personal jurisdiction, the Court should transfer the case to the United States District Court for the District of South Carolina pursuant to 28 U.S.C. \\u00a7 1406(a). Title 28 U.S.C. \\u00a7 1406(a) states that \\\"[t]he district court of a district in which is filed a case laying venue in the wrong division or district, shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.\\\" The Fourth Circuit has expressly advocated a reading of \\u00a7 1406(a) which allows \\\"the transfer of a case to any district, which would have had venue if the case were originally brought there, for any reason which constitutes an impediment to a decision on the merits in the transferor district but would not be an impediment in the transferee district.\\\" See Porter v. Groat, 840 F.2d 255, 258 (4th Cir.1988). Courts have transferred cases pursuant to \\u00a7 1406(a) for impediments in the transferor district such as lack of personal jurisdiction. See id.; see also Corke v. Sameiet M.S. Song of Norway, 572 F.2d 77 (2nd Cir.1978); Taylor v. Love, 415 F.2d 1118 (6th Cir.1969), cert. denied, 397 U.S. 1023, 90 S.Ct. 1257, 25 L.Ed.2d 533 (1970); Mayo Clinic v. Kaiser, 383 F.2d 653 (8th Cir.1967); Dubin v. United States, 380 F.2d 813 (5th Cir.1967); Verosol B.V. v. Hunter Douglas, Inc., 806 F.Supp. 582 (E.D.Va.1992); Glaxo Inc. v. Genpharm Pharmaceuticals, Inc., 796 F.Supp. 872 (E.D.N.C.1992); Jaffe v. Julien, 754 F.Supp. 49 (E.D.Pa.1991); McLaughlin v. Copeland, 435 F.Supp. 513 (D.Md.1977).\\nIn this case, Crown Cork and Clark have such an impediment. Without question, however, personal jurisdiction would exist over the moving Defendants in South Carolina. In addition, 42 U.S.C. \\u00a7 9613(b) provides that for civil proceedings under CERCLA, \\\"[v]enue shall lie in any district in which the release or damages occurred, or in which the defendant resides, may be found, or has his principal office.\\\" Therefore, venue would have been proper in South Carolina had Crown Cork and Clark originally chose to bring the lawsuit there. Furthermore, the \\\"interest of justice\\\" require such a transfer. See Terukuni Kaiun Kaisha, Ltd. v. C.R. Rittenberry and Associates, Inc., 454 F.Supp. 418, 423 (S.D.N.Y.1978) (noting that where transfer \\\"would obviate the jurisdictional difficulty\\\", the interest of justice would be served). Thus, \\u00a7 1406(a) authorizes the transfer to the District Court of South Carolina from this district and Plaintiffs' request for such a transfer will be GRANTED.\\n. Because the Court finds that it has no persona! jurisdiction over moving Defendants under Rule 12(b)(2), it will not address moving Defendants' motions to dismiss pursuant to Rule 12(b)(6).\\n. The Court has found a case in this Circuit which holds that in actions where a federal court has federal question jurisdiction, a court need not look to the forum state's long-arm statute to answer the question of personal jurisdiction but, instead, should merely determine whether jurisdiction complies with the federal constitutional standards of due process. See Allied Towing Corp. v. Great Eastern Petroleum Corp., 642 F.Supp. 1339 (E.D.Va.1986). In reaching this holding, the court in Allied Towing mainly relied on two Fifth Circuit decisions. See Terry v. Raymond International, Inc., 658 F.2d 398, 402 (5th Cir.1981), cert. denied, 456 U.S. 928, 102 S.Ct. 1975, 72 L.Ed.2d 443 (1982); Lapeyrouse v. Texaco, Inc., 693 F.2d 581, 585 (5th Cir.1982). However, both Terry and Lapeyrouse have since been overturned. See Point Landing, Inc. v. Omni Capital International, Ltd., 795 F.2d 415 (5th Cir.1986); see also Cable News Network v. Video Monitoring Services, 723 F.Supp. 765 (N.D.Ga. 1989). As a result, the Court will decide the question of personal jurisdiction under the two-prong test as enunciated in Dowless and Vishay. See also Gkiafis v. Steamship Yiosonas, 342 F.2d 546 (4th Cir.1965).\\n. N.C.Gen.Stat. \\u00a7 l-75.4(6)(b) also confers jurisdiction over moving Defendants in this case. \\u00a7 I-75.4(6)(b) provides that the courts of North Carolina have jurisdiction over any action which arises out of \\\"[a] claim to recover for any benefit derived by the defendant through the use, ownership, control or possession by the defendant of tangible property situated within this State either at the time of the first use, ownership, control or possession or at the time the action is commenced.\\\" Crown Cork and Clark allege that moving Defendants have derived benefit from the use of the Macon and Dockery sites by disposing of their waste oil there. In addition, Crown Cork and Clark's seek contribution from moving Defendants for the response costs incurred as a result of such disposal.\\n. Crown Cork and Clark argue that for purposes of CERCLA, a non-resident's mere arrangement for the disposal of hazardous wastes which results in the disposal of those substances in the forum state provides minimum contacts with that forum, regardless of whether the non-resident had any knowledge that the hazardous substances were to be brought into that forum. See Violet v. Picilto, 613 F.Supp. 1563 (D.R.I.1985) and O'Neil v. Picillo, 682 F.Supp. 706 (D.R.I. 1988), aff'd on other grounds, 883 F.2d 176 (1st Cir.1989), cert. denied sub nom. American Cyanamid Co. v. O'Neil, 493 U.S. 1071, 110 S.Ct. 1115, 107 L.Ed.2d 1022 (1990) and United States v. Conservation Chem. Co., 619 F.Supp. 162 (W.D.Mo.1985). Admittedly, the cases cited by Plaintiffs support the proposition that under CERCLA a non-resident can be subject to personal jurisdiction on such facts. However, this Court finds that despite CERCLA's compensatory scheme, such a broad reading would allow \\\"minimum contacts\\\" to essentially equal \\\"no contacts.\\\" As a result, such a broad reading of CERCLA necessarily impedes upon the constitutional limitations of minimum contacts as defined by the Supreme Court.\\nAlso, the Court is mindful that the Fourth Circuit's analysis in Lesnick dealt with personal jurisdiction in the \\\"stream of commerce\\\" setting and not the CERCLA setting. Nevertheless, the Court finds that the Lesnick analysis of the requirements for minimum contacts to be precisely on point and controlling in this case.\\n. Against the wishes of Crown Cork and Clark, this Court will not defer a final ruling on the motion to dismiss for lack of personal jurisdiction and will not allow Crown Cork and Clark additional time to conduct discovery on the juris\\u00bffictional issue. Limited discovery may be warranted to explore jurisdictional facts in some circumstances. See McLaughlin v. McPhail, 707 F.2d 800, 806-07 (4th Cir.1983) (per curiam). However, where a party has had ample time and opportunity to take discovery and the pleadings contain no specific facts that could establish jurisdiction, a court need not permit even limited discovery. See Mylan Laboratories, Inc. v. Akzo, N.V., 2 F.3d 56, 64 (4th Cir.1993); Naartex Consulting Corp. v. Watt, 722 F.2d 779, 788 (D.C.Cir. 1983), cert. denied sub. nom. Naartex Consulting Corp. v. Clark, 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984); see also Phillips USA, Inc. v. Allflex USA, Inc., 857 F.Supp. 789, 793 (D.Kan.1994).\\nIn this case, Crown Cork and Clark have had ample time to conduct discovery which would, if the requisite evidence existed, have permitted them to make a prima facie showing of personal jurisdiction. Crown Cork and Clark have been on notice that personal jurisdiction would be at issue for over twenty months. In addition. Crown Cork and Clark's pleadings and depositions do not contain specific facts that could establish even a prima facie case of jurisdiction. See Naartex, 722 F.2d at 788 n. 15-16. Therefore, an allowance of discovery is not warranted.\"}"
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+"{\"id\": \"7847918\", \"name\": \"Peng-Fei SI, Petitioner, v. William SLATTERY, District Director of the United States Immigration and Naturalization Service, New York District, Respondent\", \"name_abbreviation\": \"Peng-Fei Si v. Slattery\", \"decision_date\": \"1994-10-13\", \"docket_number\": \"No. 93 Civ. 8069 (MGC)\", \"first_page\": \"397\", \"last_page\": \"407\", \"citations\": \"864 F. Supp. 397\", \"volume\": \"864\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the Southern District of New York\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:34:47.885695+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Peng-Fei SI, Petitioner, v. William SLATTERY, District Director of the United States Immigration and Naturalization Service, New York District, Respondent.\", \"head_matter\": \"Peng-Fei SI, Petitioner, v. William SLATTERY, District Director of the United States Immigration and Naturalization Service, New York District, Respondent.\\nNo. 93 Civ. 8069 (MGC).\\nUnited States District Court, S.D. New York.\\nOct. 13, 1994.\\nJerome N. Frank Legal Services Organization, New Haven, CT by Carroll L. Lucht, Jean Koh Peters, Stephen Wizner, Jacqueline Becerra, Wesley Hsu, Stanley Hsue, Jane Park, Arlene Roberts, and Cecillia Wang, for petitioner.\\nMary Jo White, U.S. Atty., S.D.N.Y., New York City by F. James Loprest, Jr., Sp. Asst. U.S. Atty., for respondent.\", \"word_count\": \"5371\", \"char_count\": \"32918\", \"text\": \"OPINION\\nCEDARBAUM, District Judge.\\nPeng-Fei Si, a citizen of the People's Republic of China (\\\"PRC\\\") who has been ordered excluded from the United States, petitions this court for a writ of habeas corpus. Si argues that the Board of Immigration Appeals (\\\"BIA\\\") relied on an improper legal standard in dismissing his appeal from the Immigration Judge's (\\\"IJ\\\") determination that he did not qualify for asylum or withholding of deportation based on his fear that he will be forcibly sterilized if he is sent back to the PRC. Si also argues that asylum or withholding of deportation based on his fear of persecution arising from membership in a social group comprised of those persons who had fled the PRC aboard the Golden Venture was improperly denied. For the reasons discussed below, Si's petition for a writ of habeas corpus is denied.\\nBackground\\nSi arrived in the United States on June 6, 1993 aboard the Golden Venture, a ship which ran aground in Queens carrying approximately 300 people who had fled the PRC. Si was immediately apprehended by law enforcement officials, and has been detained by the Immigration and Naturaliza tion Service (\\\"INS\\\") since that time. Si's central claim for asylum and withholding of deportation is based on his fear that if he returns to the PRC he will be forcibly sterilized in accordance with the PRC's \\\"one couple, one child policy.\\\" Si has a wife and a son, both of whom are still in the PRC.\\nThe following facts were presumed to be true by the IJ for the purpose of deciding Si's applications. See Oral Decision of IJ, at 11-12 (Sept. 3, 1993) (Rec. at 82-83). Shortly after the birth of Si's son, family planning officials began to pressure Si and his wife to have no more children. Because Si's wife had a medical condition which would not permit her to undergo any sort of operation, the officials demanded that Si be sterilized. Si attempted to avoid sterilization by pleading with the officials who came to his house on several occasions and eventually by giving the officials a $3,000 deposit to postpone the operation.\\nIn February of 1992, more than ten officials came to Si's house to demand that he be sterilized. However, Si had been warned by a friend that they were coming, and fled before they arrived. Initially, Si hid from the officials at his aunt's house. Later, he made arrangements to be smuggled out of the country. Si went to Burma, Thailand, and Kenya before he boarded the Golden Venture which brought him to the United States.\\nOn September 3, 1993, after conducting a hearing, the IJ denied Si's request for asylum and withholding of deportation and ordered him excluded. In denying Si's claim based on his fear of forced sterilization, the IJ relied on Matter of Chang, Int. Dec. 3107, 1989 WL 247513 (BIA May 12, 1989), a decision which Si contends has been overruled. On November 17,1993, the BIA, also relying on Chang, dismissed Si's appeal. Thereafter, Si filed a petition for a writ of habeas corpus.\\nOn August 17, 1994, this action was remanded to the INS for reconsideration of Si's requests for asylum and withholding of deportation in accordance with instructions that had just been issued by the Deputy Commissioner of the INS. On August 31, 1994, the parties each moved for clarification of the August 17, 1994 order to confirm that this court retained jurisdiction to decide whether the IJ and the BIA applied an improper legal standard in determining Si's claims. Those motions are hereby granted to the extent that I now address the law applied by the IJ and BIA in denying Si's requests for asylum and withholding of deportation.\\nDiscussion-\\nThe BIA's conclusions of law are reviewed de novo. Doherty v. Thornburgh, 750 F.Supp. 131, 135 (S.D.N.Y.1990), aff'd, 943 F.2d 204 (2d Cir.1991), cert. dismissed, \\u2014 U.S. -, 112 S.Ct. 1254, 117 L.Ed.2d 485 (1992). Its factual findings, however, are given considerable deference. See 8 U.S.C. \\u00a7 1105a(a)(4) (findings of fact are conclusive \\\"if supported by reasonable, substantial, and probative evidence on the record considered as a whole\\\"); Sotelo-Aquije v. Slattery, 17 F.3d 33, 35 (2d Cir.1994). The Supreme Court, in INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), stated that a petitioner seeking reversal of a BIA factual determination must show \\\"that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.\\\" Id. at -, 112 S.Ct. at 817.\\nIn order to be eligible for asylum, Si must establish that he has \\\"a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.\\\" 8 U.S.C. \\u00a7 1101(a)(42)(A); 1158(a). The standard for withholding of deportation is similar, but sets a higher burden of proof. See 8 U.S.C. \\u00a7 1253(h); Sotelo-Aquije, 17 F.3d at 38 (alien must demonstrate a \\\"clear probability\\\" of persecution). Therefore, the following discussion will focus on Si's claim for asylum.\\nI. Forced Sterilization\\nIn 1989, the BIA decided Matter of Chang which addressed the issue of whether a person who feared returning to the PRC because of its policy of forced sterilization was eligible for asylum. The BIA held that:\\nWe cannot find that implementation of the \\\"one couple, one child\\\" policy in and of itself, even to the extent that involuntary sterilizations may occur, is persecution or creates a well-founded fear of persecution \\\"on account of race, religion, nationality, membership in a particular social group, or political opinion.\\\" This is not to say that such a policy could not be implemented in such a way as to individuals or categories of persons so as to be persecution on account of a ground protected by the Act. To the extent, however, that such policy is solely tied to controlling population, rather than as a guise for acting against people for reasons protected by the Act, we cannot find that persons who do not wish to have the policy applied to them are victims of persecution or have a well-founded fear of persecution within the present scope of the Act.\\nId., 1989 WL 247513. Thus, an alien whose fear of persecution is based on forced sterilization is not eligible for asylum, unless he can demonstrate, for example, \\\"that the policy was being selectively applied against members of particular religious groups or was in fact being used to punish individuals for their political opinions.\\\" Id.\\nSi has not asserted that the family planning officials singled him out to be sterilized because of any religious or political belief that he held, and therefore does not argue that he qualifies for asylum under Chang. Instead, Si argues that the BIA should not have applied Chang because it has been overruled. Specifically, Si argues that interim regulations promulgated by the Attorney General in 1990 (\\\"1990 Interim Regulations\\\"), an executive order issued by President Bush (\\\"Executive Order 12,711\\\"), and final regulations promulgated by the Attorney General in 1993 (\\\"1993 Regulations\\\") established that the fear of forced sterilization in and of itself is a ground for asylum, and thereby overruled the BIA's holding in Chang. The Government argues that Chang is still controlling authority, and that therefore, Si's requests for asylum and withholding of deportation were properly denied.\\nSi argues that the BIA's holding in Chang is no longer binding because it has been overruled by the Attorney General in the 1990 Interim Regulations. See 8 C.F.R. \\u00a7 3.1(g). Those regulations, which became effective on January 29, 1990, amended 8 C.F.R. \\u00a7 208 and set forth standards for evaluating claims for asylum and withholding of deportation based on coercive family planning policies. 55 Fed.Reg. 2803 (1990). According to those regulations, \\\"[a]liens who have a well-founded fear that they will be required to abort a pregnancy or to be sterilized because of their country's family planning policies may be granted asylum on the ground of persecution on account of political opinion.\\\" Id. \\u00a7 208.5(b)(1).\\nHowever, the 1990 Interim Regulations were not included in the final regulations which were issued on July 27, 1990 and became effective on October 1, 1990. See 55 Fed.Reg. 30,674 (1990). Those final regulations amended 8 C.F.R. \\u00a7 208 and outlined the eligibility requirements for asylum and withholding of deportation, but did not make any reference to coercive family planning policies and made no mention of the 1990 Interim Regulations. Thus, Si cannot rely on the 1990 Interim Regulations which were effectively revoked by their omission from the final regulations issued in July of 1990. See Chen v. Slattery, 862 F.Supp. 814, 821 (E.D.N.Y.1994); Di v. Carroll, 842 F.Supp. 858, 869 (E.D.Va.1994).\\nSi also argues that Chang was superseded by Executive Order 12,711, issued by President Bush on April 11, 1990. 55 Fed. Reg. 13,897 (1990). Section 4 of the Executive Order provides that:\\nThe Secretary of State and the Attorney General are directed to provide for enhanced consideration under the immigration laws for individuals from any country who express a fear of persecution upon return to their country related to that country's policy of forced abortion or coerced sterilization, as implemented by the Attorney General's regulation effective January 29, 1990.\\nThus, according to Si, his applications for asylum and withholding of deportation are entitled to \\\"enhanced consideration,\\\" and the BIA erred in following Chang.\\nHowever, as recognized by Si, \\\"there is no private cause of action to enforce obligations imposed on executive branch officials by executive orders.\\\" (Pet.Mem. at 10 n. 2); see Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498, 1510-11 (11th Cir.), cert. denied, \\u2014 U.S. -, 112 S.Ct. 1245, 117 L.Ed.2d 477 (1992). Si contends that his argument is unaffected by that principle in that he does not seek to force the Attorney General to comply with the Executive Order because the Attorney General has already implemented the Executive Order by promulgating the 1990 Interim Regulations. That argument, however, highlights the fact that the Executive Order itself did not overrule Chang. Accordingly, Si is left to rely on the 1990 Interim Regulations which implemented the provisions of the Executive Order. But, as stated above, the 1990 Interim Regulations were revoked in July of 1990.\\nSi's contention that Executive Order 12,711 gave the 1990 Interim Regulations the force of law, and thereby made their omission from the final regulations irrelevant, is not persuasive. Executive Order 12,711 directs the Attorney General to give enhanced consideration to asylum claims based on coercive family planning policies. The fact that the Attorney General may have faded to comply with that order by omitting the 1990 Interim Regulations from the final regulations does not mean that Si may rely directly on the Executive Order. Rather, Si may rely only on those regulations that the Attorney General in fact issued.\\nFinally, Si argues that the 1990 Interim Regulations were put into final form in January of 1993 and were thus in effect when he made his applications for asylum and withholding of deportation. The 1993 Regulations were upheld as enforceable in Zhang v. Slattery, 859 F.Supp. 708, 712 (S.D.N.Y.1994), but were rejected in Chen, 862 F.Supp. at 822. A brief review of the history of the 1993 Regulations is necessary to determine the effect of those regulations.\\nOn January 22,1993, then Attorney General William Barr submitted to the Federal Register a \\\"Final Rule\\\" regarding claims for asylum and withholding of deportation made by aliens fleeing countries with coercive family planning policies. That regulation amended 8 C.F.R. \\u00a7 208.13(b)(2)(ii) to provide the following:\\nAn applicant (and the applicant's spouse, if also an applicant) shall be found to be a refugee on the basis of a well-founded fear of persecution on account of political opinion if the applicant establishes a well-founded fear that, pursuant to the implementation by the country of the applicant's nationality or last habitual residence of a family planning policy that involves or results in forced abortion or coerced sterilization, the applicant will be forced to abort a pregnancy or to undergo sterilization or will be persecuted for failure or refusal to do so, and that the applicant is unable or unwilling to return to, or to avail himself or herself of the protection of, that country because of such fear.\\n(Letter from Attorneys for Petitioner to Judge Cedarbaum, Ex. A at 14 (April 11, 1994)). The public comments that had been received regarding the 1990 Interim Regulations were addressed in the explanatory notes accompanying the 1993 Regulations. The notes state that \\\"[o]ne effect of this rule is to supersede the Board decision in Matter of Chang . to the extent that it held that the threat of forced abortion or involuntary sterilization pursuant to a government family planning policy does not give rise to a well-founded fear of persecution on account of political opinion, without an additional showing on the issue of the applicant's actual political opinion.\\\" (Id. at 4-5.)\\nThe 1993 Regulations provided that the \\\"effective date\\\" of the regulations would be the date of publication in the Federal Register, which was scheduled for January 25, 1993. (Id. at 2, 16.) However, immediately following his inauguration on January 22, 1993, the same day on which the 1993 Regulations were submitted to the Federal Register, President Clinton directed the newly-appointed Director of the Office of Management and Budget to issue a memorandum to the heads of all federal government agencies. That memorandum stated that \\\"[i]t is important that President Clinton's appointees have an opportunity to review and approve new regulations,\\\" and thus requested that each agency \\\"withdraw from the Federal Register for approval [by the newly appointed agency heads] all regulations that have not yet been published in the Federal Register.... \\\" 58 Fed.Reg. 6074 (1993). Accordingly, the Acting Assistant Attorney General withdrew from publication the 1993 Regulations.\\nSi argues that the 1993 Regulations are binding and that therefore Chang has been overruled. While Si recognizes that- those regulations were withdrawn from publication, he contends that a regulation need not be published in order to have binding effect. For this proposition Si relies on Montilla v. INS, 926 F.2d 162 (2d Cir.1991), in which the Second Circuit stated:\\nAs the Supreme Court noted, \\\"[w]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required,\\\" and even though the procedural requirement has not yet been published in the federal register.\\nId. at 167 (quoting Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 1074, 39 L.Ed.2d 270 (1974)) (emphasis added). However, the emphasized language on which Si relies is dictum in that the Montilla court held that the INS was required to follow a published rule which involved an alien's right to counsel.\\nThe ease relied upon by the Montilla court, Morton v. Ruiz, did involve an unpublished rule, but the facts in Morton are very different from those in the present case. In Morton, members of an Indian tribe who lived off the reservation applied to the Bureau of Indian Affairs (\\\"Bureau\\\") for general assistance benefits. Their applications were denied on the basis of unpublished eligibility requirements issued by the Bureau. The Supreme Court discussed the effect of a rule found in the Bureau of Indian Affairs Manual, an unpublished \\\"internal-operations brochure,\\\" which required that all directives that inform the public of eligibility requirements be published in the Federal Register in accordance with the Administrative Procedure Act (\\\"APA\\\"). Morton, 415 U.S. at 234-35, 94 S.Ct. at 1074. The Morton Court held that the Bureau must comply with its own internal unpublished procedures, which required publication of eligibility requirements, before it could declare a person ineligible for benefits. Thus, the Court concluded that \\\"[w]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.\\\" Id. at 235, 94 S.Ct. at 1074.\\nThe facts of the present case are very different. First, unlike Morton, this case does not present a situation in which an agency simply has not published its internal procedures in the Federal Register. Indeed, not only were the 1993 Regulations never published in the Federal Register, they were affirmatively withdrawn from publication by the Acting Attorney General for review and possible approval by President Clinton's ap pointed Attorney General. There has been no such approval in the more than twenty months since the withdrawal. In fact, an opportunity to formally adopt the 1993 Regulations and to direct the BIA to cease relying on Chang arose last year when the BIA referred to Attorney General Janet Reno two eases which had relied on Chang in order to resolve the conflict between Chang and Executive Order 12,711. On December 7, 1993, the Attorney General stated that \\\"it is apparent that the BIA's determination in these eases do[es] not require a determination that one or the other of these standards is lawful and binding.\\\" Di v. Carroll, 842 F.Supp. at 870 n. 23. Although, as noted by the Chen court, that statement is somewhat cryptic in light of the inherent conflict between Executive Order 12,711 and Chang, it is clear that the Attorney General has not decided to adopt the 1993 Regulations. Unless and until the Attorney General decides to adopt those regulations, they have no binding effect.\\nSecond, the 1993 Regulations have never been followed by the BIA and thus cannot be regarded as a policy or procedure of the agency. In contrast, the Bureau's internal operations manual in Morton, which directed that all eligibility requirements be published, clearly represented the policy adopted by the Bureau. The Court in Morton simply enforced the unpublished policy to ensure that all persons affected would have notice of eligibility requirements for available benefits. Therefore, neither Montilla nor Morton provides support for Si's position.\\nIn Zhang, the court relied on \\u00a7 3 of the APA, the \\\"Freedom of Information of Act\\\" (\\\"FOIA\\\"), in holding that the 1993 Regulations need not be published in order to have binding effect. That section provides, in part, that \\\"a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.\\\" 5 U.S.C. \\u00a7 552(a)(1). Si relies on several cases which construe that language to support his argument that the 1993 Regulations are effective despite their withdrawal from the Federal Register. However, a careful reading of those cases demonstrates that they have no application to this case.\\nSi cites Donovan v. Wollaston Alloys, Inc., 695 F.2d 1 (1st Cir.1982), in which the First Circuit held that an inspection program promulgated by the Occupational Safety and Health Administration (\\\"OSHA\\\") was valid even though it had not been published in the Federal Register. The court stated that because the defendant had failed to demonstrate how it had been adversely affected by OSHA's failure to publish the details of the program, the failure to publish would not render the program invalid. Id., 695 F.2d at 9. Si also cites Hogg v. United States, 428 F.2d 274 (6th Cir.1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 805 (1971), in which the defendant claimed that certain internal Department of Justice instructions regarding the filing of an appeal by an Assistant United States Attorney were ineffective because they had not been published in the Federal Register in accordance with the APA. The Sixth Circuit held that the unpublished instructions were valid because \\\"the requirement for publication attaches only to matters which if not published would adversely affect a member of the public.\\\" 428 F.2d at 280.\\nNeither Hogg nor Donovan has any application to the present case. In both Hogg and Donovan there was no question that the unpublished regulations represented the policy of the agency in question. The only question presented to those courts was whether those regulations had to be published in order to be effective. That determination was made in accordance with the FOIA which requires publication of all regulations which, if not published, would adversely affect the public. None of the authority cited by Si stands for the proposition that an agency is bound to follow a rule that it has never before followed and that it in fact withdrew from publication, and thereby affirmatively decided not to adopt. The purpose of the FOIA is to ensure that all persons who may be affected by a particular regulation have notice of its provisions. The FOIA cannot be used to force an agency to adopt a new regulation that it withdrew from publication for the specific purpose of determining whether or not it should be adopted.\\nAlthough the Justice Department's apparent indecision regarding the treatment of applications for asylum based on the PRC's \\\"one couple, one child\\\" policy is frustrating, the BIA's consistent application of Chang and the Attorney General's failure to effectively overrule that decision cannot be ignored. The court's holding in Di v. Carroll that the \\\"cacophony of administrative voices\\\" is undeserving of deference, 842 F.Supp. at 870, is not persuasive. As the Chen court stated, \\\"inconsistency of policy is not, by itself, sufficient to require less deference to an agency's determination. An interpretation will be rejected only where it is unreasonable and at odds with the plain meaning of the statute.\\\" Chen, 862 F.Supp. at 821; see Himes v. Shalala, 999 F.2d 684, 690-91 (2d Cir.1993) (according deference to Secretary's interpretation of statute even though inconsistent with prior interpretation because current interpretation was \\\"not at odds with the plain meaning of the statute [and was] reasonable\\\"); see also Osorio v. INS, 18 F.3d 1017, 1022 (2d Cir.1994) (\\\"we will reverse the BIA's interpretation of statutory law where 'it appears from the statute or its legislative history that the interpretation is contrary to Congress's intent\\\") (quoting Chevron U.S.A, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845, 104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984)).\\nThe BIA's interpretation in Chang of the statute governing asylum claims is not unreasonable, and is consistent with the Supreme Court's interpretation of that statute. The Supreme Court, in Elias-Zacarias, held that a guerilla organization's use of threats of violence to coerce a person into joining its forces in fighting the Guatemalan government did not constitute \\\"persecution on account of . political opinion,\\\" as defined in 8 U.S.C. \\u00a7 1101(a)(42). The Supreme Court found that even assuming that the applicant's resistance to joining the guerilla forces could be seen as a political opinion, he had failed to demonstrate that the resulting persecution was \\\"on account of' that political opinion, rather than because of his refusal to join with them. Elias-Zacarias, 502 U.S. at-, 112 S.Ct. at 816.\\nThus, even assuming that refusal to cooperate with family planning officials in the PRC can be characterized as an imputed political opinion, an applicant would still need to demonstrate that the policy was being enforced against him \\\"on account of' that opinion, rather than to enforce the \\\"one couple, one child\\\" policy. The BIA, in Chang, simply held that an alien, in order to establish a claim for asylum, would have to show that forced sterilization was threatened for some motive other than enforcement of the population control policy. It cannot be said that that standard is at odds with the plain meaning of the asylum provisions. But see Di v. Carroll, 842 F.Supp. at 871-74 (finding that the PRC's confiscation of applicant's property and destruction of his living quarters after his refusal to comply with one-child policy constituted persecution on account of applicant's political opinion). While the PRC's policy of forced sterilization may seem cruel, the asylum laws do not provide relief on such grounds.\\nIn sum, Si has failed to demonstrate that Chang has been overruled or that the BIA's interpretation of the asylum provisions is at odds with the plain meaning of the statute. Therefore, the denial of Si's application for asylum cannot be overturned by this court. Nor was the denial of Si's application for withholding of deportation based on an error of law.\\nHowever, Si is not necessarily subject to immediate deportation. New instructions issued by the INS demonstrate that Si may be entitled to a stay of deportation or parole based on his fear of forced sterilization. Those instructions provide, in part, that:\\nWhile asylum may not be available in most cases, the more extreme practices sometimes employed in the enforcement of family planning policies in the PRC can give rise to difficult cases where, for humanitar ian reasons, INS may not wish to repatriate the alien. In order to address the genuine humanitarian issues that exist in such cases, prior to removing such alien with a final order of exclusion or deportation, consideration will be given to granting such an alien a stay of deportation.\\n(Letter from Asst. U.S. Attorney Loprest to Judge Cedarbaum, Ex. A at 2 (August 11, 1994).) Those instructions provide further that \\\"[a]ll PRC nationals who have expressed a fear of return relating to the enforcement of family planning practices in the PRC may, at the discretion of the District Director, be released from INS custody or paroled into the United States pending final resolution of their immigration proceedings.\\\" (Id. at 4.)\\nII. Golden Venture Passengers\\nSi also argues that he has a well-founded fear of persecution based on his \\\"membership in a particular social group,\\\" comprised of those persons who fled the PRC aboard the Golden Venture. Si contends that the PRC was embarrassed by the publicity surrounding their escape and will therefore punish them more severely upon their return. According to Si, that punishment is likely to include harsh fines and a period of time in a \\\"re-education\\\" camp.\\nThe Second Circuit has defined the term \\\"social group\\\" as:\\n\\\"'a collection of people closely affiliated with each other, who are actuated by some common impulse or interest.' A particular social group is comprised of individuals who possess some fundamental characteristic in common which serves to distinguish them in the eyes of a persecutor\\u2014or in the eyes of the outside world in general.\\\"\\nGomez v. INS, 947 F.2d 660, 664 (2d Cir.1991) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir.1986)). The Gomez court stated further that \\\" '[a] particular social group normally comprises persons of similar background, habits or social status.' \\\" Id., 947 F.2d at 664 (quoting Ananeh-Firempong v. INS, 766 F.2d 621, 626 (1st Cir. 1985)).\\nThe fact that the passengers on the Golden Venture each happened to choose the same method of fleeing the PRC, and now share the misfortune of having attracted a great deal of publicity which caused the PRC embarrassment, does not give them the status of a social group. There is no evidence that the Golden Venture passengers were \\\"actuated by some common impulse or interest.\\\" Indeed, it is likely that the passengers decided to flee for many different reasons, and thus were brought together simply because each passenger happened to board the same vessel. While the Golden Venture passengers may be seen as a \\\"group\\\" by the PRC, they do not meet the requirements of a \\\"social group\\\" simply on the basis of their shared misfortune.\\nSi also argues that in determining whether he has a well-founded fear of persecution, the IJ failed to \\\"give due consideration to evidence that the [PRC] . persecutes its nationals or residents if they leave the country without authorization or seek asylum in another country.\\\" 8 C.F.R. \\u00a7 208.13(b)(2)(ii); see Osorio, 18 F.3d at 1031-32. The IJ considered and rejected Si's argument based on that regulation, as did the BIA. In order to prevail, Si must demonstrate \\\"that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.\\\" Elias-Zacarias, 502 U.S. at -, 112 S.Ct. at 817.\\nSi acknowledges that to establish a claim for asylum based on the circumstances surrounding his departure and his subsequent application for asylum, he must show that (1) his departure was politically motivated; and (2) the consequences he will face upon his return will be political in nature. Thus, potential prosecution for violating the PRC's illegal departure law on its face does not give rise to a fear of persecution within the meaning of the statute. In Matter of Janus and Janek, 12 I. & N. Dec. 866, 1968 BIA LEXIS 99 (BIA 1968), a case relied on by Si, the BIA found that an order of conviction for \\\"Defection from the Republic of Czechoslovakia\\\" imposed on an alien in absentia suggested that the punishment he would face upon return had political, rather than criminal, connotations. Although the alien had not publicly expressed his opposi tion to the government before his departure, the BIA found that he, as a member of the Communist Party \\\"entrusted with the mission of propagandizing for the Communist government in the United States, showed his true political sentiments by defecting.\\\" Id., 12 I. & N. at 875.\\nSi has not demonstrated that the harsh penalties that he fears will be imposed upon his return will be political in nature. Indeed, Si has offered no proof which suggests that he will be singled out for persecution because he left the PRC in opposition to the one-child policy. And, the fact that the Golden Venture passengers may be punished more severely because of the embarrassment caused to the PRC cannot be a basis for political asylum. If it were, it would mean that any time people fled a country in large numbers\\u2014for whatever reason\\u2014to enter the United States illegally, and thereby caused embarrassment to their country of origin, the basis for asylum would be established.\\nBecause Si has not shown that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution, he has not shown either error of law or abuse of discretion.\\nConclusion\\nFor the foregoing reasons, Si's petition for a writ of habeas corpus is denied.\\nSO ORDERED.\\n. See infra pp. 405-406.\\n. Although Si has presented some evidence which suggests that the omission may have been inadvertent, that evidence is inconclusive. Indeed, the fact that the omission was not subsequently reversed suggests that it was not inadvertent.\\n. The 1990 Interim Regulations amended 8 C.F.R. \\u00a7 208.5 which set forth the standards for establishing a claim for asylum. The final regulations issued in July of 1990 amended the same provisions, but at a newly numbered section, 8 C.F.R. \\u00a7 208.13. Thus, the 1993 Final Regulations were intended to amend the same provisions as the 1990 Interim Regulations.\\n. Si contends that the fact that the comments to the 1990 Interim Regulations were addressed in the notes to the 1993 Final Regulations shows that the Attorney General considered the 1990 Interim Regulations to be in effect \\\"during a three-year notice and comment period\\\" and that therefore the final regulations published in July of 1990 did not supersede the 1990 Interim Regulations. (Pet.Mem. for Clarif. at 4-5.) That argument is without merit. The 1990 Interim Regulations provided that the notice and comment period would expire on February 28, 1990, and there is no evidence to suggest that the 1990 Interim Regulations remained in effect in spite of their omission from the final regulations issued in July of 1990. If anything, the promulgation of the 1993 Final Regulations demonstrates that the Attomey General recognized that the 1990 Interim Regulations and Executive Order 12,711 had not effectively overruled Chang.\\n. Matter of Chu, [ AXX-XXX-XXX ] (BIA June 7, 1993); Matter of Tsun, [ AXX-XXX-XXX ] (BIA June 7, 1993).\"}"
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+"{\"id\": \"79827\", \"name\": \"Missouri State Life Insurance Co. v. Johnson\", \"name_abbreviation\": \"Missouri State Life Insurance v. Johnson\", \"decision_date\": \"1933-03-04\", \"docket_number\": \"No. 648\", \"first_page\": \"609\", \"last_page\": \"610\", \"citations\": \"288 U.S. 609\", \"volume\": \"288\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T19:10:00.904765+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Missouri State Life Insurance Co. v. Johnson.\", \"head_matter\": \"No. 648.\\nMissouri State Life Insurance Co. v. Johnson.\\nMarch 4, 1933.\", \"word_count\": \"130\", \"char_count\": \"737\", \"text\": \"Petition for writ of certiorari to the Supreme Court of Arkansas.\\nThe petition for writ of certiorari in this cause is denied upon the ground that the judgment sought herein to be reviewed is joint and the record fails to disclose summons and severance. Hartford Accident & Indemnity Co. v. Bunn, 285 U. S. 169; Capital National Bank v. Board of Supervisors, 286 U. S. 550; Fidelity Union Casualty Co. v. Hanson, 287 U. S. 599; Louisville & Nashville R. Co. v. Parker, 287 U. S. 569; Wagner Tug Boat Co. v. Meagher, 287 U. S. 657.\\nMessrs. George B. Rose, D. H. Cantrell, J. F. Loughborough, A. W. Dobyns, and A. F. House for petitioner. No appearance for respondent.\"}"
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+"{\"id\": \"857403\", \"name\": \"Charles M. LUCK, Appellant, v. UNITED STATES of America, Appellee\", \"name_abbreviation\": \"Luck v. United States\", \"decision_date\": \"1965-05-21\", \"docket_number\": \"No. 18408\", \"first_page\": \"763\", \"last_page\": \"772\", \"citations\": \"348 F.2d 763\", \"volume\": \"348\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T20:40:16.711690+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charles M. LUCK, Appellant, v. UNITED STATES of America, Appellee.\", \"head_matter\": \"Charles M. LUCK, Appellant, v. UNITED STATES of America, Appellee.\\nNo. 18408.\\nUnited States Court of Appeals District of Columbia Circuit.\\nArgued Sept. 23, 1964.\\nDecided May 21, 1965.\\nPetition for Rehearing Denied Aug. 16, 1965.\\nDanaher, Circuit Judge, dissented in part.\\nMr. Dennis J. Tuchler (appointed by this court), Washington, D. C., for appellant.\\nMiss Carol Garfiel, Atty., Dept, of Justice, with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Victor W. Caputy, Asst. U. S. Attys., were on the brief, for appellee.\\nMr. Max Frescoln, Asst. U. S. Atty., also entered an appearance for appellee.\\nBefore Danaher, Wright and McGowan, Circuit Judges.\", \"word_count\": \"5023\", \"char_count\": \"29458\", \"text\": \"McGOWAN, Circuit Judge:\\nAppellant was convicted of housebreaking and larceny after a trial at which he put forward an alibi defense. His principal contentions upon appeal are that the District Court erred in (a) receiving in evidence appellant's admission of guilt, and (b) allowing the Government to show by way of impeachment his prior conviction of grand larceny.\\nPolice testimony offered at the trial as a part of the prosecution's case was as follows: At 10:04 P.M. on June 8, 1963, a burglar alarm company received a sig nal from a laundry. Police were alerted and arrived at the scene within a few minutes. With officers stationed at various points around the building, a detective climbed a ladder leading to the roof of the laundry building, where he discovered appellant hiding in an exhaust duct. Appellant was brought to the ground, placed in a cruiser, and driven around to the front of the building. There, presently, a guard from the burglar alarm company unlocked the front door of the laundry and the officers, with appellant, entered. It was discovered that a soft drink machine had been broken open and a coin receptacle was on the floor. Appellant was searched, and two $1 bills and $6.40 in silver were found in his right rear pocket. An officer asked appellant if he had broken into the machine, and appellant stated that he had. Asked how he had gained access to the building, appellant explained that he had entered through a large exhaust fan.\\nAppellant, testifying in his own defense, denied the foregoing version. He said that, at some point between 10:30 and 10:45 on the evening in question, he had just left a companion and was walking along the street several blocks from the laundry. A police cruiser drew up beside him; two officers got out, handcuffed him and took him into custody, saying something to the effect that they \\\"had him this time.\\\" He was taken to the laundry, where he arrived at about five minutes of eleven. There he was questioned. At first he denied having robbed the machine or entered the building, but thereafter said what he was told to say because he was tired of questioning. He stated that he had in his possession four $1 bills and $1.40 in change, which was later taken from him at the precinct station. He expressly claimed that any admissions made by him were \\\"not voluntary.\\\"\\nWhen, during the Government's case and in the presence of the jury, the police officer testified to what appellant had said in answer to a question about the vending machine, defense counsel objected that the admission was the result \\\"of a course of treatment by the police which amounts to coercion, and not of any voluntary nature whatsoever.\\\" The court overruled this objection, contenting itself with addressing two or three questions to the police officer as to whether any promises or threats had been made.\\nThis handling of the issue of voluntariness Raised by counsel's objection does not comport with the procedural standards prescribed by the Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). We note preliminarily that the court here permitted, and indeed invited, the officer's answer to be forthcoming in the jury's presence even before counsel's objection could be fully articulated. It seems to us ill-advised to let the damaging answer be heard by the jury when it is clear what is about to happen and that the defense is raising an objection. A stake is there by created in avoiding a mistrial which is likely to be operative, at least subconsciously, in any subsequent inquiry conducted out of the presence of the jury into the issue raised by the objection. In any event, the factual bases of a volun-tariness objection are always to be first explored out of the presence of the jury, with opportunity to both sides to give their versions, unless it is clear that the objection is wholly frivolous. We cannot say that it was so here. An adequate recognition of the long-established practice in the District of Columbia would have entailed a hearing outside the presence of the jury at the time the objection was made, and, unless a conclusion of involuntariness was reached, a subsequent submission of that issue to the jury. Jackson v. Denno has now made clear that, in those jurisdictions which permit the jury to determine this issue, a hearing is to be held at which the judge shall determine the issue of voluntariness; and he shall do so in full recognition that, in the words of the Supreme Court, \\\"proof that a defendant committed the act with which he is charged and to which he has confessed is not to be considered when deciding whether a defendant's will has been overborne.\\\" 378 U.S. at 385, 84 S.Ct. at 1785. In the record before us it appears that, although the court held no hearing, it did instruct the jury that it could disregard the confession if it accepted the defendant's testimony at the trial as to involuntariness. Thus the requirements of our own practice were met, except for the hearing before the judge. But this, plus a determination by the judge of the issue of vol-untariness, are precisely what Jackson v. Denno holds to be essential. Thus, as in Jackson v. Denno, we remand with directions that a hearing of the kind contemplated in that case be held on the issue of voluntariness, with the contingency of a new trial to abide that event.\\nThe second issue raised on this appeal warrants some discussion. While appellant was testifying, he was asked by the prosecutor whether he had pleaded guilty to grand larceny in the District Court on March 15, 1961. Over objection, he was permitted to answer that he had. The ground of the objection was that appellant was a juvenile at the time of the earlier crime, and that a conviction for it could not be introduced in evidence for any purpose, including impeachment of credibility. The Government contended that, because, at the time of the 1961 offense, the Juvenile Court had waived jurisdiction over appellant and he had been treated as an adult in the District Court and sentenced under the Youth Corrections Act, this prior conviction was admissible for impeachment purposes.\\nAppellant relies in this regard upon the provisions of Section 2308(d) of Title 16 of the D.C.Code, which are designed to relieve proceedings in the Juvenile Court from the consequences which customarily accompany conviction of crime in a tribunal of general criminal jurisdiction. The Government points out, however, that that statute is in terms addressed to adjudications made by the Juvenile Court in the exercise of its jurisdiction, and that it has no application when that jurisdiction has been expressly waived by the Juvenile Court. Here, appellant was waived out of the jurisdiction of the Juvenile Court, and the District Court was authorized to, and did, try and sentence him as an adult. Such a conviction, so it is said, carries with it the usual incidents, including subsequent exposure to impeachment by reason of the earlier conviction as authorized by 14 D.C.Code \\u00a7 305 (1961).\\nWe agree with the Government to this extent, namely, that we find no clear purpose on the part of Congress to withdraw from the reach of this last-mentioned statute convictions of juveniles in the District Court as adults following upon waivers of jurisdiction by the Juvenile Court. Just as more severe sentencing provisions are available for the punishment of those who are waived, so does conviction entail the consequence that the Government may seek to use it to attack credibility in a later proceeding. Such harsher consequences are always arguments against the wisdom of waiver in an individual case, but their very persuasiveness for this purpose rests upon the existence of such consequences. This is implicit in Judge Youngdahl's statement, made in support of his conclusion to proceed against a defendant as a juvenile and not as an adult, that to do otherwise would mean that the defendant would \\\"be branded with the mark of 'criminal' for the rest of his life * United States v. Anonymous, 176 F.Supp. 325, 326 (D.D.C.1959).\\nTo the extent, however, that the Government's position implies that the prosecution is always entitled to introduce a juvenile's earlier conviction as an adult following upon waiver of jurisdiction over him by the Juvenile Court, we do not agree. Section 305 is not writ ten in mandatory terms. It says, in effect, that the conviction \\\"may,\\\" as opposed to \\\"shall,\\\" be admitted; and we think the choice of words in this instance is significant. The trial court is not required to allow impeachment by prior conviction every time a defendant takes the stand in his own defense. The statute, in our view, leaves room for the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case. There may well be cases where the trial judge might think that the cause of truth would be helped more by letting the jury hear the defendant's story than by the defendant's foregoing that opportunity because of the fear of prejudice founded upon a prior conviction. There may well be other cases where the trial judge believes the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility. This last is, of course, a standard which trial judges apply every day in other contexts; and we think it has both utility and applicability in this field.\\nIn exercising discretion in this respect, a number of factors might be relevant, such as the nature of the prior crimes, the length of the criminal record, the age and circumstances of the defendant, and, above all, the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant's story than to know of a prior conviction. The goal of a criminal trial is the disposition of the charge in accordance with the truth. The possibility of a rehearsal of the defendant's criminal record in a given case, especially if it means that the jury will be left without one version of the truth, may or may not contribute to that objective. The experienced trial judge has a sensitivity in this regard which normally can be relied upon to strike a reasonable balance between the interests of the defendant and of the public. We think Gongress has left room for that discretion to operate. In reaching the result we do in this case, moreover, we are not to be understood as equating the absence of Congressional purpose to relieve waived juveniles at all events from exposure to impeachment of this kind with an affirmative prescription that such impeachment is always available to the prosecution.\\nThe matter is, we reiterate, one for the exercise of discretion; and, as is generally in accord with sound judicial administration, that discretion is to be accorded a respect appropriately reflective of the inescapable remoteness of appellate review. We cannot say, on the record before us, that the court committed reversible error in permitting this appellant to be asked about his prior conviction, but, in the event that a new trial results from the remand we have concluded to make, the judge trying that cause should feel free to approach the problem, if it arises, as one to be decided according to his best judgment in the light of the record as it develops before him.\\nThe case is remanded for further proceedings not inconsistent herewith.\\nIt is so ordered.\\n. This sequence followed upon testimony by the officer that he had had a conversation with appellant about the vending machine shortly after they entered the building:\\nQ Will you tell the Court and jury what if anything the defendant said concerning that Pepsi Cola machine?\\nA He admitted in the presence\\u2014\\nMb. French: Objection, Tour Honor.\\nBy Mb. Caputy:\\nQ No conclusion. Tell us what he said.\\nThe Coubt: Tell us the substance.\\nThe Witness : He stated, Your Hon- or, that he had entered the Pepsi Cola machine.\\nMb. Fbench: I object to the admission of this evidence, Your Honor.\\nThe Coubt: What is your basis?\\nMe. Fbench: This amounts to an oral admission. It's inadmissible and it is incompetent. It is uncorroborated. It is not threshold. And it is the result, in counsel's opinion, of a course of treatment by the police which amounts to coercion, and not of any voluntary nature whatsoever.\\nThe Coubt : I am forced to admit it as being proper. This is part of the res gestae, in a sense. And it certainly is not in violation of the Mallory rule.\\n. The frivolity of the objection was not established simply by the court's canvassing the police officer's opinion as to the voluntariness of the admission. We recognize that some doubt as to the seriousness of the objection is created by counsel's failure to request that a hearing be immediately held out of the presence of the jury at which he could present testimony in support of his objection. The immediate and emphatic nature of the court's response to his objection was not such, however, as to suggest that such a request would have been productive. Moreover, we think there is some responsibility on the court to ascertain whether counsel wishes to press his objection in an evidentiary hearing. In any event, in the light of the importance attached by the Supreme Court in Jackson v. Denno to such a hearing, we are not disposed to dispense with it solely because counsel did not articulate a request for it.\\n. Appellant urged upon appeal that the admissions should also have been excluded because obtained in the course of an unnecessary delay within the prohibition of Rule 5(a), Fed.R.Crim.P. Although this issue was possibly comprehended within the objection at trial by reason of the reference therein to \\\"threshold,\\\" and the trial court alluded to it in its ruling, we regard the basic thrust of counsel's objection as having been directed to the question of voluntariness; and this is confirmed by the nature of appellant's subsequent testimony at the trial, which was concerned with the matter of coercion.\\n. 16 D.C.Code \\u00a7 2308(d) provides as follows:\\n\\\"An adjudication upon the status of a child in the jurisdiction of the [juvenile] court does not operate to impose any of the civil disabilities ordinarily imposed by conviction, and a child is not deemed a criminal by reason of an adjudication. An adjudication is not deemed a conviction of a crime, and a child may not be charged with or convicted of a crime in any court, except as provided by section 11 \\u2014 1553. The disposition made of a child, or evidence given in the court, is not admissible as evidence against the child in any case or proceeding in any other court, and the disposition, or evidence, or adjudication, does not operate to disqualify a child in any future civil-service examination, appointment, or application for public service under either the Government of the United States or of the District of Columbia.\\\"\\n. Chief Judge Laws characterized the Juvenile Court Act as \\\"indicating no purpose to stamp the juvenile with criminal conviction except in extreme eases where waivers are made by the Juvenile Court White v. Reid, 125 F.Supp. 647, 651 (D.D.C.1954). See also Note, 49 Geo.L.J. 322, 345 (1960), where it is said:\\nIf a conviction is obtained upon the trial, the sentence will involve a typical adult criminal penalty, and the juvenile can be committed to an adult federal prison or reformatory. He irrevocably obtains a criminal record. \\u2756\\nThe waiver provision first appeared as a part of the revision of the Juvenile Court Act in 1938. That revision enlarged the jurisdiction of the Juvenile Court to cover all offenses committed by persons under 18, but it altered the nature of the court so as to make clear that it was not administering the criminal law. Exposure to that law in the usual way was to follow only upon a waiver by the Juvenile Court of its jurisdiction, which could be effected as to any person over 16 charged with a felony. In 1947 this waiver authority was extended to cover any person charged with an offense punishable by death or life imprisonment.\\n. 14 D.C.Code \\u00a7 305 (1961) reads in pertinent part as follows:\\n\\\"No person shall be incompetent to testify, in either civil or criminal proceedings, by reason of his having been convicted of crime, but such fact may be given in evidence to affect Ms credit as a witness, either upon the cross-examination of the witness or by evidence aliunde; and the party cross-examining him shall not be concluded by his answers as to such matters. [Emphasis added.]\\\"\\n. See McCormick Evidence \\u00a7 43, at 94 (1954):\\nOn balance it seems that to permit one accused of crime to tell his story without incurring the overwhelming prejudice likely to ensue from disclosing past convictions, is a more just, humane and expedient solution <\\u00ed # $\\nA defendant who is considering whether or not to testify on his own behalf may want, if possible, to know to what extent the trial judge will permit him to be impeached by his past record. Although a trial judge cannot be expected to give preliminary rulings which will foreclose him completely as the trial progresses, it would appear that careful exploration of such a request outside the presence of the jury would be in order.\\n. See Colter v. Einbinder, 184 F.Supp. 523 (D.D.C.1960); 4 Jones, The Law of Evidence \\u00a7 921 (5th ed. 1958); 1 Underhill, Criminal Evidence \\u00a7 163, at 301, \\u00a7 165, at 314 (5th ed. 1956):\\nIf, however, the question calls for an answer, which, though ostensibly invoked solely to aid the jury in estimating the credibility of the accused, may, by showing him guilty of other similar .crimes, indirectly lead them to infer that he is guilty of the crime charged, the court may interfere in its discretion.\\nCompare Michelson v. United States, 335 U.S. 469, 480-481, 487-488, 69 S.Ct. 213, 93 L.Ed. 168 (1948), in which the Supreme Court recognized the trial court's heavy responsibility in regulating the introduction of evidence of the accused's character.\\nMcCormick points out that in England and in Pennsylvania \\\"the accused who takes the stand is shielded, under certain circumstances, from inquiry or proof as to misconduct or conviction of crime when offered to impeach.\\\" McCormick, Evidence \\u00a7 43, at 94 (1954). Both Rule 21 of the Uniform Rules of Evidence and Rule 106 of the American Law Institute's Model Code of Evidence strictly limit the use of past convictions to impeach a defendant's credibility. The former provides:\\nEvidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility. If the witness be the accused in a criminal proceeding, no evidence of his conviction of a crime shall be admissible for the sole purpose of impairing his credibility unless he has first introduced evidence admissible solely for the purpose of supporting his credibility.\\nBoth the Uniform Rules and the Model Code speak in terms of \\\"admissible\\\" evidence, as distinct from evidence that must be admitted. And in Rule 303 the Code sets up a highly desirable guide for the trial judge:\\n(1) The judge may in his discretion exclude evidence if he finds that its probative value is outweighed by the risk that its admission will\\n*\\n(b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury .\\n(2) All Rules stating evidence to be admissible are subject to this Rule unless the contrary is expressly stated.\\n. See Clawans v. District of Columbia, 61 App.D.C. 298, 62 F.2d 383 (1932); Colter v. Einbinder, note 8 supra.\"}"
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+"{\"id\": \"8946\", \"name\": \"Starkweather v. Greenholtz, Acting Warden\", \"name_abbreviation\": \"Starkweather v. Greenholtz\", \"decision_date\": \"1959-06-22\", \"docket_number\": \"No. 989\", \"first_page\": \"921\", \"last_page\": \"921\", \"citations\": \"360 U.S. 921\", \"volume\": \"360\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T19:59:23.648289+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Starkweather v. Greenholtz, Acting Warden.\", \"head_matter\": \"No. 989, Misc.\\nStarkweather v. Greenholtz, Acting Warden.\\nJames J. Laughlin and Albert J. Ahern, Jr. for petitioner. Clarence S. Beck, Attorney General of Nebraska, for respondent.\", \"word_count\": \"33\", \"char_count\": \"215\", \"text\": \"C. A. 8th Cir. Certiorari denied.\"}"
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+"{\"id\": \"9105947\", \"name\": \"UNITED STATES of America, Plaintiff-Appellee, v. Gabriel MENDEZ-LOPEZ, Defendant-Appellant\", \"name_abbreviation\": \"United States v. Mendez-Lopez\", \"decision_date\": \"2003-08-08\", \"docket_number\": \"No. 02-2119\", \"first_page\": \"1153\", \"last_page\": \"1163\", \"citations\": \"338 F.3d 1153\", \"volume\": \"338\", \"reporter\": \"Federal Reporter 3d Series\", \"court\": \"United States Court of Appeals for the Tenth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T20:54:23.078734+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before EBEL, McWILLIAMS, and MURPHY, Circuit Judges.\", \"parties\": \"UNITED STATES of America, Plaintiff-Appellee, v. Gabriel MENDEZ-LOPEZ, Defendant-Appellant.\", \"head_matter\": \"UNITED STATES of America, Plaintiff-Appellee, v. Gabriel MENDEZ-LOPEZ, Defendant-Appellant.\\nNo. 02-2119.\\nUnited States Court of Appeals, Tenth Circuit.\\nAug. 8, 2003.\\nNorman Cairns, Assistant United States Attorney, (David C. Iglesias, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.\\nHoward A. Pincus, Assistant Federal Public Defender, (Michael G. Katz, Federal Public Defender, with him on the brief), Denver, CO, for Defendant-Appellant.\\nBefore EBEL, McWILLIAMS, and MURPHY, Circuit Judges.\\n. In a footnote in his brief, Mendez-Lopez argues that although the Peretz Court concluded consent to the magistrate\\u2019s authority waives the defendant\\u2019s constitutional rights under Article III, Mendez-Lopez could not waive his Article III rights by consent in this case. Specifically, he argues that Article III contains structural protections which cannot be waived, and the procedure in this case would violate these structural protections. Mendez-Lopez, however, fails to articulate these structural protections or explain how permitting the magistrate judge to respond to a jury question with a stipulated answer would violate such protections.\", \"word_count\": \"4663\", \"char_count\": \"29663\", \"text\": \"MURPHY, Circuit Judge.\\nI. INTRODUCTION\\nDefendant Gabriel Mendez-Lopez was charged with possession with intent to distribute at least fifty kilograms of marijuana that he had allegedly secreted in the gas tank of a vehicle, in violation of 21 U.S.C. \\u00a7 841(b)(1)(C). After a jury trial, Mendez-Lopez was convicted and sentenced to 46 months' imprisonment. Mendez-Lopez appeals his conviction, arguing that he was deprived of his Article III right to a federal district judge when a magistrate judge presided over jury deliberations and responded to a question from the jury. Mendez-Lopez also appeals his sentence, arguing that the district court plainly erred in calculating his criminal history category. This court exercises jurisdiction pursuant to 28 U.S.C. \\u00a7 1291 and affirms, concluding that the magistrate judge was authorized to answer the jury's question with a stipulated response and the calculation of Mendez-Lopez's criminal history category was not plainly erroneous.\\nII. BACKGROUND\\nPrior to instructing the jury, the district court obtained the consent of the defense counsel to delegate to a magistrate judge the taking of the verdict. Specifically, the district court stated:\\nThe other thing I wanted to get on the record, if you will consent, my staff and I would like to leave when the jury begins to deliberate and permit Judge Smith to take the verdict. Is that acceptable with you [counsel]?\\nMendez-Lopez was present in court when the district judge explained that he would not be present when the jury deliberated and that a magistrate judge would take the verdict. Also, in the presence of Mendez-Lopez, the district court instructed the jury as follows:\\nI'm reminded by counsel that I made arrangements with Magistrate Judge Smith, who's a resident here in Las Cruces and who is conducting a court hearing here today, to take the verdict for me because I'm going back to Albuquerque, and so is my staff. So they're going to take \\u2014 he's going to take the verdict. But he can get me on my phone at any time while I'm in transit to Albuquerque. So if there's anything that I need to be consulted about, he can do that. And counsel have been advised of this and have agreed to it.\\nMendez-Lopez did not object to the absence of the district judge during jury deliberations nor to the delegation of judicial authority to the magistrate judge.\\nDuring deliberations, the jury sent a note to the magistrate judge asking, \\\"Who is Victor Flores[?] Transportation employee? Previous employee? Previous owner? Exhibit #3 under TAC name!\\\" The magistrate judge convened an off-ree-ord conference in his chambers with counsel for the defense and the government. At the end of the conference, the magistrate judge went on the record and stated the following in the presence of counsel for the defense and the government:\\nAll right. Counsel. I understand that Counsel had stipulated to me sending in the following note: (Reading) Ladies and gentlemen, in response to your note on Exhibit 3, you have heard the evidence; you must rely upon your individual memories of the evidence and be . guided by the instructions of the Court, signed, Judge Smith. Do both sides stipulate to that note in response to the note sent out by the jury with regard to Exhibit 3 and agree that it should be sent in?\\nDefense counsel responded by saying, \\\"On behalf of Mr. Mendez-Lopez, Judge, I do.\\\" The magistrate judge sent the note into the jury room. The jury later returned a guilty verdict.\\nIn sentencing Mendez-Lopez, the district court adopted the factual findings and guideline applications contained in the pre-sentence report (\\\"PSR\\\"). Without objection, Mendez-Lopez was assigned one criminal history point for a misdemeanor conviction of fleeing and eluding a police officer. Because he also had one point for another misdemeanor conviction, Mendez-Lopez was sentenced in criminal history category II. Mendez-Lopez's adjusted offense level was determined to be 22. Therefore, the guideline range provided for a sentence of 46-57 months. The district judge sentenced Mendez-Lopez to 46 months' imprisonment.\\nIII. DISCUSSION\\nA. The magistrate judge's authority\\nMendez-Lopez argues that he was deprived of his right to a judicial officer under Article III of the Constitution because the magistrate judge was not authorized to answer the question from the jury during deliberations. Mendez-Lopez did not raise an objection to the delegation of judicial authority to the magistrate judge to take the verdict from the deliberating jury nor to the magistrate judge's handling of the jury question. Therefore, this court reviews the delegation of judicial authority to the magistrate judge for plain error. United States v. Ciapponi 77 F.3d 1247, 1249 (10th Cir.1996). However, \\\"[bjecause [the] defendant raises a potential constitutional error, we apply the plain error rule less rigidly.\\\" Id. at 1250 (quotation omitted).\\nBy enacting the Federal Magistrates Act, 28 U.S.C. \\u00a7 631-639, \\\"Congress intended magistrates to play an integral and important role in the federal judicial system.\\\" Peretz v. United States, 501 U.S. 923, 928, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991). In addition to expressly authorized tasks, the Federal Magistrates Act authorizes a federal district court judge to \\\"assign[ ] [a magistrate judge to] such additional duties as are not inconsistent with the Constitution and laws of the United States.\\\" 28 U.S.C. \\u00a7 686(b)(3).\\nThe Supreme Court first addressed the issue of what constituted an \\\"additional duty\\\" under the Federal Magistrates Act in Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). In Gomez, the Supreme Court determined that presiding over voir dire in a felony trial without the defendant's consent is not among those \\\"additional duties\\\" to which a magistrate judge can be assigned. Id. at 860, 875-76, 109 S.Ct. 2237. The Gomez Court reasoned that presiding over voir dire in a felony trial was not similar to the specified duties of a magistrate judge under the Federal Magistrates Act. Id. at 871-72, 109 S.Ct. 2237. Further, the Gomez Court noted that voir dire was a critical stage of the criminal proceeding. Id. at 873, 109 S.Ct. 2237. Finally, the Gomez Court reasoned,\\n[a]mong those basic fair trial rights that can never be treated as harmless is a defendant's right to an impartial adjudicator, be it judge or jury. Equally basic is a defendant's right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside. Thus harmless-error analysis does not apply in a felony case in which, despite the defendant's objection and without any meaningful review by a district judge, an officer exceeds his jurisdiction by selecting a jury.\\nId. at 876, 109 S.Ct. 2237 (citation and quotations omitted).\\nThe Supreme Court again examined the meaning of the \\\"additional duties\\\" clause in Peretz. Unlike the defendants in Gomez, the defendants in Peretz consented to the delegation of judicial authority to the magistrate judge to conduct voir dire in their felony trial. Peretz, 501 U.S. at 925, 927-28, 111 S.Ct. 2661. The Peretz Court explained that the \\\"holding in Gomez was narrow\\\" and distinguished Gomez on the basis that \\\"petitioner's counsel, rather than objecting to the Magistrate's role, affirmatively welcomed it.\\\" Id. at 927, 932, 111 S.Ct. 2661. The Peretz Court reasoned that \\\"the defendant's consent significantly changes the constitutional analysis\\\" because it \\\"eliminates [the] concern that a general authorization [i.e., the \\\"additional duties\\\" clause] should not lightly be read to deprive a defendant of any important privilege.\\\" Id. at 932, 111 S.Ct. 2661. Further, the Peretz Court explained,\\n[o]f course, we would still be reluctant, as we were in Gomez, to construe the additional duties clause to include responsibilities of far greater importance than the specified duties assigned to magistrates. But the litigants' consent makes the crucial difference on this score as well. As we explained . the duties that a magistrate may perform over the parties' objections are generally subsidiary matters not comparable to supervision of jury selection. However, with the parties' consent, a district judge may delegate to a magistrate supervision of entire civil and misdemeanor tri als. These duties are comparable in responsibility and importance to presiding over voir dire at a felony trial.\\nId. at 933.\\nInterpreting Peretz, this court held in Ciapponi, that analysis of a defendant's challenge to the authority of a magistrate judge requires two inquiries \\u2014 one statutory and one constitutional. 77 F.3d at 1250. The determination of whether the defendant consented to the delegation of judicial authority to the magistrate judge is critical to both inquiries. Id. Under the statutory inquiry, the reviewing court must determine whether the task at issue falls within the \\\"additional duties\\\" clause, i.e., does the task \\\"bear[ ] some reasonable relation to the specified duties which may be assigned to magistrate judges under the Federal Magistrates Act.\\\" Id. (footnote omitted). Under the constitutional inquiry, the court must determine whether, even if the task is authorized, it \\\"impinges [on the] criminal defendant's constitutional right under Article III to have a district judge preside at all critical stages of a felony trial,\\\" i.e., whether the defendant has \\\"consented] to proceed before a magistrate judge . because no constitutional right is implicated if the defendant does not object to the absence of an Article III judge.\\\" Id.\\nMendez-Lopez concedes that a defendant implicitly consents to the magistrate judge's authority if the defendant is present when the district court judge delegates judicial authority and fails to object. See Peretz, 501 U.S. at 933, 111 S.Ct. 2661 (citing favorably the decisions of the Second, Third, and Seventh Circuits which held that the decision in Gomez did not apply when a defendant failed to object to the magistrate judge's exercise of delegated authority). While Mendez-Lopez failed to object to the district court's delegation of judicial authority to the magistrate judge, he argues that the district court only delegated judicial authority to the magistrate judge to take the verdict. Therefore, Mendez-Lopez contends, his consent was limited.\\nIn addition to specifically delegating judicial authority to the magistrate judge to take the verdict, the district court judge also explained that the magistrate judge could contact him via telephone while he was in transit \\\"if there's anything that [he] need[ed] to be consulted about.\\\" Further, in the presence of Mendez-Lopez, the district court judge explained that counsel had been advised of and agreed to this arrangement. Therefore, Mendez-Lopez consented to the magistrate judge's handling of the deliberating jury unless a need arose to consult the district judge.\\nIn this case, the magistrate judge responded to the jury's question by providing an answer stipulated to by both the defense and the government. There is no indication in the record that either the defense or the government requested consultation with the district court judge. Moreover, as there was no testimony given regarding the exhibit that was the subject of the jury's question, the defense does not assert there was any other answer to the jury's question. Given the scope of the delegation of authority and the actions actually taken by the magistrate judge, Mendez-Lopez consented to the magistrate judge's authority in this case.\\nThis court must next determine whether responding to a jury question with the consent of the parties is similar to the duties explicitly assigned to magistrate judges under the Federal Magistrates Act. Ciapponi, 77 F.3d at 1250. Under Peretz, even tasks that are consented to by the parties must not be of \\\"far greater importance than the specified duties assigned to magistrates.\\\" 501 U.S. at 933, 111 S.Ct. 2661. Answering a jury question with a response stipulated to by both parties is not of far greater importance or responsibility than handling a civil or misdemeanor trial, tasks to which a magistrate judge may be delegated with the consent of the parties. 28 U.S.C. \\u00a7 636(c)(1); 18 U.S.C. \\u00a7 3401(b); see Peretz, 501 U.S. at 933, 111 S.Ct. 2661 (explaining that presiding over voir dire at a felony trial is comparable in responsibility and importance to presiding over a civil and misdemeanor trial). Therefore, the magistrate judge was authorized under the \\\"additional duties\\\" provision of the Federal Magistrates Act to respond to the jury question with the consent of the parties.\\nFinally, this court must address the constitutional inquiry, ie. whether, even though authorized, the magistrate's conduct violated Mendez-Lopez's Article III rights. Ciapponi, 77 F.3d at 1250. Like the defendant in Peretz, Mendez-Lopez failed to object to the deprivation of his Article III rights. These rights are, therefore, waived. Peretz, 501 U.S. at 936-37, 111 S.Ct. 2661 (holding that \\\"a defendant has no constitutional right to have an Article III judge preside at jury selection if the defendant has raised no objection to the judge's absence\\\").\\nAccordingly, the district court did not err in delegating judicial authority to the magistrate judge, with Mendez-Lopez's consent, to answer the jury's question with a stipulated response. Moreover, such delegation did not violate Article III.\\nB. Calculation of Mendez-Lopez's criminal history category\\nMendez-Lopez argues that the district court erred in calculating his criminal history category by assigning him a criminal history point for his prior misdemeanor conviction for fleeing or eluding a police officer. Because Mendez-Lopez failed to object to the calculation of his criminal history category below, this court reviews the district court's sentencing determination for plain error. United States v. Battle, 289 F.3d 661, 669 (10th Cir.2002). Under the plain error standard, this court reviews the district court's sentencing determination \\\"for particularly egregious or obvious and substantial legal error, which our failure to consider would result in a miscarriage of justice.\\\" United States v. Lowder, 5 F.3d 467, 472 (10th Cir.1993) (quotations omitted). The dissent reasons that \\\"application of an incorrect sentencing range would constitute plain error, and merits reversal and remand for resentencing.\\\" While an error in sentencing may affect the substantial rights of the defendant, reversal is not appropriate under a plain error review unless the error was \\\"clear and obvious.\\\" United States v. Whitney, 229 F.3d 1296, 1308-09 (10th Cir. 2000) (holding that the sentencing error did not rise to plain error, reasoning that \\\"[a]lthough, we have held that 'basing a sentence on the wrong guideline range constitutes a fundamental error affecting substantial rights within the meaning of Rule 52(b),' thereby satisfying the third prong of the plain error inquiry, [the defendant] cannot establish the second requirement, that, if there was error, it was plain\\\").\\nUnder U.S.S.G. \\u00a7 4A1.2(e)(l), misdemeanor offenses are counted in calculating criminal history except when the offense is similar to a listed offense, unless the defendant was sentenced to a term of probation of at least one year or a term of imprisonment of at least thirty days, or the prior offense was similar to the instant offense. United States v. Perez de Dios, 237 F.3d 1192, 1196-97 (10th Cir.2001). Mendez-Lopez argues that the offense of fleeing or eluding police is similar to hindering or failing to obey a police officer and resisting arrest, two offenses listed in \\u00a7 4A1.2(c)(l).\\nAn offense is \\\"similar\\\" to a listed offense if the offenses have the same essential characteristics. Perez de Dios, 237 F.3d at 1198-99 (applying the \\\"essential-eharacteristics-of-the-erime comparison\\\" and noting with approval the approach taken by the United States Court of Appeals for the Eighth Circuit in defining \\\"similar\\\" as \\\" '[n]early corresponding; resembling in many respects; somewhat alike; having a general likeness.' \\\" (citation omitted)). Under Kansas law, the offense of fleeing or eluding a police officer is defined as:\\nAny driver of a motor vehicle who willfully fails or refuses to bring such driver's vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop....\\nKan. Stat. Ann. \\u00a7 8-1568(a). Failing to comply with a police officer's order and resisting arrest, however, are prohibited under separate provisions of Kansas law. Kan. Stat. Ann. \\u00a7 8-1503 (designating as a misdemeanor the \\\"willful[ ] failfure] or refusal] to comply with any lawful order or direction of any police officer\\\"); Kan. Stat. Ann. \\u00a7 21-3217 (stating \\\"[a] person is not authorized to use force to resist an arrest which he knows is being made . by a law enforcement officer\\\"). Although this court recognizes that the proper question before the court is whether the crime for which Mendez-Lopez was convicted is \\\"similar\\\" to those offenses listed in U.S.S.G. \\u00a7 4A1.2(c)(l), the separate treatment given to hindering or failing to obey a police officer and resisting arrest under Kansas law suggests that fleeing or eluding a police officer is not a \\\"similar\\\" offense.\\nFurther, Mendez-Lopez concedes that the offense of fleeing or eluding the police, unlike the offenses of hindering or failing to obey a police officer and resisting arrest, requires the use of a motor vehicle. While the dissent argues that this court should not \\\"parse the elements of the crimes,\\\" the distinction between an offense which involves a motor vehicle and one which does not is significant. Committing an offense while in a motor vehicle inherently increases the potential threat to public safety. The distinction between the threat sought to be deterred by criminalizing fleeing or eluding police and that sought to be deterred by criminalizing hindering or failing to obey a police officer and resisting arrest further supports the conclusion that these offenses are not \\\"similar.\\\"\\nEven assuming that the offense of fleeing or eluding police is arguably \\\"similar\\\" to the offenses listed in \\u00a7 4A1.2(c)(l), such similarity is not \\\"obvious\\\" and the district court's failure to recognize such similarity is not \\\"particularly egregious.\\\" See Lowder, 5 F.3d at 472 (quotation omitted); Whitney, 229 F.3d at 1308-09. Employing a per se plain error test, the dissent concludes that the erroneous calculation of Mendez-Lopez's criminal history score is plain error simply because it changed Mendez-Lopez's sentencing range. Such an approach is contrary to clearly settled circuit precedent. Whitney, 229 F.3d at 1308-09 (holding that an error which affects a defendant's substantial rights must be clear and obvious to constitute plain error). Therefore, the district court did not plainly err in assessing Mendez-Lopez a criminal history point for his prior misdemeanor conviction.\\nIV. CONCLUSION\\nFor the foregoing reasons, this court affirms Mendez-Lopez's conviction and sentence.\\n. Mendez-Lopez's unopposed motion to supplement the record with the note from the deliberating jury and the transcript of the proceedings regarding the jury note is granted.\\n. Mendez-Lopez argues that this court should review the delegation of authority to the magistrate judge de novo because he was not physically present when the magistrate judge answered the question from the jury and was unable to object. Mendez-Lopez, however, was present when the district court delegated judicial authority to the magistrate judge. As discussed infra, this court holds that Mendez-Lopez consented to the actions of the magistrate judge in this case. Therefore, because Mendez-Lopez failed to object to the delegation of judicial authority to the magistrate judge, this court reviews such delegation for plain error. United States v. Ciapponi, 77 F.3d 1247, 1249 (10th Cir.1996).\\n. The Peretz Court explained that \\\"[ijmmedi-ately before the jury selection commenced, the Magistrate asked for, and received, assurances from counsel for petitioner and from counsel for his codefendant that she had their clients' consent to proceed with the jury selection.\\\" Peretz v. United States, 501 U.S. 923, 925, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) (footnote omitted).\\n. Mendez-Lopez also argues that while his counsel specifically consented to the magistrate judge's authority to answer the question from the jury, this consent is insufficient under Peretz. Because this court concludes, as discussed below, that Mendez-Lopez's implicit consent encompassed the magistrate judge's actions, we need not reach the issue of whether defense counsel's consent is sufficient under Peretz.\\n. The listed offenses in U.S.S.G. \\u00a7 4A1.2(c)(l) include: \\\"Careless or reckless driving\\\"; \\\"Contempt of court\\\"; \\\"Disorderly conduct or disturbing the peace\\\"; \\\"Driving without a license or with a revoked or suspended license\\\"; \\\"False information to a police officer\\\"; \\\"Fish and game violations\\\"; \\\"Gambling\\\"; \\\"Hindering or failure to obey a police officer\\\"; \\\"Insufficient funds check\\\"; \\\"Leaving the scene of an accident\\\"; \\\"Local ordinance violations (excluding local ordinance violations that are also criminal offenses under state law)\\\"; \\\"Non-support\\\"; \\\"Prostitution\\\"; \\\"Resisting arrest\\\"; \\\"Trespassing.\\\"\\n. Mendez-Lopez was convicted of three separate offenses, i.e., fleeing or eluding the police; speeding; and not possessing a driver's license. While the dissent argues that Mendez-Lopez's conviction for speeding is similar to the listed offense of \\\"Minor traffic infractions (e.g. speeding)\\\" and his conviction for not possessing a driver's license is similar to \\\"Driving without a License or with a revoked or suspended license,\\\" we need not consider these convictions in light of our conclusion that the offense of fleeing and eluding is not \\\"similar\\\" to the listed offenses in U.S.S.G. \\u00a7 4A1.2(c).\"}"
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+"{\"id\": \"9355081\", \"name\": \"Alcaras-Navarro v. United States; and Gomez-Hernandez v. United States\", \"name_abbreviation\": \"Alcaras-Navarro v. United States\", \"decision_date\": \"2003-01-13\", \"docket_number\": \"No. 02-7684; No. 02-7705\", \"first_page\": \"1138\", \"last_page\": \"1138\", \"citations\": \"537 U.S. 1138\", \"volume\": \"537\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T22:13:48.691136+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Alcaras-Navarro v. United States; and Gomez-Hernandez v. United States.\", \"head_matter\": \"No. 02-7684.\\nNo. 02-7705.\\nAlcaras-Navarro v. United States; and Gomez-Hernandez v. United States.\", \"word_count\": \"25\", \"char_count\": \"163\", \"text\": \"C. A. 8th Cir. Certiorari denied. Reported below: 300 F. 3d 974.\"}"
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