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51 The Insurance Company raises several allegations of error in the trial court's evidentiary rulings 27 and jury instructions. We have reviewed those claims, and, in light of our prior rulings, conclude that any error committed must be deemed harmless. 52

Insurance Company's Assertions of Trial Error.

Petitioners also argue that the FEIS, in addressing the effects of the past mining operations, erroneously treated the airborne radiation already being emitted from the debris as naturally occurring rather than as man-made background radiation. Even if it did so, the FEIS still adequately considered the cumulative impact from all of these sources of airborne radiation, regardless of how the NRC characterized that airborne radiation.

Whether the NRC erred in characterizing the airborne radiation emitted from the prior conventional mining operation as background radiation

The Park District challenges the judgment against it for breach of contract even though damages were assessed at a nominal $1. The district court held that Commissioner Burroughs's casual remark—You're still there, aren't you? That's all you need to do.—created an implied-in-fact contract requiring the Park District to give Kelley reasonable notice before reconfiguring Wildflower Works. Although factual findings about the existence of a contract are reviewed for clear error, ReMapp Int'l Corp. v. Comfort Keyboard Co., 560 F.3d 628, 633 (7th Cir.2009), there is a threshold legal question here about the commissioner's unilateral authority to bind the Park District to a contract. Our review is de novo. See Manning v. United States, 546 F.3d 430, 432 (7th Cir.2008). Two statutes guide our analysis. The first is the Chicago Park District Act, which provides in relevant part that [t]he commissioners of [the Park District] constitute the corporate authorities thereof, and have full power to manage and control all the officers and property of the district, and all parks, driveways, boulevards and parkways maintained by such district or committed to its care and custody. 70 ILL. COMP. STAT. 1505/7.01. The district court noted the statute's use of the plural commissioners and authorities and concluded from this that each individual commissioner was a separate corporate authority with the power to unilaterally bind the Park District. This conclusion strains the statutory language and ignores how public bodies customarily operate. It also contradicts another provision in the Illinois Park District Code, which applies to all Illinois park districts and must be read in conjunction with the Chicago Park District Act. The Illinois Park District Code states: No member of the board of any park district . . . shall have power to create any debt, obligation, claim or liability, for or on account of said park district. . . except with the express authority of said board conferred at a meeting thereof and duly recorded in a record of its proceedings. 70 ILL. COMP. STAT. 1205/4-6 (emphasis added). When read together, these statutes confirm that there is only one corporate authority of the Chicago Park District—its Board of Commissioners—and that individual commissioners cannot unilaterally bind the Park District's Board to a contract without express Board approval. There is no evidence that the Park District's Board of Commissioners authorized Commissioner Burroughs to enter into a contract with Kelley. Moreover, Illinois law provides that ultra vires contracts entered into by municipal corporations are invalid, see, e.g., McMahon v. City of Chicago, 339 Ill.App.3d 41, 273 Ill.Dec. 447, 789 N.E.2d 347, 350 (2003), so Commissioner Burroughs's offhand remark cannot have created a valid implied-in-fact contract. The judgment for Kelley on the contract claim was premised on legal error; the Park District was entitled to judgment on this claim. For the foregoing reasons, we AFFIRM the judgment in favor of the Park District on the VARA claim; we REVERSE the judgment in favor of Kelley on the contract claim and REMAND with instructions to enter judgment for the Park District.

The Park District's Cross-Appeal on the Contract Claim

50 In Valenti, 987 F.2d at 715, this Circuit held that a dual-docketing system, or sealed docket, in the Middle District of Florida violated the press and public's First Amendment right of access to criminal proceedings, and declared it facially unconstitutional. In striking down that system, we recognized that public docket sheets are essential to provide meaningful access to criminal proceedings. 15 Id. Thus, we held that the press and public's qualified First Amendment right to access criminal proceedings extends to the proceedings' docket sheets. Id.; accord Hartford Courant Co., 380 F.3d at 91 (concerning the secret docketing procedures in Connecticut state courts). 51 Because the district court's orders unsealing dockets here brought them in compliance with Valenti, the secret-docketing issue is not properly before us. We nevertheless exercise our supervisorial authority to remind the district court that it cannot employ the secret docketing procedures that we explicitly found unconstitutional in Valenti. 52

Constitutionality of Secret Docketing Procedures in Ochoa-Vasquez

First, the CFRA prohibits state contractors and lobbyists from making campaign contributions to candidates for state office. See Conn. Gen.Stat. §§ 9-610(g), 9-612(g)(2)(A)-(B). The CFRA's ban on contractor contributions applies to any person, business entity or nonprofit organization that enters into a state contract. Id. § 9-612(g)(1)(D). It also applies to any prospective contractor; to any principal of a contractor or prospective contractor; and to the spouse or dependent child [2] of a contractor, a prospective contractor, or a principal of a contractor or prospective contractor. Id. § 9-612(g)(2). (We discuss these terms in detail below.) In addition, the ban on contractor contributions is what might be called branch specific. If the contract in question is with or from a state agency in the executive branch, the contractor may contribute to a candidate for the General Assembly but not to a candidate for an executive office ( i.e., a candidate for Governor, Lieutenant Governor, Attorney General, State Comptroller, Secretary of the State or State Treasurer). Id. § 9-612(g)(2)(A). If the contract in question is with or from the General Assembly, the contractor may contribute to a candidate for an executive office but not to a candidate for the General Assembly. Id. § 9-612(g)(2)(B). [3] Nonetheless, any holder, or principal of a holder of a valid prequalification certificate, such a certification being required in order to bid or perform work on certain high-cost, state-funded projects, is precluded from contributing to candidates for either branch of government. Id. § 9-612(g)(2)(A)-(B). Further, all individuals and entities covered by the contractor ban are prohibited from contributing to any state or town [p]arty committee. Id. § 9-601(1)-(2). The CFRA's ban on lobbyist contributions applies to any communicator lobbyist, defined (a) as someone compensated for lobbying over the threshold amount of $2,000 in any calendar year, Green Party I, 590 F.Supp.2d at 295 n. 3 (quoting State Elections Enforcement Commission (SEEC) Declaratory Ruling 2006-1, at 2), and (b) as a lobbyist who communicates directly or solicits others to communicate with an official or his staff in the legislative or executive branch of government or in a quasi-public agency for the purpose of influencing legislative or administrative action, Conn. Gen.Stat. § 1-91(v). The ban on lobbyist contributions also applies to the spouse or dependent child of a communicator lobbyist. See id. § 9-610(g) (applying the ban to the immediate family of a communicator lobbyist); id. § 9-601(24) (defining [i]mmediate family as the spouse or a dependent child of an individual). [4]

Contribution Bans

cation, the pumping system receiving information from a user, the pumping system comprising: a pump; a motor coupled to the pump; a control system operating as a master controller, the control system including an automation sys- tem, the control system including a remote Case: 19-1821 Document: 55 Page: 3 Filed: 06/12/2020 HAYWARD INDUSTRIES, INC. v. PENTAIR WATER POOL AND SPA 3 keypad and display connected to the automation system; and a pump controller located remotely from the con- trol system, the pump controller coupled to at least one of the pump and the motor, the pump controller operating as a slave controller when connected to the control system, the pump controller in digital communication with the motor and the control system, the pump controller transmitting information to and receiving information from the control system over at least one communication link, the pump controller operating the motor to substantially optimize energy consumption based on the information entered into the re- mote keypad by the user and received from the control system, the pump controller operating independently to control the motor to optimize energy con- sumption when disconnected from the control system. ’597 patent col. 13, ll. 33–58 (emphasis added to indicate disputed claim limitations). The prior art reference at issue in this case is U.S. Patent Publication No. 2003/0061004 (“Discenzo”). Discenzo discloses a control system for control of pumps and motors to provide optimized performance of a pumping system. Discenzo teaches various pumping systems, some of which are connected to a host computer for the purpose of receiving and sending information to control the system.

A pumping system for at least one aquatic appli-

Lareka Laws challenges the district court’s denial of her motion for a judgment of acquittal. She asserts that the government’s evidence was insufficient to establish who in fact owned the real estate identified on the tax returns, or that the properties could not properly qualify for the homebuyer tax credit. She also argues that the government failed to prove that she had sufficient intent to defraud, or that any fraudulent claims she made were material. We review the denial of a motion for judgment of acquittal de novo. United States v. Ford, 726 F.3d 1028, 1033 (8th Cir. 2013), cert. denied, 135 S. Ct. 131 (2014) (citing United States v. Lewis, 557 F.3d 601, 612 (8th Cir. 2009)). When a motion for judgment of acquittal is based on insufficiency of the evidence, we view all evidence in the light most favorable to the verdict, accept all reasonable inferences in support of the verdict, and reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id. We conclude that the evidence against Laws was sufficient to support the jury’s guilty verdict. The evidence included more than 200 tax returns that improperly claimed a first-time homebuyer tax credit, a significant number of which Laws personally prepared; deposit of the credits into one of 17 accounts owned by a -12- member of the Laws family, including two accounts owned or co-owned by Lareka Laws; an admission by Laws that she had filed some of the relevant tax returns; testimony that Laws knew that the individuals she was filing returns for were not entitled to the homebuyer credit; and testimony that Laws had fabricated information on the tax returns she filed. Viewing this evidence in the light most favorable to the jury’s verdict and accepting all reasonable inferences in favor of the verdict, we cannot say that no reasonable jury could have found Laws guilty beyond a reasonable doubt. Though the jury could alternatively have accepted the arguments Laws advances on appeal, it was not required to do so. See United States v. Hively, 437 F.3d 752, 761 (8th Cir. 2006). Because the evidence was sufficient to support a verdict of guilty, the district court did not err in denying Laws’ motion for a judgment of acquittal.

Lareka Laws

14 Because of the deafening congressional silence regarding retrospective application, this interpretive conflict is controlled by the characterizations attributed to the CMPL. It appears that Congress generally intended the CMPL to be a procedural, civil alternative to ameliorate the pattern of underenforcement of criminal statutes. Because of the similarity of their provisions, it is not wholly unreasonable to adopt the Secretary's interpretation that the CMPL was also intended to provide a procedural alternative to the FCA. Most of the CMPL provisions are procedural. However, the CMPL enlarged the scope of substantive liability, allowing prosecution of those who had reason to know that their claims were not provided for. Whether this substantive change so colors the nature of the Act as to make the CMPL substantive law for retroactivity purposes is the question before us. 15 Little guidance exists on whether the statute as a whole can be characterized as procedural. In somewhat similar circumstances, this court concluded that the congressional purpose in shoring up the enforcement mechanisms of the Shipping Act of 1916, 46 U.S.C. Sec. 801 et. seq. (1970), was procedural and remedial in nature. In United States v. Blue Sea Line, 553 F.2d 445 (5th Cir.1977), we faced the question whether the government could bring a criminal prosecution under a repealed statute for acts antedating the statute's repeal, as Congress had replaced the statute's criminal sanctions with civil penalties and transferred jurisdiction of some claims to an administrative commission. Affirming the district court's dismissal of the indictment and holding the amendments applicable to pre-amendment violations, the court described congressional intent as follows: 16 By these changes Congress hoped to strengthen enforcement of the Shipping Act's commands. The government's reduced burden of proof in civil penalty proceedings would simplify documentation of violations, increasing the likelihood of successful prosecution and diminishing the delay between violation and penalty. Both these consequences would tend to increase the Act's deterrent impact without altering the substance of the Act's penalties. Additionally, by authorizing Maritime Commission compromise of civil penalties, the 1972 amendments provided a tool for reducing duplicative Justice Department review and expensive federal litigation. 17

Unreasonable Characterization of the CMPL for Retroactivity Purposes

6 The issue before this court is limited to the question whether the CCC, a government agency, can obtain damages for an unperformed oral contract for carriage. We believe that both the relevant statutes and regulations require that government contracts such as the charter agreement here be written in order to be enforceable by the Government. Hence, in answer to the certified question we hold that this oral contract is unenforceable. 7 In 1955 the Congress, troubled by executive spending, 6 enacted 1311(a)(1) of the Supplemental Appropriation Act. 7 This section provided that 8 After August 26, 1954 no amount shall be recorded as an obligation of the Government of the United States unless it is supported by documentary evidence of-- 9 (1) a binding agreement in writing between the parties thereto, including Government agencies, in a manner and form and for a purpose authorized by law, executed before the expiration of the period of availability for obligation of the appropriation or fund concerned for specific goods to be delivered, real property to be purchased or leased, or work or services to be performed. 8 10 The original purpose of the statute was to prevent executive officials from excessive or inappropriate spending. 9 11 The parties to this litigation urge contrary interpretations of this provision. On the one hand, the Government urges that the statute is simply a recordation statute to facilitate auditing and has no effect on government contracts with private parties. On the other hand, ARL argues that the provision, in conjunction with certain regulations, establishes virtually a statute of frauds for such government contracts as involved here. Sustaining the government position here would remove reciprocally the protection of the Government which was the initial intent of the statute, and this we decline to do. 12 We hold that the statute does establish a requirement that government contracts of this type be in writing, and that contracts which are merely oral are not enforceable. We agree with the Government that this statute does not follow the typical statute of frauds format. 10 But we do not believe that to be determinative. Rather, we feel that the Congress was concerned that the executive might avoid spending restrictions by asserting oral contracts, and so enacted the requirement of a writing. 11 13 The Supreme Court long ago considered a similar question in Clark v. United States. 12 Although the statute there involved has since been repealed, it was similar to the statute here in that it required government contracts of certain departments to be in writing. 13 The Supreme Court held that this statute effectively established a statute of frauds. The oral agreement made by the Government to charter a steamer from a private party was hence void. The Court, however, did allow the owner of the steamer to recover from the Government for the value of services rendered, on a theory of quantum meruit. 14 Justice Bradley wrote for the Court: 14 The facility with which the government may be pillaged by the presentment of claims of the most extraordinary character, if allowed to be sustained by parol evidence, which can always be produced to any required extent, renders it highly desirable that all contracts which are made the basis of demands against the government should be in writing. Perhaps the primary object of the statute was to impose a restraint upon the officers themselves, and prevent them from making reckless engagements for the government; but the considerations referred to make it manifest that there is no class of cases in which a statute for preventing frauds and perjuries is more needed than in this. 15 15 While the Clark case dealt with a private party trying to collect from the Government, the principles enunciated above remain true when the situation is reversed and the Government is seeking damages. The requirement of a written contract protects both sides from the possibility of fraud or misinterpretation by the other. And, on the principle of mutuality, it is not appropriate for the Government to assert the lack of a written contract when it wishes an agreement to lapse, but to waive such an objection when it wishes to enforce an agreement. 16 In fact, if the Government's position of no mutuality were accepted, the agreement would not meet the basic contractual prerequisite of consideration from each contracting party. 16 For if the Government could avoid its part of the bargain by asserting lack of a written contract, the Government would be making merely an illusory promise: the Government would pay the agreed price for the services only if it wished and if it had complied with the statute (and regulations, infra). The Government could avoid payment by citing the statute and its own failure to follow its own regulations, and then the private party would be limited to quantum meruit. Such an arrangement clearly would not satisfy the requirement of mutual consideration. 17 The Supreme Court decision in 1915 of United States v. New York and Porto Rico SS Co. 17 can be distinguished from the present case. In that earlier case, the Government sought to recover from a private steamship company which had not performed its written agreement to ship coal. The company raised as a defense the failure of the Government to comply with the exact writing requirements of the same statute as involved in Clark, 18 by not producing proper copies and seals. The Court held that the Government could waive the requirements because it was the only intended beneficiary of the protection. The private company 'needs no such protection against a written undertaking signed by himself.' 19 In the case at bar, however, what is lacking is not simply the proper form or seal but a written contract in its entirety. Such of the entire agreement as was made was made orally, and no writing was sent until after the agreement was repudiated. ARL claims that vital provisions were never agreed upon, and disputes the CCC version of what was actually agreed to, e.g., whether long or short tons were meant is still in controversy. Protection for the private company, as well as the Government, is necessary under these circumstances. 18 A somewhat related issue was considered by the Court of Claims in Escote Manufacturing Co. v. United States. 20 There the court stated that an oral contract to buy surplus government property was as binding on the private party as if it had been in writing. However, the facts in Escote are markedly different from this case. In Escote the private bidder had sent a written bid and check for deposit in response to the Government's invitation to bid for surplus goods. The Government then sent the bidder a letter containing three copies of a form headed 'Invitation, Bid, and Acceptance' for signature by the bidder. The bidder sought to avoid the contract on the ground that the contracting officer of the Government had not signed the form, but his name was only typewritten. Thus, the issue was not whether there was a written agreement, but simply whether the signature of the contracting officer was required. 19 Although Escote was decided after the 1955 statute requiring written contracts, the Court of Claims stated that the parties had not identified any statute requiring a writing. The court felt that the contract forms sent by the Government to the private buyer, which were not signed, were merely part of the Government's bookkeeping system. At no time in its opinion did the court give consideration to the statute or regulations in effect here. Consequently, the Escote opinion is of limited value in deciding this case. 21 20 We view the statute as establishing a requirement that a government contract as involved here be in writing before either party may be allowed to obtain court enforcement of the agreement. The statute admittedly is not phrased as the typical statute of frauds. It is more specific, in that it requires that the contract be supported by documentary evidence of a binding agreement in writing. 22 Although the statute simply bars recording oral contracts as obligations of the Government, 23 this does not mean that recordation is the only purpose or effect of the statute. If the Government does not fulfill the recordation requirements, it can neither automatically take the benefit of an agreement it has allegedly made, nor can it be hurt by another party alleging an agreement. Mutuality of protection is thus provided, and we do not see by the Government's interpretation of the statute anything but one-sided protection would be afforded. 21 We believe that this interpretation of the statute is in accordance with the legislative intentions. The House Conference Report on the provision offers a succinct summary of the legislative view: 22 Section 1311(a)(1) precludes the recording of an obligation unless it is supported by documentary evidence of a binding agreement between the parties as specified therein. It is not necessary, however, that this binding agreement be the final formal contract on any specified form. The primary purpose is to require that there be an offer and an acceptance imposing liability on both parties. For example, an authorized order by one agency on another agency of the Government, if accepted by the latter and meeting the requirement of specificity, etc., is sufficient. Likewise, a letter of intent accepted by a contractor, if sufficiently specific and definitive to show the purposes and scope of the contract finally to be executed, would constitute the binding agreement required. 24 23 Several regulations of the Executive branch further support our view that a written contract is necessary to bind ARL here. The regulations include general Federal Procurement Regulations 25 and regulations specific to the CCC. 26 24 The Federal Procurement Regulations (FPR's) were promulgated pursuant to the Federal Property Act 27 to regulate all government agency procurement. Specifically FPR 1-1.208 provides a definition of contract: 25 'Contract' means establishment of a binding legal relation basically obligating the seller to furnish personal property or nonpersonal services (including construction) and the buyer to pay therefor. It includes all types of commitments which obligate the Government to an expenditure of funds and which, except as otherwise authorized, are in writing. In addition to a two-signature document, it includes all transactions resulting from acceptance of offers by awards or notices of awards; agreements and job orders or task letters issued thereunder; letter contracts; letters of intent; and orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance. It also includes contract modifications. 26 The Government urges that 1-1.208 merely says that a contract is the 'establishment of a binding legal relation' and is broadly defined to include oral agreements. We believe that the Government has misinterpreted the definition. The regulation requires a writing, except as otherwise authorized. It does not require a formal two-signature document, but it does require some form of writing, whether letters of intent, or purchase orders, or some other written manifestation. 27 It must be noted that the scope of the FPR's is limited by the Federal Property Act, which states in relevant part that the Act and accompanying regulations shall not be interpreted to impair the authority of any executive agency with respect to any phase, including transportation, 28 of any program conducted for purposes of resale, price support, grants to farmers, stabilization, transfer to foreign governments, or foreign aid, relief, or rehabilitation: Provided, That the agency carrying out such program shall, to the maximum extent practicable, consistent with the fulfillment of the purposes of the program and the effective and efficient conduct of its business, coordinate its operations with the requirements of said chapters and the policies and regulations prescribed pursuant thereto. 28 29 Thus, while the FPR's are not mandatory, and agencies may carve out exceptions, there is strong pressure on the CCC to conform to them insofar as possible. 29 30 The CCC has not adopted regulations exempting it from the writing requirement in the FPR definition of contract. Not only do CCC regulations explicitly adopt the FPR's, 30 but also CCC's own regulations incorporate an additional writing requirement. 31 And, the Government has pointed to no cases wherein the CCC has stated that it rejects the requirement of a writing. The Government does suggest that the CCC's charter instructs it to follow the usual and customary channels of trade and commerce, 32 and that oral contracts to be followed by written charters are customary. Whether such oral agreements are customary in shipping, we do not believe that the CCC charter provision was intended to cover the formalities of a contract; rather, it tells the CCC to use normal commercial, as opposed to governmental, means for transporting goods. In the face of the regulations governing the CCC, this charter provision should not be interpreted as removing the writing requirement. 31 A regulation more directly applicable to the CCC is 7 C.F.R. 11.12(a), which provides specifically for ocean transportation of goods for the CCC: 32 The cost of ocean transportation will be financed by CCC only when specifically provided for in the purchase authorization. Unless the purchase authorization provides otherwise, this section will apply to the financing of ocean transportation. Unless otherwise specifically provided in the applicable purchase authorization or unless otherwise requested by FAS, the pertinent terms of all proposed charters . . . and all proposed liner bookings must be submitted to the appropriate USDA Office . . . for review and approval prior to fixture of the vessel. Tentative advance approvals may be obtained by telephone or telegram, provided Form CCC 105, Ocean Shipment Data-PL 480 ('Request for Vessel Approval'), is furnished promptly confirming the information supplied by telephone or telegram. Approvals of charters and liner bookings will be given on Form CCC 106, 'Advice of Vessel Approval.' 33 Thus, use of particular forms is required prior to 'fixture' of a ship. While the regulation does not explicitly state that an oral contract is unenforceable, that meaning is apparent. 34 The Government objects that the CCC regulations are inapplicable because the foodstuffs were being shipped under Title II of PL 480, rather than Title I. The significance of this difference is that Title I provides for the sale of surplus agricultural commodities overseas and is administered by the U.S. Department of Agriculture. Title II provides for the donation of surplus agricultural commodities for relief and is administered by the State Department. The CCC regulations apply only to Title I. 33 The State Department regulations do not provide any form or writing requirement for a contract. 34 35 As ARL correctly points out, there was no indication given by the Government that Title II rather than Title I activity was being undertaken. ARL was negotiating with the CCC and had a right to assume that the CCC would follow its own published regulations. Furthermore, while Title II regulations do not mention writing of contracts, AID has specifically adopted the FPR's in general, with no exception from the definition of contract. 35 So, even if Title II were applicable, the FPR definition would still be effective. 36 The Government also argues that even if Title I were applicable, it merely establishes requirements for importing countries to produce written charters for ocean transportation to obtain USDA approval of financing. 36 Whether or not the writing requirement is directed to importing countries or shippers, the fact remains that certain forms are to be used before USDA approval will be granted; USDA need not finance any non-conforming charters. We believe this suggests a requirement of a written contract, similar to the statutory requirement. Unenforceability of any oral agreement determines the position of both parties: just as USDA could refuse to finance the oral charter here, so, too, can ARL raise the lack of writing as a defense to an action for breach of contract.

the enforceability of the oral contract by the government

Barlow first argues that the district court erred in denying his motion for discovery because he produced sufficient evidence to warrant further investigation of his claim that the DEA agents had engaged in racial profiling. We review the denial of a motion for discovery in a criminal case for abuse of discretion. United States v. Bastanipour, 41 F.3d 1178, 1181 (7th Cir. 1994). Barlow’s motion for discovery invoked Armstrong, in which the Supreme Court defined the showing necessary for a defendant to obtain discovery on a selective prosecution claim. 517 U.S. at 465. Barlow complains not of selective prosecution, but of racial profiling, a selective law enforcement tactic. But the same analysis governs both types of claims: a defendant seeking discovery on a selective enforcement claim must meet the same “ordinary equal protection standards” that Armstrong outlines for selective prosecution claims. See Armstrong, 517 U.S. at 465; Chavez v. Ill. State Police, 251 F.3d 612, 635-36 (7th Cir. 2001); United States v. Hayes, 236 F.3d 891, 895 (7th Cir. 2001). To prevail on his motion, therefore, Barlow needed to demonstrate that the agents’ actions had a discriminatory effect and that the agents had a discriminatory purpose when they approached him in Union Station. Armstrong, 517 U.S. at 465; Chavez, 251 F.3d at 635-36; Hayes, 236 F.3d at 895. Law enforcement has a racially discriminatory effect when members of a protected racial group—in this case 6 No. 01-1273 African Americans—receive less favorable treatment than nonmembers. See Armstrong, 517 U.S. at 465; Chavez, 251 F.3d at 636; Hayes, 236 F.3d at 895. In other words, to establish discriminatory effect, an African American claimant must demonstrate that a law or regulation was enforced against him, but not against similarly situated individuals of other races. Armstrong, 517 U.S. at 465; Chavez, 251 F.3d at 636; Hayes, 236 F.3d at 895. Barlow contended that the DEA agents had enforced the law selectively by choosing to approach, interview, and search African Americans but not Caucasians, i.e., by engaging in racial profiling. To obtain discovery on this claim, Barlow was required to present evidence that DEA agents chose not to approach whites to whom he was similarly situated. Armstrong, 517 U.S. at 468-69; Chavez, 251 F.3d at 638; Hayes, 236 F.3d at 895. A finding that DEA agents did not approach whites who rode the Southwest Chief as frequently as African American travelers would not automatically establish that the agents’ investigatory tactics were discriminatory; Barlow needed to show also that at least some of these whites not approached were similarly situated to him. Armstrong, 517 U.S. at 468-69; Chavez, 251 F.3d at 638; Hayes, 236 F.3d at 895. Barlow introduced Dr. Lamberth’s statistical analysis in an attempt to demonstrate that the DEA agents had a practice of approaching African American travelers but not similarly situated white travelers. Statistical data has proven a useful tool in some high-profile state racial profiling cases. See, e.g., State v. Soto, 734 A.2d 350 (N.J. 1996) (statistical evidence that blacks were 4.85 times more likely than whites to be stopped for traffic violations established prima facie case of discriminatory effect). And although statistics alone rarely establish an equal protection violation, they may be sufficient to establish the No. 01-1273 7 discriminatory effect prong of the Armstrong test. Chavez, 251 F.3d at 640. But such statistics must be relevant and reliable, id., and the ones Barlow provided were neither. Dr. Lamberth’s statistical conclusions rely heavily upon the fact that, in the ten days his investigators observed the Southwest Chief waiting area, law enforcement officials intercepted only two individuals—an African American couple. But the African American couple was approached by a uniformed Amtrak police officer whereas Barlow was approached by two plain-clothes DEA Transportation Task Force agents. Barlow leveled his allegations against the DEA, not Amtrak; observations of Amtrak’s law enforcement activities are irrelevant to a claim that the DEA engaged in racial profiling. Moreover, Dr. Lamberth’s investigators could provide no information as to why the Amtrak officer approached the African American couple; Barlow has not even established that the officer did so for a law enforcement purpose. Even more problematic is Dr. Lamberth’s flawed statistical methodology: Dr. Lamberth’s investigators counted 726 travelers between February 28 and March 10, 2000, of whom 119, or 16.4%, were African American. Only two of the 726 travelers were approached by law enforcement agents, and both were African American. But Dr. Lamberth did not simply calculate the statistical significance of the fact that two out of two travelers approached were African American. He added Barlow and Guidry to the subset of travelers who had been approached by law enforcement and calculated that the probability that all four individuals approached would be African American to be less than 8 times in 10,000, which he considered a “highly statistically significant” result. But the incident involving Barlow and Guidry occurred on October 29, 1999, 8 No. 01-1273 months before Dr. Lamberth’s investigators began their surveillance in Union Station. Presumably, travelers other than Barlow and Guidry entered the Southwest Chief departure gate on October 29th. We do not know, however, whether law enforcement officials approached additional travelers that day, or, if they did, the race of these travelers. For all we or Dr. Lamberth know, several white individuals could have been approached that day in addition to Barlow and Guidry; if other individuals of any race were approached that day, their addition to the data pool could drastically alter Dr. Lamberth’s statistical results. Barlow argues that Dr. Lamberth’s conclusions were sound, pointing out that Dr. Lamberth was an expert witness in Soto, and that the New Jersey court in Soto accepted his noncontemporaneous statistical analysis as evidence of racial profiling. But Dr. Lamberth did not use the same methodology here as he did in Soto. 734 A.2d at 352-53. Soto involved claims that the New Jersey State Police engaged in selective enforcement in traffic stops between April 1988 and May 1991. Id. at 352. Dr. Lamberth conducted his research two years after the time period relevant to the selective enforcement claims had ended: In June 1993 he recorded the number of drivers stopped by police on the New Jersey Turnpike and the subset of those drivers who were African American. His statistical analysis of these numbers suggested that the state police used racial profiling when enforcing traffic laws. Id. at 35253. Given that there was no evidence that traffic patterns had changed between 1991 and 1993, the court accepted Dr. Lamberth’s 1993 statistics as evidence that the stops between 1988 and 1991 resulted from selective enforcement. Id. at 352, 360-61. Significantly, Dr. Lamberth did not add the allegedly discriminatory stops from 1988 to 1991 to the pool for his June 1993 traffic survey, id. at 352; No. 01-1273 9 instead he relied on the 1993 data only as a baseline by which to evaluate the period relevant to the defendants’ claims. Id. at 352-53. In Barlow’s case, on the other hand, Dr. Lamberth did not merely use the ten-day observation period to evaluate the possibility that the DEA agents engaged in racial profiling when they approached Barlow and Guidry; instead he added Barlow and Guidry to the pool of travelers observed during the ten-day period, thereby altering the significance of his data. Even if we accept Dr. Lamberth’s conclusions as statistically valid, however, Barlow has still presented no evidence that he received less favorable treatment than similarly situated white travelers. To meet his burden under Armstrong, Barlow needed to present evidence that the DEA agents observed whites engaging in the same behavior as Barlow—i.e., looking nervously over their shoulders—but chose not to approach them. 517 U.S. at 465. But Dr. Lamberth’s data tells us nothing about the behavior of the white travelers in Union Station; we therefore have no basis for concluding that any of these white travelers were similarly situated to Barlow. Moreover, Barlow has not demonstrated that the DEA agents acted with discriminatory purpose when they approached him. Chavez, 251 F.3d at 645. The agents made no racial comments during their encounter with Barlow, and there is no evidence of a DEA Transportation Task Force policy, either actual or de facto, encouraging racial profiling. Without evidence of both discriminatory effect and discriminatory intent on the agents’ part, Barlow could not make the threshold showing required in Armstrong; the district court therefore did not abuse its discretion in denying Barlow’s motion for discovery. 10 No. 01-1273

Selective Enforcement Claim

44 The district court denied Saturn's request for prejudgment interest observing that prejudgment interest under 35 U.S.C. § 284 (1976) was to be awarded in the discretion of the court and that the general rule was that interest should be awarded from the date damages are determined. We need not determine whether the district court's conclusion at the time this case was tried was based on valid reasons. The Supreme Court in General Motors Corp. v. Devex Corp., --- U.S. ----, 103 S.Ct. 2058, 76 L.Ed.2d 211 (1983), held that prejudgment interest ordinarily should be awarded under 35 U.S.C. § 284 absent some justification for withholding such an award. The Court reasoned that prejudgment interest is necessary to ensure that the patent owner is placed in as good a position as he would have been in had the infringer entered into a reasonable royalty agreement. An award of interest from the time that the royalty payments would have been received merely serves to make the patent owner whole .... Id. at ----, 103 S.Ct. at 2062-63 (footnote omitted). It is evident that the district court did not approach the question of prejudgment interest under the principles laid down in the later Devex case, and we feel it appropriate to remand this issue to the district court for further consideration under the standards announced in Devex. 9 45 The district court also denied Saturn's requests to increase the damages awarded by the jury and to award attorney fees. The court recognized that 35 U.S.C. § 284 (1976) authorized it to increase the damages up to three times the amount found and that 35 U.S.C. § 285 (1976) authorized it to award attorney fees in exceptional cases. The court concluded: Defendants' conduct, in the opinion of the Court, was neither egregious nor taken in bad faith. Plaintiff's proposed judgment for treble damages and attorney's fees, therefore, will not be entered. In so concluding, as it did with respect to prejudgment interest, the district court apparently considered exceptional circumstances to be required to justify an award of increased damages. Here the jury found willful or wanton infringement of the Saturn patent, and this ordinarily is sufficient to support an award of increased damages. See Milgo Electronic Corp. v. United Business Communications, Inc., 623 F.2d 645, 666 (10th Cir.) (per curiam), cert. denied, 449 U.S. 1066, 101 S.Ct. 794, 66 L.Ed.2d 611 (1980); General Electric Co. v. Sciaky Bros., 415 F.2d 1068, 1071-74 (6th Cir.1969). It appears that the district court imposed a higher standard, the exceptional circumstances standard, in denying increased damages. Although an award of increased damages is discretionary under the statute and the decided cases, nonetheless in view of the analysis in Devex that section 284 does not incorporate the exceptional circumstances standard of section 285, see --- U.S. at ----, 103 S.Ct. at 2061, we feel it appropriate to remand this issue to the district court for further consideration in light of Devex. 46 The findings of the district court fully support its conclusion that this is not such an exceptional case as to justify an award of attorney fees.

Saturn's Appeal

Moore claims he was discharged in violation of Title VII because Vital was motivated by racial and sexual discrimination in discharging him. The district court correctly held that Moore could not bring these claims because he had not included them in his EEOC charge. Generally, a plaintiff may not bring claims under Title VII that were not originally included in the charges made to the EEOC. Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 726 (7th Cir.2003). But if certain claims are not included in an EEOC charge, a plaintiff can still bring them if they are like or reasonably related to the allegations of the [EEOC] charge and growing out of such allegations. Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir.1976) ( en banc ). To be like or reasonably related, the relevant claim and the EEOC charge must, at minimum, describe the same conduct and implicate the same individuals. Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 501 (7th Cir.1994) (emphasis removed). Whether Moore's discharge claims are within the scope of his EEOC charge is a question of law. Conner v. Ill. Dep't of Natural Res., 413 F.3d 675, 680 (7th Cir.2005). Moore's discriminatory discharge claims were not like or reasonably related to the allegations in his EEOC charge. To be sure, Moore's EEOC charge shows (by checked boxes) that he was alleging sex discrimination, race discrimination, and retaliation claims. But merely checking the Race and Sex discrimination boxes in the EEOC charge is not enough to make the EEOC charge like or reasonably related to Moore's discriminatory discharge claims. See Cheek, 31 F.3d at 500-01 (refusing to consider sex discrimination claim when plaintiff had not described conduct giving rise to the claim in an EEOC charge, even though plaintiff had checked the sex discrimination box). In discussing the particulars of his allegations, Moore focused almost entirely on evidence of a sexually and racially hostile work environment. He mentioned inappropriate racial and sexual language, racial and sexual insults, and inappropriate sexual behavior. He contended that management ignored his complaints of sexual and racial harassment and that Matta and Cocking thwarted his attempts to file a grievance. The EEOC charge does include two complaints unrelated to the alleged hostile work environment: that Vital retaliated against me by overloading my workload and by giving me assignments in unfamiliar and challenging neighborhoods. Notably, Moore did not assert in this narrative that he was discharged because of racial or sexual discrimination. Rather, Moore explained that he was currently on medical leave. At best, the EEOC charge can be read to allege a hostile work environment and retaliation (though not retaliatory discharge). These harassment and retaliation allegations are not like or reasonably related to Moore's discriminatory discharge claims because they are not based on the same conduct. See id. at 500-02 ([A] claim of sex discrimination in an EEOC charge and a claim of sex discrimination in a complaint are not alike or reasonably related just because they both assert forms of sex discrimination.); Conner, 413 F.3d at 678, 680 (EEOC allegation of racial discrimination based on 2001 non-promotion not like or reasonably related to claim based on 2002 non-promotion); Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir.1992) (An aggrieved employee may not complain to the EEOC of only certain instances of discrimination, and then seek judicial relief for different instances of discrimination.). Moore does not seriously argue that his discriminatory discharge claims are like or related to the allegations in his EEOC charge. Rather, he complains that he could not have included discharge allegations because he did not know he had been discharged. Moore points to no case suggesting an exception from the EEOC charge requirement when the plaintiff is confused about the underlying facts, and we decline to create one. Such an exception would run counter to a primary purpose of the requirement, which is to give the EEOC an opportunity to investigate the complaints and help the parties settle the dispute without litigation. Cheek, 31 F.3d at 500; Conner, 413 F.3d at 680 (finding EEOC charge prerequisite unmet because the conduct underlying plaintiff's complaint had not occurred when she filed her EEOC charge, and, as a result, [t]here was no way for the EEOC to undertake preliminary investigation as contemplated by Title VII's statutory design). In short, the district court correctly held that Moore cannot complain of discriminatory discharge because he has not alleged such conduct in an EEOC charge. Summary judgment was proper for these claims.

Title VII Discriminatory Discharge Claims

Although the district court acknowledged that the record does not reflect the underlying facts and circumstances on which the DSS's determination was based, it found that this deficiency in the record was largely due to Nyari's failure to appear at the DSS hearing in 1989. The court construed Nyari's failure to pursue his appeal to be the equivalent of a `no contest.' But a nolo contendere plea is a `plea by which a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty.' Rawls v. Mabry, 630 F.2d 654, 659-60 (8th Cir.1980) (quoting North Carolina v. Alford, 400 U.S. 25, 35, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)). Because all of the DSS proceedings were of a civil nature, the court's no contest analogy is inapposite. [3]

Nyari's Failure To Appear at the Social Services Hearing

The district court excluded all of Mr. Arms’s testimony on the ground that his ignition theory did not satisfy the minimum indicia of reliability required by Daubert. We agree with the district court’s holding with regards to Mr. Arms’s testimony about the ignition sequence that started the fire. However, our inquiry 6 Case: 11-15011 Date Filed: 01/17/2013 Page: 7 of 12 into the reliability of Mr. Arms’ testimony does not end with a discussion of his ignition theory. Despite only discussing Mr. Arms’ testimony with regards to the specific ignition sequence, the district court excluded all of Mr. Arms potential testimony, including his testimony relating to the location of the fire’s origin. This sweeping exclusion constituted an abuse of discretion. Mr. Arms’s testimony that the fire originated from the dryer was rooted in his investigation of the scene of the fire and an examination of the dryer in accordance with the principles of the “NFPA 921” guide for fire and explosion investigations, a peer reviewed fire investigation guide that is the industry standard for fire investigation. Travelers Prop. & Cas. Corp. v. Gen. Elec. Co., 150 F. Supp. 2d 360, 366 (D. Conn. 2001) (NFPA 921 is “a peer reviewed and generally accepted standard in the fire investigation community”). By applying these principles to the distinctive burn patterns and other physical evidence he examined first-hand at the scene of the fire, Mr. Arms concluded that the fire began in the dryer area. Mr. Arms pointed to several specific pieces of evidence that supported his conclusion that the dryer was the origin of the fire to the exclusion of other possible sources of the fire in the laundry room. First, he noted that the burn patterns in the room in which the dryer was located indicated that the dryer was the center of the fire. Specifically, he observed that the wall directly behind the dryer was totally consumed and the wires in that wall had melted, suggesting that the fire 7 Case: 11-15011 Date Filed: 01/17/2013 Page: 8 of 12 was centered in the dryer area. Second, he noted there was a lack of arcing, which suggested that an electrical fault was not the cause of the fire. Third, and perhaps most persuasively, he observed that the linoleum floor directly beneath the dryer had had burned and stuck to the bottom of the dryer. This evidence suggested that the fire was located in the bottom part of the dryer. That the linoleum stuck to the bottom of the dryer ruled out the possibility that the fire started adjacent to the dryer or in the washing machine, as no other part of the floor, including the area directly under the washer, showed burns of remotely similar levels of severity as the floor under the dryer. As there was no other potential source of heat that could have damaged the linoleum under the dryer besides a fire in the dryer and no other part of the floor suffered similar levels of damage, Mr. Arms concluded that the origin of the fire came from inside the bottom part of the dryer. But the district court’s order did not address any of Mr. Arms’ testimony as it related to where the fire started. Contrary to what the district court held, Mr. Arms’ testimony regarding the physical origin of the fire was based on a widely accepted methodology and grounded in the available physical evidence. For these reasons, we hold that excluding that part of Mr. Arms’ testimony on Daubert grounds was an abuse of discretion. See City of Tuscaloosa v. Harcros Chem, Inc., 158 F.3d 548, 564 (11th Cir. 1999) (holding that “the district court abused its discretion in excluding admissible portions of [the expert’s] testimony by ruling 8 Case: 11-15011 Date Filed: 01/17/2013 Page: 9 of 12 that [the expert’s] testimony in its entirety was inadmissible”); see also Weisgram v. Marley Co., 169 F.3d 514, 518 (8th Cir. 1999) (holding that although fire investigation expert was not qualified to opine on whether heater had malfunctioned, he could testify about the origin of the fire), aff'd on other grounds, 528 U.S. 440 (2000). We reverse as to the exclusion of the part of Mr. Arms’ testimony that related to origin of the fire.

Testimony of Mr. Arms

23 Id. See Folks v. Secretary of Health & Human Servs., 825 F.2d 1259, 1261 (8th Cir.1987). In the present case, the ALJ failed to consider these factors in analyzing appellant's claim. 24 The ALJ suggests that appellant's complaints were disregarded because appellant failed to establish a physical impairment. The ALJ held that [a]lthough claimant has complained of lower back pain and stomach problems, this record fails to demonstrate by objective medical evidence that the claimant suffers from a physical impairment. ALJ Order at 4. However, appellant has established a severe impairment of mental retardation and he has also been diagnosed as mildly depressed. The Social Security Act recognizes that a psychological disorder may cause disabling pain. The ALJ erred in requiring evidence of a physical impairment to verify complaints of pain. See Reinhart, 733 F.2d at 573 (8th Cir.1984); Cook v. Heckler, 739 F.2d 396, 398 (8th Cir.1984). The ALJ made no findings concerning whether the impairments appellant established could reasonably be expected to cause pain. Nor did the ALJ find that appellant's complaints were not credible because of inherent inconsistencies in his testimony or other circumstances. See Reinhart, 733 F.2d at 573; Simonson, 699 F.2d at 428. Rather, the ALJ found that appellant was generally a credible witness. Other than the lack of objective medical evidence proving the existence of disabling pain, the ALJ did not note any inconsistencies in the record undermining appellant's claims of pain. 25 Accordingly, we affirm the district court's affirmance of the Secretary's denial of presumptive disability, but reverse and remand with directions to the district court to remand this case to the Secretary to reassess appellant's allegations of subjective pain, by evaluating all of the evidence pursuant to the five factors set forth in Polaski.

functional restrictions.

17 Despite the fact that [t]he Feres doctrine cannot be reduced to a few bright-line rules and that each case must be examined in light of the [Federal Tort Claims Act] as it has been construed, Shearer, 105 S.Ct. at 3043, this circuit has adopted a three-part test for determining whether the activity of a serviceman is incident to service. Parker, 611 F.2d at 1013-15. See Flowers v. United States, 764 F.2d 759, 760-61 (11th Cir.1985); Johnson, 749 F.2d at 1537. 4 The factors to be considered include (1) the duty status of the service member, (2) the place where the injury occurred, and (3) the activity the serviceman was engaged in at the time of the injury. Parker, 611 F.2d at 1013. After evaluating the relative weight of these factors, a court should determine whether an activity is incident to service based on the totality of the circumstances. Parker, 611 F.2d at 1013. 18 The United States stresses the fact that Pierce was a member of the armed forces assigned to active duty the day of the accident and therefore, subject to recall. Reviewing courts, however, have refused to treat that fact as dispositive of the duty status issue. See Parker, 611 F.2d at 1014 n. 10. A serviceman on furlough may bring an action under the Federal Tort Claims Act. See Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949). Nevertheless, a serviceman on furlough is also subject to recall. Parker, 611 F.2d at 1014 n. 10. 19 Here, the salient facts are that Pierce requested and obtained permission from his supervising officer to leave the base during regular duty hours to conduct some personal business. It is conceded that he was technically neither on furlough nor on leave; nevertheless, Pierce received more than a mere release from the day's duties. 5 Parker, 611 F.2d at 1014. When a serviceman requests and receives authorization to leave the base and exercise the right to be absent from regular duty, the serviceman attains a status much akin to being on furlough. Parker, 611 F.2d at 1014. Just as a serviceman on furlough may bring an action under the Federal Tort Claims Act, a soldier exercising his rights under a pass may maintain an action. See Brooks, 337 U.S. at 49, 69 S.Ct. at 918; Parker, 611 F.2d at 1015. Because Pierce received a discretionary time off privilege granted by [his] supervising officer, he arguably left the base on a pass. See Parker, 611 F.2d at 1013 n. 9, 1014. 20 Although subject matter jurisdiction of actions under the Federal Tort Claims Act has never turned on whether the alleged harm occurred on or off the military reservation, the situs of the injury is an important factor in determining whether the activity is incident to service. Parker, 611 F.2d at 1014. As stated by the court in Parker, [i]f the injury occurs on the base, it is more likely that the injured service member was engaged in activity incident to service. Parker, 611 F.2d at 1014. In this case, the motor vehicle collision occurred on a public highway within the city limits of Hinesville. 6 As the court in Parker observed, [w]hen soldiers are returning to the base, but have not yet reached the premises line when the collision occurs, [Federal Tort Claims Act] actions are permitted. Parker, 611 F.2d at 1014 (citations omitted). 21 In this case, Pierce was driving a civilian vehicle off the base in a highly congested area. He had eaten lunch at a fast food restaurant, visited a pawn shop, and was returning to the base to unpack his personal belongings. The government alleges that these activities are proximately related to military duties because they are part of the life of a soldier. We disagree. 22 Pierce, similar to the claimant in Parker, was not directly subject to military control; he was not under the compulsion of military orders; he was not performing any military mission. Parker, 611 F.2d at 1014. We do not view pawning a camera, eating lunch, operating a motor vehicle, or unpacking personal property when relieved of assigned tasks as activity materially related to military service. 23 As the court in Parker acknowledged, [i]n some cosmic sense 'all human events depend upon what has already transpired.' Parker, 611 F.2d at 1011 (quoting Brooks, 337 U.S. at 52, 69 S.Ct. at 920). Servicemen have to live somewhere. The mere fact that he was stationed at Fort Stewart does not mean that everything Pierce did in connection with his personal life can legitimately be considered activity proximately related to military service. To accept the government's contention would be to construe any conceivable personal activity as incident to service because that activity happened to be performed by a member of the armed forces. We refuse to accept such a construction, for to do so would preclude the class of servicemen from bringing an action under the Federal Tort Claims Act merely by virtue of the fact that the claimants are wearing a United States uniform. 24 Based upon the totality of the circumstances, we conclude that the district court erred in ruling that Pierce's injuries were incurred from activities incident to service. Pierce was on pass, the accident occurred off the base, and the activities involved were not proximately related to military service. Thus, the district court erroneously concluded that it was without subject matter jurisdiction to entertain Pierce's claims. 25

Incident to Service

29 Section 406(a) states in relevant part that: 30 [W]here the person named in the copyright notice on copies ... publicly distributed by authority of the copyright owner is not the owner of the copyright, ... any person who innocently begins an undertaking that infringes the copyright has a complete defense to any action for such infringement if such person proves that he or she was misled by the notice and began the undertaking in good faith under a purported transfer or license from the person named therein.... 31 17 U.S.C. § 406(a). Bagdadi contends that the innocent infringer defense would not apply to Nazar because the copy on which Nazar relied, which came from Linguex, was not an authorized copy. Bagdadi reasons that he transferred to Linguex only the right to use the video in its classrooms, not to further sell the video to Nazar. As a result of Nazar's reliance on the erroneous copyright in an un authorized copy of English I, Bagdadi asserts that the § 406(a) defense does not apply. 32 This argument misses the mark. 4 Bagdadi's interpretation would require that in order for the § 406(a) defense to apply, the purported transfer or license from the person named in the copyright (Linguex) to the person claiming innocent infringement (Nazar) would have to be authorized by the true copyright owner (Bagdadi). Such a rule would inappropriately shift the focus of the requirement of owner authorization from the initial public distribution, where it belongs, and render irrelevant the innocence of anyone relying in good faith on a misleading notice. 33 It is Bagdadi's authorization of the initial public distribution to Linguex that is the authorization required to constitute a copy publicly distributed by authority of the copyright owner. A subsequent distribution to another party, such as that found in this case, is precisely the type of situation for which the innocent infringer defense was created. Thus, Bagdadi's reading of section 406(a) fails because it is inconsistent with the statute's plain language and irreconcilable with its manifest purpose. 34

Reliance on an Authorized Copy

23 The crux of Hollister's claim is that the shirt that she wore was defective because it was constructed of a fabric that was too highly flammable to be safe. In other words, Hollister argues that the dangerousness of the shirt is attributable to the intentional design decisions of the manufacturer. See Prentis v. Yale Mfg. Corp., 365 N.W.2d 176, 182 (Mich. 1984)(distinguishing design defects from manufacturing defects). 24 In Owens v. Allis-Chalmers Corp., 326 N.W.2d 372, 378-79 (Mich. 1982), the Michigan Supreme Court held that a plaintiff in a design-defect case must present evidence of the magnitude of risks involved, and the utility and relative safety of proposed alternatives, in order to overcome the defendant's motion for summary judgment. The forklift operator in Owens was killed when the forklift he was driving overturned and pinned him beneath it. His wife argued that the forklift was defective because it lacked seatbelts. In granting a directed verdict for the defendant, the court stated that the plaintiff could not prevail because she had not shown that the presence of a seatbelt would have rendered the forklift safer. See id. 25 In Prentis, the Michigan Supreme Court built upon Owens and explicitly adopted a so-called risk-utility test for determining a manufacturer's liability. See Prentis, 365 N.W.2d at 186 (Thus we adopt, forthrightly, a pure negligence, risk-utility test in products liability actions . . . where liability is predicated upon defective design.). The risk-utility analysis focuses upon whether a manufacturer would be judged negligent if it had known of the product's dangerous design at the time it was marketed. Id. at 183. 26 In Reeves v. Cincinnati, Inc., 439 N.W.2d 326 (Mich. App. 1989), a worker whose hand was crushed in a power press that unexpectedly cycled sued the press's manufacturer on a design-defect theory. Reeves demonstrated that sudden cycling of power presses was common and that injury resulting from such cycling could occur. He further presented evidence that a guard installed in front of the press would prevent injuries such as the one he had incurred, and that such guards only cost about $1 each. On the other hand, he did not provide evidence as to any costs that might be associated with redesigning the presses to accommodate the guards, or the exact statistical likelihood of injury. See id. at 329-30. 27 In reversing a directed verdict for the manufacturer, the Michigan Court of Appeals stated that the plaintiff had presented sufficient evidence to raise a question of fact for the jury as to the reasonableness of the power press's design. See id. at 330. The Reeves court succinctly articulated the following elements of a prima facie design-defect case under Michigan law: 28 [A] prima facie case of a design defect premised upon the omission of a safety device requires first a showing of the magnitude of foreseeable risks, including the likelihood of occurrence of the type of accident precipitating the need for the safety device and the severity of injuries sustainable from such an accident. It secondly requires a showing of alternative safety devices and whether those devices would have been effective as a reasonable means of minimizing the foreseeable risk of danger. This latter showing may entail an evaluation of the alternative design in terms of its additional utility as a safety measure and its trade-offs against the costs and effective use of the product. 29 Id. at 329 (citing Prentis). 30 This court has previously applied the Owens, Prentis, and Reeves analysis in a design defect case under Michigan law. See Zettle v. Handy Mfg. Co., 998 F.2d 358, 360 (6th Cir. 1993) (holding that the plaintiff had failed to present sufficient evidence concerning the effectiveness of a proposed alternative design in a products liability action against the manufacturer of a power washer). 31 In the present case, Hollister has sued the distributor of the shirt, not its manufacturer. The manufacturer of the shirt remains unknown. A distributor's liability is the same as that of the manufacturer in a design-defect case. See Gregory v. Cincinnati, Inc., 538 N.W.2d 325, 339 (Mich. 1995). 32

The elements of a design-defect case under Michigan law

The IRS produced the relevant portions of Agent Sharma’s activity record, a document similar to a time sheet, with a single entry on one page redacted. The IRS explained that the deleted entry reflected that Agent Sharma “communicated with the IRS Office of Chief Counsel with respect to a specific issue in the examination,” adding that “disclosure of [the redacted entry] would reveal an area of the exam for which the revenue agent sought legal advice.” The IRS relied on Exemption 5’s incorporation of the attorney-client privilege to justify this redaction, and the district court agreed with the IRS. Solers contends mainly that the entry should not have been redacted because “the subject matter of an attorney-client communication is not privileged.” While, as Solers contends, “the general purpose of the work performed [by an attorney] [is] usually not protected from disclosure by the attorney-client privilege because such information ordinarily reveals no confidential professional communications between attorney and client,” In re Grand Jury Subpoena, 204 F.3d 516, 520 (4th Cir. 2000) (internal quotation marks and citation omitted), the privilege nonetheless shields from disclosure “the specific nature of the legal advice sought by [the client],” In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003); see also id. (holding that, while the fact that 17 an attorney “provid[ed] advice regarding an immigration matter” would not be privileged, a question “specifically ask[ing] whether [the client] consulted with Counsel about the preparation of [a particular immigration form]” sought information protected by the attorney-client privilege). Accordingly, we conclude that the attorney-client privilege justifies the IRS’ limited redaction of the activity report so as to keep confidential the specific issues on which Revenue Agent Sharma sought legal advice while working on the audit.

The Activity Record

On appeal, Dell argues that the district court erred by failing to “both determine the scope of [his] criminal activity . . . and to specify the amount of crack cocaine attributable to . . . Dell in the entire case.” Dell argues that the evidence indicates that the “scope” of his criminal activity was limited to the drug transactions taking place in February, September, and October 2005, which totaled 46.39 grams of crack cocaine. He stresses that, with respect to other controlled buys, his name was not mentioned, and the confidential sources (“CS”) did not indicate that he was involved. Dell argues that because the parties who testified to his involvement gave inconsistent testimony, no “credible evidence” supports the inference that he was more involved in the conspiracy. 10 We review a district court’s determination of the amount of drugs for which a defendant is held accountable at sentencing for clear error. United States v. Lee, 68 F.3d 1267, 1274 (11th Cir. 1995). “When a defendant objects to a factual finding that is used in calculating his guideline sentence, such as drug amount, the government bears the burden of establishing the disputed fact by a preponderance of the evidence.” United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). “For sentencing purposes a member of a drug conspiracy is liable for his own acts and the acts of others in furtherance of the activity that the defendant agreed to undertake and that are reasonably foreseeable in connection with that activity.” United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993). [T]o determine a defendant’s liability for the acts of others, the district court must first make individualized findings concerning the scope of criminal activity undertaken by a particular defendant. Once the extent of a defendant’s participation in the conspiracy is established, the court can determine the drug quantities reasonably foreseeable in connection with that level of participation. If the court does not make individualized findings, the sentence may nevertheless be upheld if the record supports the amount of drugs attributed to a defendant. Id. (citations omitted). The district court must take into account all “relevant conduct” when determining the quantity of drugs attributable to the defendant, i.e. “all acts and omissions committed, aided, abetted, counseled, commanded, 11 induced, procured, or willfully caused by the defendant[.]” U.S.S.G. § 1B1.3(a)(1)(A). If the case involves drugs, “the defendant is accountable for all quantities of contraband with which he was directly involved and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook.” U.S.S.G. § 1B1.3, comment. (n.2); U.S.S.G. § 1B1.3(a)(1)(B). Because “the [g]uidelines require a district court to attribute to a defendant all drugs foreseeably distributed pursuant to a common scheme or plan of which that defendant’s offense of conviction was a part,” a defendant may be held accountable for drugs that were not related specifically to his counts of conviction and for actions taken by others. States v. Mertilus, 111 F.3d 870, 873 (11th Cir. 1997) (quotations and citation omitted). Because the government presented sufficient evidence to show the quantity of crack cocaine attributed to the conspiracy and that Dell was extensively involved in the conspiracy to distribute the entire quantity of crack cocaine, we hold that the district court did not clearly err holding him accountable for 1.5 kilograms of crack cocaine. Accordingly, we affirm.

Dell

puted Although a court would not necessarily be required to reach the patent law issues that underlie the causes of action alleged by NeuroRepair, at least one patent law issue is actually disputed by the parties. NeuroRepair claims Defendants’ wrongdoing hindered its ability to timely obtain patents of the same scope it would have obtained but for Defendants’ delay and mishandling. Defendants counter that the patent did not issue sooner because the claims as initially presented were not patentable and that Defendants had not narrowed the claims because “NeuroRepair had expressly ordered [Defendants] not to.” Appellees’ Br. 26. Whether the patent could have issued earlier and with broader claims is thus actually disputed by the parties.

At least one patent law issue is actually dis-

13 Thiokol argues that the district court was without authority to determine whether Harper had substantially complied with the collective bargaining agreement since this is a claim to be evaluated by an arbitrator. Thiokol contends, and the district court agreed, that Harper had not made a timely request for an extension of maternity leave in accordance with article 16, section 4 of the agreement (Finding of Fact # 26). However, this finding is irrelevant to plaintiff-appellee's entitlement to relief. 14 Thiokol admits in its brief that the district court properly had jurisdiction under Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), to determine that its refusal to allow Harper to return to work because she had not met its medical requirement of sustaining a normal menstrual cycle was a discriminatory act (appellant's brief at 19). Appellant argues, however, that the district court did not address this issue. This argument is without merit. In its Conclusion of Law # 15 the district court held that (t)he fact that Plaintiff was refused the right to return to work in accordance with her request and in accordance with medical advice prior to the expiration of her maternity leave constituted an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964, as amended. In its Conclusion of Law # 17, the court further held that the (e)mployer's policy of denying female employees on pregnancy leave the right to return to work prior to their having a normal menstrual cycle is a denial of specific employment opportunities and in absence of proof of any business necessity for it, constitutes an unlawful employment practice. The court therefore clearly addressed the issue whether Thiokol's act in refusing reinstatement was discriminatory and concluded that it was. The district court's holding was correct. See Satty, supra.

Substantial Compliance with the Collective Bargaining Agreement

31 I.V. Services argues alternatively that equitable tolling is required because IDM or Reliastar allegedly refused repeated requests to forward a copy of the Plan, thereby concealing its terms. This argument need not detain us long. The magistrate found that what the record shows, however, is that [I.V. Services] made no effort to obtain a copy of the Plan until 1995, well after three years from the initial denial of Daly's claim for benefits. The district court echoed this finding in its order adopting the magistrate's report. 32 I.V. Services contends that this finding is not supported by the record. It points to the testimony of I.V. Services President, Maureen Teachman, who stated that she contacted IDM and Reliastar in an effort to procure a copy of the Plan. In her affidavit, however, Teachman's states that she attempted to obtain a copy of the Plan in 1995. This statement is reiterated in her deposition, where she testified that on August 10, 1995, she sent a letter to IDM via fax requesting a copy of the Plan. I.V. Services contends that, prior to this time, Teachman had spoken with an employee at IDM named Nancy Warino about getting a copy. However, Teachman testified that she had between three and six conversations with Warino, the first of which took place probably some time in the range of [the August 10, 1995] fax, a few months before perhaps. 4 33 In short, the district court was not in error in stating that I.V. Services did not seek to obtain a copy of the Plan until after the applicable limitations period had already run. Acts of alleged concealment by IDM or Reliastar after the statute had run would not warrant equitable tolling. Cf. Bernier v. Upjohn Co., 144 F.3d 178, 180 (1st Cir. 1998) (A party seeking to toll the statute must at the very least show that the information could not have been found by a timely diligent inquiry[.]) (emphasis supplied). 34

Did IDM or Reliastar Conceal the Terms of the Plan?

borrower or any of their employees, while moving property to or from a covered auto. 3. Anyone liable for the conduct of an insured described above is an insured but only to the extent of that liability. However, the owner or anyone else from whom you hire or borrow a covered auto is an insured only if that auto is a trailer connected to a covered auto you own . (J.A. at 47.) The policy defined covered auto for purposes of liability coverage to include automobiles Tidewater Pizza did not own, lease, hire, or borrow but which it used in connection with its business; but for purposes of uninsured motorist coverage, the termcovered auto was defined to include [o]nly those autos you own which, because of the law in the state where they are licensed or principally garaged, are required to have and cannot reject uninsured motorists insurance. 3 (J.A. at 26.) Stone conceded that he was not occupying a motor vehicle owned, leased, hired, or borrowed by Tidewater Pizza.

Anyone other than your employees, a lessee or

20 Village seeks a declaratory judgment stating that HUD acted arbitrarily and capriciously by (1) refusing to consider Village's rent increase request; (2) declaring Village in default and subsequently foreclosing on Mockingbird because Village failed to adequately maintain the property; and (3) refusing to review its rent increase request unless Village escrowed $2 million for repairs on Mockingbird. 21 Village argues that its obligation to maintain the property was dependent upon HUD's providing sufficient rent revenues to pay for maintenance. According to Village, because HUD refused to approve a sufficient rental schedule, HUD acted arbitrarily and capriciously in citing poor maintenance as the reason for declaring Village in default. HUD counters that Village had an absolute duty to maintain the property, regardless of its rental income. This means that if Village's rental income was insufficient to pay all of its operating and maintenance costs, Village and its financial partners must either invest additional equity to make up any deficiencies or risk default and foreclosure. 22 HUD's argument would perhaps be convincing if it had undertaken to review Village's rental increase request and to rule upon it. Both the Regulatory Agreement and HUD's regulations require HUD at least to entertain a rent increase request. 8 See Regulatory Agreement, ¶¶4(g) (stating that HUD will at any time entertain a written request for [a rent] increase); 24 C.F.R. §§ 886.312(b) (stating that once HUD receives a request, it shall approve a rental schedule . . . or shall deny the increase stating the reasons therefor) (emphasis added). HUD violated its contractual and regulatory duty to consider the rent request. This defect renders suspect HUD's other actions, particularly when the full regulatory context is considered. 23 Village certainly had the duty to maintain Mockingbird so as to provide decent, safe and sanitary housing. HAP Contract, §§ 14(a); see also Regulatory Agreement, §§ 7 (Owners shall maintain the mortgaged premises . . . in good repair and condition.). Village's duty, however, was not absolute. Nothing in the National Housing Act, HUD's regulations, the Regulatory Agreement, or the HAP contract requires Village, as a low income property owner, to absorb or subsidize operating and maintenance deficiencies. Instead, the programs are designed to ensure that HUD establishes rental rates so that property owners receive enough revenue to cover all of the property's expenses including maintenance, repairs, debt service, taxes, and a six percent return on investment. See 12 U.S.C.A. §§ 1747c. Thus, the HUD reimbursement scheme resembles cost-plus contracts or public utility regulation, in either of which situations the private party who performs the work is assured of recovering reasonably incurred costs as well as a reasonable return on investments. 24 That the cost of operating and maintaining the property, in addition to the cost of complying with the Regulatory Agreement, 9 must be paid for out of the regulated rental revenues is reinforced in several ways. First, HUD's internal interpretation of its regulations indicates that operating and maintenance costs are to be derived from the rental revenues. Albert Cason, the Director of Multifamily Housing (Houston, Texas Office) and the HUD official who oversaw Mockingbird, testified that [e]verything that comes from the project's operation is paid from the rents, and [w]e've all agreed that the operation and maintenance of the property comes out of the rents. Similarly, HUD's handbook states that [i]n reviewing requests from owners concerning rents and charges, the Field Office should be guided by the fact that these rents and fees should and must provide sufficient and adequate funding to operate the projects. Multifamily Asset Management and Project Servicing, United States Department of Housing and Urban Development, Handbook 4350.01 Rev-1,7-1 (September 1992); see also 42 U.S.C. §§ 1437f(c)(2)(B) (stating that HUD shall adjust the HAP contract to provide for sufficient monthly rents to reflect increases in the actual and necessary expenses of owning and maintaining the units); 12 U.S.C. §§ 1747c.; Beck Park, 695 F.2d at 371 (HUD has the duty to maintain reasonable rents, based on operating costs, and to allow project owners a reasonable return on their investment.). 25 Second, HUD forced Village to be organized as a single asset entity, which can neither own or operate any other property nor conduct any other business besides owning the property. See Regulatory Agreement §§ 6(f) (prohibiting Village from engaging in any other business or activity, including the operation of any other rental project). Because of this requirement, Village had no source of income to maintain the property other than the rental revenues. The only way for it to obtain a sufficient amount of money to pay for the needed repairs was by seeking a rent increase. HUD's refusal to consider a rent increase effectively forced Village either to default or, as HUD well knew, to seek additional equity or debt financing without assurance that these investments would be recouped. 26 Third, Village signed a non-recourse note, guaranteed by HUD. From the inception of HUD's program, therefore, Village was not required to support the property financially after its initial investment. Had Village not obtained a non-recourse loan, then either Village as an entity or perhaps its investors could have been made responsible to the lender (and HUD) for failure to repay or comply with terms of the loan. One HUD official put it this way: [HUD} does not require owners to make outright cash gifts to the projects they own. After final endorsement of a mortgage, there is no requirement of owners to provide additional funds to a project. Letter from Dean K. Reger, Deputy Director of Multifamily Housing Management, to Mr. Streuby L. Drumm, Jr. (October 21, 1994). 27 The interplay among these aspects of the regulatory program makes clear that all of the expenses of operating and maintaining a low income housing project must be paid out of the rental revenues, which in turn are subsidized by HUD. The regulatory scheme does not contemplate that property owners must bear the risk of maintaining properties based on insufficient rental revenues. HUD could understandably refuse to provide financial assistance to an owner that has misappropriated funds, mismanaged the property, taken a profit instead of maintaining the property, or been negligent in its management in some other regard. When those elements are absent, however, thestatutes provide that HUD must ensure that the owner receives rents sufficient to meet at least the operating and maintenance expenses of the property. There is no statutory or regulatory basis for imposing on a conscientious low-income housing operator the risk of uncompensated dilapidation or deterioration; the federal government, not the private contractor, is charged with funding the public program. 28 In the case at hand, it is alleged that rental revenues approved by HUD were consistently insufficient to cover the cost of operating and maintaining the property. 10 Village sought several rental increases over the course of its ownership of Mockingbird, but it never received the full amount requested, nor the amount it thought was necessary to maintain the property. 11 Annual financial audits appear to have routinely showed, moreover, that Village never misappropriated funds or squandered its revenues. Village never received a profit from Mockingbird and appears to have applied all of its revenues to cover costs of operating and maintaining the property. In addition, there was no evidence that the property was mismanaged, 12 nor did HUD ever attempt to remove the management company as it had a right to do. See Regulatory Agreement, 9(a) (Any management contract entered into by Owners . . . involving the project shall contain a provision that it shall be subject to termination, without penalty, and with or without cause, upon written request by the Commissioner addressed to the Owners.). 29 These facts reinforce Village's contention that HUD's $2 million demand was arbitrary and capricious. As noted supra, instead of considering Village's rent request, HUD determined that no action would be taken unless Village first escrowed $2 million. HUD cannot point to any statute, regulation, or agreement with Village giving it the discretion to table Village's rent increase request and use it as leverage to demand $2 million new equity for repairs. 13 30 Because HUD acted without statutory or regulatory authority, the agency arbitrarily and capriciously demanded Village to escrow $2 million before it would consider the rent request. 31 HUD argues that a holding in Village's favor would mean that HUD has the duty to pay for all of a property's maintenance expenses, thus giving owners the incentive to neglect the maintenance needs of their property. We disagree. This decision has no bearing on those cases where a property owner has negligently permitted the property to deteriorate or has misused its rental income in a way that has caused the maintenance problem. As noted supra, rental increase decisions are discretionary and are generally unreviewable by the courts. In this case, however, HUD acted arbitrarily and capriciously when it refused to abide by its legal obligation to consider a rental increase request from a non-negligent owner and instead demanded a $2 million cash infusion and then declared the property in default for those very reasons.

Village's Request for a Declaratory Judgment

16 The district court admitted Smith's armed robbery conviction because, as for Lipscomb's conviction, the desperate person who would commit an armed robbery would also lie under oath. 16 The court did not expressly explain why Little's robbery conviction or Green's accessory after the fact to manslaughter conviction were probative of credibility. The court did, however, state its opinion as to both Little and Green that the probative value of the convictions outweighs the prejudice to the Defendant. 17

Smith, Green, and Little

Montgomery’s complete argument concerning probable cause for the search warrant issued for 1117 Plum Run Road is contained in one short paragraph of his appellate brief: . . . concerning the 1117 Plum Run Road address, the warrant itself provided for the search of 1197 Plum Run Road. Three of the first four houses on Plum Run Road actually fit the description provided. The warrant was not sufficient as it failed to describe the location with sufficient particularity. Brief of Defendant-Appellant, 49. The government concedes, as it must, that the address listed in the search warrant as the address to be searched was off by one digit in that it stated the address as 1197 Plum Run Road instead of 1117 Plum Run Road. 17 No. 08-5898 United States v. Montgomery The particularity requirement for a search warrant is met “if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.” Steele v. United States, 267 U.S. 498, 503 (1925). In determining whether the description of the place to be searched is sufficient, the inquiry is whether the place to be searched is described with sufficient particularity “‘to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.’” United States v. Durk, 149 F.3d 464, 465 (6th Cir. 1998) (quoting United States v. Gahagan, 865 F.2d 1490, 1496 (6th Cir.1989)). Thus, an incorrect description of the premises does not automatically invalidate the warrant. We find the particularity requirement of the Fourth Amendment to have been met here. Although the premises are referred to in the search warrant as 1197 Plum Run Road, the warrant contains a detailed description of the premises as a “single story brown brick residence with black shutters and white trim.” The residence has a “shingle style roof and a concrete driveway.” The search warrant also had precise directions to the residence and had detailed descriptions of automobiles located on the premises. Attached to the warrant was a photograph of the residence to be searched. Under these circumstances, there was no reasonable probability that the executing officer might mistakenly search one of the other three houses on the street that fit the description of the premises to be searched. 18 No. 08-5898 United States v. Montgomery

1117 Plum Run Road

Amzak also appeals the district court’s grant of summary judgment in favor of Appellees on its negligence claim. Under Louisiana law, to succeed on a negligence claim, a plaintiff must prove: (1) the had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (breach of duty element); (3) the defendant’s sub-standard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was the legal cause of the plaintiff’s injuries (the scope of protection element); and (5) actual damages (the damages element). La. Civil Code art. 2315. The cause-in-fact element is dispositive here. When there are multiple causes of loss, the proper inquiry is whether the complained-of conduct was a substantial factor in bringing about the loss. Perkins v. Entergy Corp., 782 So. 2d 606, 611 (La. 2001); see also Westchester Fire Ins. Co. v. HaspelKansas Inv. P’ship, 342 F.3d 416, 420 (5th Cir. 2003). In determining whether an event was a “substantial factor,” the questions are “whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm” and whether each of the multiple causes “played so important a part in producing the result that responsibility should be imposed upon” each item of conduct. LeJeune v. Allstate Ins. Co., 365 So. 2d 471, 477 (La. 1978). 6 6 Amzak points to First Nat’l Bank of Louisville v. Lustig, 961 F.2d 1162 (5th Cir. 1992) to support a wider reading of “by reason of.” Lustig interpreted coverage issues arising from a banker’s blanket bond. In that case, the lender would not have made the loans “in the absence of the [employee’s] fraud.” Likewise, Amzak argues, it would not have made its loan “in the absence of a valid mortgage.” Hence, under a lender’s title policy, as in Lustig, “[t]here will always be” other causes “for the failure of [the loan] to be repaid,” because “otherwise the 12 Case: 13-30675 Document: 00512546787 Page: 13 Date Filed: 02/27/2014 No. 13-30675 In order to prove that the title defect was a substantial factor in bringing about Amzak’s purported loss, Amzak had to create a genuine issue of material fact as to the following chain of events: (1) Amzak and WFA had agreed on the terms of a forbearance agreement, which included an additional capital infusion by WFA; (2) the investors would have made a $7-8 million infusion investment despite the existence of the Fluor and subcontractors liens, which they believed to be a threat; (3) with that infusion, WFA would not have filed bankruptcy; (4) that infusion would have been enough to turn around the mill financially; and (5) the mill would have become profitable, allowing WFA to repay its creditors, including Amzak, in full. As the district court aptly noted, Amzak has not done this. Tembec Indus., Inc. v. Amzak Capital Mgmt., LLC, No. 11-622-JJB (M.D. La. May 1, 2013). Amzak’s expert, Professor Glynn Lunney, Jr., did not project what WFA might do with a capital infusion, could not testify to what creditors would have been paid with such an infusion or what portion would remain for Amzak, and stated “[i]t would be foolish . . . to make a post hoc prediction of what would have actually happened (or not happened) if the Mortgage defect had not existed . . . because there are too many variables that would have changed the result.” Amzak has invested at least $58 million in its subsidiary which now runs the mill, and the mill continues to lose money. Finally, the defect was effectively waived by the parties in bankruptcy, as Amzak was permitted to bid its debt to obtain the property as if there had been no title defect. We agree with the district court that Amzak did not create a genuine issue of material fact as to these essential steps of causation. [lender] would suffer no loss.” Id. at 1167. All this may be true, but as discussed above, Amzak has not proven that its loss resulted from a defect in the mortgage. 13 Case: 13-30675 Document: 00512546787 Page: 14 Date Filed: 02/27/2014 No. 13-30675 We briefly mention legal causation, although the lack of cause-in-fact is enough to dispose of Amzak’s negligence claim. Under Louisiana law, legal causation is “ultimately a question of policy as to whether a particular risk falls within the scope of the duty.” Roberts v. Benoit, 605 So. 2d 1032, 1044 (La. 1991). STL’s duty to Amzak is defined by the title policy. As we have stated, the policy provides indemnity for actual loss “by reason of” title defect; it does not guarantee the effectiveness of Amzak’s mortgage or the property’s fair market value. Accordingly, under the undisputed facts developed here, STL’s delay in making a complete filing of Amzak’s mortgage was not a legal cause of Amzak’s loss.

Amzak’s Negligence Claim

15 motion to sever. 16 Defendants-appellants (collectively Mason County) argue that the district court erred in denying their motion to sever. This argument is based on two theories. First, they contend that the requirements for permissive joinder were not met. Second, they maintain that even if the requirements for permissive joinder were met, the motion to sever the plaintiffs' claims should have been granted because not doing so resulted in prejudice to the individual defendants. 17 Federal Rule of Civil Procedure 42(b) gives a district court broad discretion to order separate trials. A district court's decision regarding severance may be set aside only for abuse of discretion. United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir.1989). Under the abuse of discretion standard, a reviewing court cannot reverse unless it has a definite and firm conviction that the district court made a clear error of judgment in its conclusion. Abatti v. Commissioner, 859 F.2d 115, 117 (9th Cir.1988). 18 Mason County did not raise the issue of whether the requirements for permissive joinder were met below. They are thus precluded from raising it now. This court will not review an issue not raised below unless necessary to prevent manifest injustice. International Union of Bricklayers and Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.1985). This court will address the issue only if the proponent can point to exceptional circumstances why the issue was not raised below. Id. (quoting Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 655-56 (9th Cir.1984) (per curiam)). Because Mason County does not show any reasons why they failed to raise the issue below, this court will not consider the issue. 19 Mason County moved before trial to sever the claims of the plaintiffs because, they argued, joinder would result in prejudice to the individual defendants. It is true that by trying the claims against the individual defendants with the claims against Mason County and the Sheriff's Department, evidence of the series of incidents of excessive force involving different police officers which would have been inadmissible against individual defendants not involved in the particular episode, were admissible against the County and the Sheriff's Department in order to show a pattern of misconduct. 20 Yet, while severing the defendants would have surely eliminated this prejudice, severing the plaintiffs would not have solved the problem. Even if each plaintiff had a separate trial, evidence of a pattern of misconduct would still have been admitted because each plaintiff (except Taylor who did not sue Mason County) presented a claim against at least one defendant and against the County. Since defendants requested severance of the plaintiffs' claims, the court below did not abuse its discretion in rejecting the motion. 21

Whether the district court erred in denying defendants'

89 The district court sentenced Sehorn to a 20-year mandatory sentence on Count Two, which charged aiding and abetting a firearms crime under 18 U.S.C. § 924(c). This statute provides that [i]n the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years ... Because Sehorn was previously convicted under this statute for a Los Angeles robbery, the district court sentenced Sehorn to the mandatory twenty-year sentence. 90 Sehorn argues that the mandatory twenty-year sentence was not warranted because the Los Angeles robbery occurred after the July 1992 robbery for which appellant was convicted in this case. However, the language of § 924(c) plainly refers to a subsequent conviction, not a subsequent crime. As this court has pointed out: There is nothing in the simple wording of this statute that requires that an offense underlying a second conviction occur after the conviction for the first offense. The only requirement is that a conviction be second or subsequent, not that any offense underlying that conviction follow a first conviction. United States v. Neal, 976 F.2d 601, 602 (9th Cir.1992). See also Deal v. United States, 508 U.S. 129, 134, 113 S.Ct. 1993, 1997-98, 124 L.Ed.2d 44 (1993) (noting that the term second or subsequent conviction means that a defendant convicted of a crime committed in 1992, who has previously been convicted of a crime committed in 1993, would receive the enhanced sentence). Thus, the twenty-year mandatory sentence was proper. 12 91

Was Sehorn properly sentenced?

Plaintiffs allege that the Program has resulted in “a series of reports documenting in detail the information obtained from [the NYPD’s] surveillance of New Jersey Muslim communities.” Id. ¶ 5. These “includ[e] a report focusing on the Muslim community in Newark” (the “Newark report”), id.; “more than twenty precinct-level maps of the City of Newark, noting the location of mosques and Muslim businesses and the ethnic composition of the Muslim community,” id. ¶ 3; “analytical report[s] on every mosque within 100 miles” of New York City, id. ¶ 47; and a weekly “MSA Report on schools, including reports on Rutgers New Brunswick and Rutgers Newark,” id. ¶ 51. The information and records collected and compiled are extensive and varied. Among these are “pictures, . . . video, . . . and license plate numbers of [mosque] congregants,” id. ¶ 46; intelligence about “where religious schools are located,” id. ¶ 47; indications of religious affiliation and Muslim patronage of shops, restaurants, and grocery stores, id.; lists of “businesses owned or frequented by Muslims,” id.; and “names of professors, scholars, and students” affiliated with MSAs, id. ¶ 51. The City also allegedly “compiles databases of new Muslim converts who take Arabic names, as well as Muslims who 13 take names that are perceived to be ‘Western.’” Id. ¶ 55. Besides names and other identifying information of individuals, businesses, and organizations, the NYPD reports include seemingly mundane and innocuous details about Muslim community life in New Jersey, such as: (1) “flyers are posted in shops advertising for Quran tutoring;” (2) “a picture of a mosque hangs in a grocery store;” (3) “a restaurant serves ‘religious Muslims;’” (4) “customers visit a Dunkin’ Donuts after Friday prayer;” (5) “a restaurant is located near a particular mosque;” (6) “employees or customers of establishments are observed wearing ‘traditional clothing;’” (7) “Muslim prayer mats are hanging on the wall at an Indian restaurant;” and (8) “a store posts a sign that it will be closed on Friday in observance of Friday prayer.” Id. ¶ 47. Finally, NYPD officers have compiled “the subject[s and details] of conversations overheard at mosques.” Id. In one 2006 report, for instance, they “document[ed] twentythree conversations at twenty mosques,” though “[n]one of the information collected showed any indication of criminal activity.” Id.

Reports and Informational Databases

At a status conference, Veterans sought to compel discovery of suicide incident briefs — reports prepared by the VA following the suicide or attempted suicide of a veteran under VA care. The VA represented that there are 15,000 suicide incident briefs that would be subject to extensive redaction and argued that the redacted suicide incident briefs would be of little probative value. The district court asked Veterans what they would do with that information. Veterans responded: “I think it would potentially subject to analysis . . . to try to amalgamate the data across the system to show in practice how the procedures and policies that are in place with respect to mental health care, in fact, the small—.” The district court interjected “I don’t think I have any authority to talk about their policies,” and thereafter denied Veterans’s motion to compel production. Veterans claim that full discovery of all suicide incident briefs would have allowed them to establish links between the VA’s failure to comply with its policies and procedures and veterans’ suicides. Veterans, however, do not argue how they were prejudiced by the discovery ruling in the context of their specific APA and due process claims. There is no contention that the suicide incident briefs would have allowed Veterans to fulfill the APA’s statutory requirements for judicial review set forth at 5 U.S.C. § 706(1) and delineated in Norton. It is possible that access to the suicide incident briefs might have provided Veterans with additional useful material in support of their due process claim concerning veterans’ inability to appeal administrative scheduling decisions that delay necessary mental health care. However, such material is not necessary for Veterans to make out a valid claim — indeed, as we hold above, their eligibility for relief under Mathews has already been established by the district court’s factual findings. In light of our holding reversing and remanding this case to the district court for the entry of an appropriate order remedying the due process violation that Veterans have suffered VETERANS FOR COMMON SENSE v. SHINSEKI 6371 because of the VHA’s delay in the provision of mental health care, we conclude that it is unnecessary to address this discovery issue. B. Average Time for Processing PTSD Claims at the RO Level Veterans also sought to compel a response to their interrogatory requesting the average amount of time it takes to process PTSD compensation claims at the Regional Office level. During the trial, Veterans raised the issue with the district court. The VA represented that Michael Walcoff, then Deputy Under Secretary for Benefits in the Department of Veterans Affairs,40 would testify as to what data the VA has and why the VA cannot produce the data sought by Veterans. After Walcoff testified, Veterans filed a motion to compel by letter contending that “Walcoff’s testimony, although consistent with the explanation provided by counsel for Defendants, does not support the ‘not available’ interrogatory answer provided by Defendants.” The following day, April 29, 2008, the court denied Veterans’s motion to compel. Veterans contend that the district court abused its discretion in refusing to compel an answer to that interrogatory. We fail to see how this specific information would bolster Veterans’s APA or due process claims. Veterans’s statutory claims are foreclosed for the reasons we discuss above. Veterans’s due process arguments concerning delays in claims adjudication focus on the time it takes to appeal benefits determinations. At the RO level, Veterans claim only that the failure to provide more formal procedures for adjudicating benefits claims and the VA’s use of a procedure to reduce benefits awards system violates due process. Veterans make no argument as to how further information on delays in processing PTSD claims at the RO level would support their due process claims 40 Walcoff was appointed Acting Under Secretary for Benefits in the Department of Veterans Affairs on Jan. 4, 2010. 6372 VETERANS FOR COMMON SENSE v. SHINSEKI regarding RO-level procedures. In the absence of any showing of how this additional information would have strengthened Veterans claims, we affirm the district court’s ruling on this issue.

Suicide Incident Briefs

Defendants first argue that guaranty section 5(b)(i), supra, which states that a guarantor’s obligations are not affected in the event of a bankruptcy, is ambiguous or conflicts with other provisions. Defendants say that the section is ambiguous because it could be interpreted to mean that defendants, as guarantors, have no additional obligations in the event of a bankruptcy. Defendants’ -6- 111 Debt Acquisitions Holdings, LLC v. Six Ventures Ltd., et al. No. 09-4436 argument is without merit. The clear meaning of the provision is that a guarantor’s obligations under the terms of the loan documents do not change in the event of a bankruptcy, not that guarantors are released from the liability provided therein. To read the provision as defendants suggest is counterintuitive. Instead, the loan agreement and guaranty clearly provide that a bankruptcy filing is a SRE and that a SRE renders the defendants, as guarantors, personally liable for the full debt. In the same argument, defendants assert that the guaranty’s section 10 heading, “Unconditional Character of Obligations of Guarantor,” supra, should not have impacted the district court’s finding related to this issue, and that the district court erred by not giving more weight to Kahn’s affidavit in which he stated that he never intended to be liable for the entire amount of the debt. Defendants’ assertions are without merit as they do not change the clear meaning of the guaranty provision that defendants contest as ambiguous. A guarantor’s obligations under section 5(b)(i) are not ambiguous. Thus, the district court did not err in finding the same. Defendants also argue that the guaranty’s definition of “Guaranteed Obligations,” section 1(b), supra, is ambiguous. Particularly, defendants say that because modifiers are not used in the clause – “and” or “or” – the clause should be read as one sentence and to mean that it is ambiguous whether defendants are liable for the full amount of the debt. Defendants’ claim is without merit. Whether the definition is read as one sentence or as two independent sentences, it is clear that defendants are liable for the full debt in the case of a SRE, which defendants concede converts their debt obligations from non-recourse to recourse. See Appellants’ Brief, at p. 5. Thus, the district court did not err in finding a lack of ambiguity related to the definition of the guaranty’s “Guaranteed Obligations” term. -7- 111 Debt Acquisitions Holdings, LLC v. Six Ventures Ltd., et al. No. 09-4436

Guaranty Ambiguity

54 We have no authority to grant habeas corpus relief simply because we conclude, in our independent judgment, that a state supreme court's application of [federal law] is erroneous or incorrect. Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir.2005) (quoting Neal v. Puckett, 286 F.3d 230, 236 (5th Cir.2002) (en banc)). Because Kittelson filed his federal habeas petition on September 11, 2003, the petition is subject to review under the standards established in the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (AEDPA). Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Section 2254(d)(1) of that law establishes the narrow conditions under which a federal court may grant a petition for a writ of habeas corpus: 55 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim 56 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 57 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 58 Section 2254(d)(1) addresses pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.2001). Under the first (contrary to) clause, a federal court may grant habeas relief if the state court decided a case differently from how the United States Supreme Court decided a case on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the second (unreasonable application) clause, a court may grant habeas relief if the state court correctly divined a legal principle from the Supreme Court's jurisprudence but misapplied that principle to the facts. Section 2254(d)(2) addresses pure questions of fact. Moore v. Johnson, 225 F.3d 495, 501, 504 (5th Cir.2000). We review the federal district court's determinations of law under AEDPA de novo. Mann v. Scott, 41 F.3d 968, 973 (5th Cir.1994).

The AEDPA Standard of Review

67 Did Hall and the Board fall into that narrow band of fragile relationships requiring for job security loyalty at the expense of unfettered speech? Gonzalez I, 712 F.2d at 150. The district court rightly concluded that they did, and therefore that the government's interest in the effective functioning of its enterprise outweighed Hall's interest in speaking on a matter of public concern. 68 Hall's position related to a policy area, and his duties were such as to identify him as a prominent policy level official. The University therefore had a significant interest in ensuring that Hall was, and was perceived to be, compatible with the President and the Board. Hall's speech directly interfered with this interest, as he engaged in a pattern of opposition to the policies of his superiors. 69 First, the Athletic Directorship clearly is a position that relates to policy concerns. There is substantial room for principled disagreement on the formulation and implementation of goals for the Athletic Department. Two directors may disagree about which sports to emphasize, whether to focus on league or intramural activities, or whether to insist on compliance with NCAA and University rules even at the expense of negative publicity and competitive setbacks. As the Athletic Director's job performance cannot be measured solely on the basis of neutral, technical criteria of professional competence, his position relates to a policy area. See Shondel, 775 F.2d at 864; cf. Roman Melendez v. Inclan, 826 F.2d 130, 133-34 (1st Cir.1987) (as physical condition of schools is matter of vital public concern, and there was room for disagreement as to priorities for investigating and remedying deficient conditions, position of director of program whose primary responsibility was to repair, maintain, and improve public schools clearly related to institutional policy); Tomczak v. City of Chicago, 765 F.2d 633, 641 (7th Cir.) (deputy water commissioner's duties related to unprotected area because there was room for principled disagreement on how best to accomplish goal of providing public services), cert. denied, 474 U.S. 946, 106 S.Ct. 313, 88 L.Ed.2d 289 (1985). 70 Second, Hall's duties as Athletic Director were sufficiently extensive to qualify him as a policy level employee. The Athletic Director is in the excepted service, which is defined by statute as an individual whose primary duties are of a policy determining, confidential, or policy advocacy character and who reports directly to the head of an agency. D.C.Code Ann. Sec. 1-610.2 (1981). Although the statute is not conclusive, it is entitled to some deference. Jimenez Fuentes, 807 F.2d at 246. The statutory classification is confirmed by the complaint's description of the Athletic Directorship. Hall alleged that the President and the Board placed the position of Athletic Director in the University's 'Excepted Service' so that the President could select the Athletic Director at his sole discretion. Complaint at p 30, App. at 8. Hall was the President's key subordinate, chosen for the express purpose of implementing policy. The President rel[ied] upon [appellant] to bring the UDC Athletic Department into full compliance with NCAA and UDC rules and guidelines. Complaint at p 10, App. at 3. In other words, he was charged with formulat[ing] plans for the implementation of [the University's] broad goals. Elrod, 427 U.S. at 368, 96 S.Ct. at 2687 (plurality opinion). 71 These duties were obviously not well defined [and] of broad scope. Id. Hall was the immediate subordinate of the President and the Board. He reported directly to them, and they were his only superiors. He had the power and primary responsibility to control all employees within his department. At the same time, he was a highly visible spokesman for the University's athletic program, likely to be thought of by the public as responsible for running the department. 72 Finally, the government's interest in having its Athletic Department efficiently operated in accordance with policies established by the President and Board was directly undermined by Hall's contrary views as to how these policies should have been formulated and implemented. He engaged in a pattern of speech concerning the proper response to rule violations within the department. Complaint at p 13, App. at 4. His statements were opposed with increasing frequency by the UDC administration and various members of the Board. Complaint at p 14, App. at 5. Hall's views as to how the department should have been run were obviously at odds with those of the Board. 73 We conclude that Hall could be dismissed for expressing views on matters within the core of his responsibilities that reflected a policy disagreement with his superiors such that they could not expect him to carry out their policy choices vigorously.

Application to Present Case

Meyers contends that the district court erred in failing to balance his interests in his religion with governmental interests as required by the First Amendment and the RFRA; in refusing to recognize his interpretation of his own religion; and in refusing to give his beliefs the status of religion. Meyers asserts that as the Reverend of the Church of Marijuana it is his sincere belief that his religion commands him to use, possess, and distribute marijuana for the benefit of mankind and the planet earth and that 21 U.S.C. §§ 841 and 846 and 18 U.S.C. § 2, which prohibit this religiously motivated conduct, unduly burden his constitutional right to free exercise of religion. Meyers maintains that in order to substantially burden religiously motivated conduct, the government must demonstrate a compelling state interest and use means narrowly tailored to achieve that - 5 - interest. The Free Exercise Clause of the First Amendment guarantees that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ..” U.S. Const. amend. I. In Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940), the Court recognized that there are two aspects of the free exercise of religion: freedom to believe and freedom to act. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,-- freedom to believe and freedom to act. Id. at 303. While the freedom to believe and profess whatever religious doctrines one desires is absolute, the freedom to act cannot be. Id. at 303-04. “Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection.” Id. at 304. In Employment Div., Dep’t of Human Resources of Or., v. Smith, 494 U.S. 872 (1990), the Court held that the right to free exercise of religion does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes), nor does a generally - 6 - applicable criminal prohibition on a particular form of conduct that substantially burdens a religious practice have to be justified by a “compelling governmental interest.” (citing United States v. Lee, 455 U.S. 252, 263 n.3 (1982)). In Smith, respondents argued that “their religious motivation for using peyote place[d] them beyond the reach of a criminal law that [was] not specifically directed at their religious practice and that [was] concededly constitutional as applied to those who use the drug for other reasons.” 494 U.S. at 878. The respondents further argued “that even though exemption from generally applicable criminal laws need not automatically be extended to religiously motivated actors, at least the claim for a religious exemption must be evaluated under the balancing test set forth in Sherbert v. Verner, 374 U.S. 398 (1963),” where governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest. Smith, 494 U.S. at 882-83. In reaching its decision, the Court stated that “[w]e have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Id. at 878-79. The Court pointed out that “[t]he only decisions in which [it has] held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with - 7 - other constitutional protections.” Id. at 881 (citations omitted). In addition, the Court specifically rejected the respondents contention that a neutral law of general applicability that burdens a religious practice must be justified by a compelling governmental interest. The Court held that: The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, “cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.” Lyng [v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 451 (1988)]. To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling--permitting him, by virtue of his beliefs, “to become a law unto himself,” Reynolds v. United States, 98 U.S. [145], 167 [1878]-- contradicts both constitutional traditions and common sense. Id. at 885 (footnote omitted). In our case, Meyers’ challenge to his convictions under the Free Exercise Clause must fail. First, as in Smith, Meyers challenges the application of valid and neutral laws of general applicability on the grounds that they prohibit conduct that is required by his religion. Therefore, we hold that Meyers’ challenge fails for the same reasons as the respondents challenge in Smith failed, i.e., the right to free exercise of religion under the Free Exercise Clause of the First Amendment does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law incidentally affects religious practice. Second, we hold that when, as here, - 8 - the challenge is to a valid neutral law of general applicability, the law need not be justified by a compelling governmental interest. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 521 (1993). Meyers argues that the district court erred in refusing to recognize his interpretation of his own religion and in refusing to give his beliefs the status of religion under the RFRA. In response to the Court’s rejection of the compelling governmental interest test in Smith, Congress passed the RFRA reestablishing the compelling interest test of Sherbert, 374 U.S. 398, and Wisconsin v. Yoder, 406 U.S. 205 (1972), as the analytical framework governing all cases where free exercise of religion is substantially burdened. 42 U.S.C. § 2000bb(b)(1). The RFRA provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.” § 2000bb-1(a). Subsection (b) provides that: Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person-- (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000bb-1(b). - 9 - Under the RFRA, a plaintiff must establish, by a preponderance of the evidence, three threshold requirements to state a prima facie free exercise claim. Thiry v. Carlson, 78 F.3d 1491, 1494 (10th Cir. 1996). The governmental action must (1) substantially burden, (2) a religious belief rather than a philosophy or way of life, (3) which belief is sincerely held by the plaintiff. Id. The government need only accommodate the exercise of actual religious convictions. Werner v. McCotter, 49 F.3d 1476, 1479 n.1 (10th Cir.) (citing Yoder, 406 U.S. at 215-19; Thomas v. Review Bd., 450 U.S. 707, 713-18 (1981)), cert. denied, ___ U.S. ___, 115 s. Ct. 2625 (1995). Once the plaintiff has established the threshold requirements by a preponderance of the evidence, the burden shifts to the government to demonstrate that the challenged regulation furthers a compelling state interest in the least restrictive manner. Werner, 49 F.3d at 1480 n.2 (citing 42 U.S.C. § 2000bb-1(b)). Our review of the requirements, although largely factual in nature, presents mixed questions of fact and law. Thiry, 78 F.3d at 1495. We review the meaning of the RFRA de novo, including the definitions as to what constitutes substantial burden and what constitutes religious belief, and the ultimate determination as to whether the RFRA has been violated. Id. Sincerity is a factual matter and, as with historical and other underlying factual determinations, we defer to the district court’s findings, - 10 - reversing only if those findings are clearly erroneous. Id. There is no dispute that Meyers’ beliefs are sincerely held and that they are substantially burdened by 21 U.S.C. §§ 841 and 846 and 18 U.S.C. § 2. The issue is whether his sincerely held beliefs are “religious beliefs,” rather than a philosophy or way of life. In analyzing this issue, the district court examined the cases that have delved into the question of “what is religion” and catalogued the many factors used to determine whether a set of beliefs is religious in nature.2 Meyers, 906 F. Supp. at 1501. The court then used its list of factors to examine Meyers’ beliefs to determine if his beliefs fit the factors sufficiently to be included in the realm of “religious beliefs.” Keeping in mind that the threshold for establishing the 2 The district court “gleaned” many of these factors from the following cases: Africa v. Commonwealth of Pa., 662 F.2d 1025 (3rd Cir. 1981), cert. denied, 456 U.S. 908 (1982); Malnak v. Yogi, 592 F.2d 197 (3rd Cir. 1979); United States v. Sun Myung Moon, 718 F.2d 1210 (2nd Cir. 1983), cert. denied, 466 U.S. 971 (1984); Founding Church of Scientology of Washington, D.C. v. United States, 409 F.2d 1146 (D. C. Cir.), cert. denied, 396 U.S. 963 (1969); Washington Ethical Soc’y v. District of Columbia, 249 F.2d 127 (D.C. Cir. 1957); United States v. Kauten, 133 F.2d 703 (2nd Cir. 1943); Sherr v. Northport-East Northport Union Free Sch. Dist., 672 F. Supp. 81 (E.D.N.Y. 1987); Jacques v. Hilton, 569 F. Supp. 730 (D.N.J. 1983), aff’d, 738 F.2d 422 (3rd Cir. 1984); Church of the Chosen People v. United States, 548 F. Supp. 1247 (D. Minn. 1982); Womens Services, P.C. v. Thone, 483 F. Supp. 1022 (D. Neb. 1979), aff’d, 636 F.2d 206 (8th Cir. 1980), vacated, 452 U.S. 911 (1981); Stevens v. Berger, 428 F. Supp. 896 (E.D.N.Y. 1977); Remmers v. Brewer, 361 F. Supp. 537 (S.D. Iowa 1973), aff’d, 494 F.2d 1277, cert. denied, 419 U.S. 1012 (1974); United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968); Fellowship of Humanity v. Alameda County, 315 P.2d 394 (Cal. Ct. App. 1957). - 11 - religious nature of his beliefs is low, the court considered the following factors: 1. Ultimate Ideas: Religious beliefs often address fundamental questions about life, purpose, and death. As one court has put it, “a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters.” Africa, 662 F.2d at 1032. These matters may include existential matters, such as man’s sense of being; teleological matters, such as man’s purpose in life; and cosmological matters, such as man’s place in the universe. 2. Metaphysical Beliefs: Religious beliefs often are “metaphysical,” that is, they address a reality which transcends the physical and immediately apparent world. Adherents to many religions believe that there is another dimension, place, mode, or temporality, and they often believe that these places are inhabited by spirits, souls, forces, deities, and other sorts of inchoate or intangible entities. 3. Moral or Ethical System: Religious beliefs often prescribe a particular manner of acting, or way of life, that is “moral” or “ethical.” In other words, these beliefs often describe certain acts in normative terms, such as “right and wrong,” “good and evil,” or “just and unjust.” The beliefs then proscribe those acts that are “wrong,” “evil,” or “unjust.” A moral or ethical belief structure also may create duties -- duties often imposed by some higher power, force, or spirit -- that require the believer to abnegate elemental self-interest. 4. Comprehensiveness of Beliefs: Another hallmark of “religious” ideas is that they are comprehensive. More often than not, such beliefs provide a telos, an overreaching array of beliefs that coalesce to provide the believer with answers to many, if not most, of the problems and concerns that confront humans. In other words, religious beliefs generally are not confined to one question or a single teaching. Africa, 662 F.2d at 1035. 5. Accoutrements of Religion: By analogy to many of the established or recognized religions, the presence of the following external signs may indicate that a particular set of beliefs is “religious”: - 12 - have been wholly founded or significantly influenced by a deity, teacher, seer, or prophet who is considered to be divine, enlightened, gifted, or blessed. seminal, elemental, fundamental, or sacred writings. These writing often include creeds, tenets, precepts, parables, commandments, prayers, scriptures, catechisms, chants, rites, or mantras. particular structures or places as sacred, holy, or significant. These sites often serve as gathering places for believers. They include physical structures, such as churches, mosques, temples, pyramids, synagogues, or shrines; and natural places, such as springs, rivers, forests, plains, or mountains. clergy, ministers, priests, reverends, monks, shamans, teachers, or sages. By virtue of their enlightenment, experience, education, or training, these people are keepers and purveyors of religious knowledge. e. Ceremonies and Rituals: Most religions include some form of ceremony, ritual, liturgy, sacrament, or protocol. These acts, statements, and movements are prescribed by the religion and are imbued with transcendent significance. f. Structure or Organization: Many religions have a congregation or group of believers who are led, supervised, or counseled by a hierarchy of teachers, clergy, sages, priests, etc. g. Holidays: As is etymologically evident, many religions celebrate, observe, or mark “holy,” sacred, or important days, weeks, or months. h. Diet or Fasting: Religions often prescribe or prohibit the eating of certain foods and the drinking of certain liquids on particular days or during particular times.

Religious Freedom Defense

12 Trompeter was a nationally-recognized collector of rare coins. Trompeter also had other valuable collections including art, artifacts, firearms, gems, jewelry, and music recordings. There is considerable dispute, and much ambiguity in the record, about the exact nature and valuation of those holdings, but the Estate concedes that it failed to report approximately $1 million in assets. Among other things, the Estate did not report the gun collection (valued at $10,000), the music collection (valued at $10,000) and some of the gems (valued at $500,000). 13 The IRS determined that the Estate failed to report $14 million in assets, principally art, artifacts, diamonds, jewelry, and the like. This figure was based on the estimate made by the son of one of Trompeter's acquaintances, Joe Pasko, who filed a claim against the Estate for a $1.4 million commission, alleging that Trompeter had retained him to sell assets worth at least $14 million. 14 Although it rejected the Estate's argument that Trompeter had gifted some of the omitted assets to the co-executors, the Tax Court did not accept the Commissioner's determination, because, among other things, the record did not disclose all of the unreported assets, nor was Pasko conversant with the full extent of Trompeter's holdings. The court did, however, conclude that there were unreported assets: 15 Following our detailed review of the record, we find that the estate failed to report $4.5 million of assets (inclusive of the approximately $1 million amount conceded by the estate). 16 Trompeter, 75 T.C.M. at 1665 (emphasis added). 17 The difficulty with this finding is that it is so conclusory as to make it unreviewable. The Tax Court did not specify which portions of the trial record it referenced, detail the methodology it used to arrive at its conclusion, list the omitted assets, or even offer a description of the items. 18 We can understand and review the basis for rejecting the $14 million figure. Unfortunately, it is the alternative finding that leaves us hanging. The convenient shorthand reference to a detailed review of the record only tells us, based on the length of the record, that the court spent considerable time scrutinizing it. We do not doubt the court's sincerity or diligent review. Rather, we simply do not have any factual findings that can be adequately reviewed for clear error. How did the Tax Court arrive at the $3.5 million figure? What items comprise the $3.5 million in omitted assets? 19 In declining to detail the assets with some reasonable specificity, the Tax Court places us in the untenable position of either abdicating our reviewing role or sifting through a voluminous record to construct a plausible account of the missing assets. Although the latter exercise may be theoretically possible, it is not an exercise to be performed by the court of appeals. See, e.g., Estate of Mitchell, 250 F.3d at 704 ([T]he Commissioner offers us a multitude of avenues through which one might arrive at a 35 percent combined discount. This strained effort, in and of itself, is the most telling evidence of the inadequacy of the Tax Court's explanation.); see also Akers v. Comm'r, 798 F.2d 894, 897 (6th Cir.1986) (Unlike the original judgment of Solomon, the true rationale of which has been readily apparent to generations of disinterested observers — if not, at first blush, to both of the maternal litigants — the judgment appealed from here has no discernible logic. We are not prepared to permit the Tax Court, whenever it disagrees with the valuations offered by both sides, simply to shut its eyes and pick at random any number that happens to lie somewhere between the Commissioner's valuation and the taxpayer's.). 20 It is, therefore, not sufficient to say that the value of various unspecified collections of art, artifacts, gems, etc., is $3.5 million. Consequently, consistent with our holding in Leonard Pipeline, we instruct the Tax Court on remand to provide sufficiently detailed findings regarding the assets (including their valuation) that were omitted from the Estate's federal estate tax return.

Omitted Assets

Parks also says that she complained about a teleconference presentation by Dr. Kaplan to Coventry Health Care in February of 2006. Part of the presentation was meant to promote Kadian as being less prone to diversion (i.e., less prone to be diverted to the black market) than other opioid drugs. J.A. 262. Notably, Parks “arranged for Dr. Kaplan to 9 speak,” and she also provided certain slides for that presentation. Id. at 1884. Nevertheless, Parks claims that because Kadian had not been proven to be less subject to diversion, she felt that marketing it that way would be considered off-label promotion. When Parks discovered that the presentation would involve a discussion of diversion, she wrote an email to Hill to express these concerns. The email stated, Between us, I am not at all comfortable with this approach. If it were me[,] I would not do this. The success with Medicaid in [Maryland] was due to a strong clinical support from my [doctors] and a great detail from Dr. Royal . . . . Nonetheless, I am doing all that I can to help [Matt Anderson, Alpharma’s Managed Care Representative, who was responsible for the presentation].” J.A. 262. Hill responded, “I would agree, I think we need to take a more clinical approach than abuse and diversion.” Id. at 1884. 3 3 Because Dr. Kaplan was not on Alpharma’s list of approved speakers, he could not be paid his $500 honorarium for the Coventry presentation through normal channels. Parks says that her supervisors encouraged her to buy Dr. Kaplan a gift certificate with her company American Express card, but she refused to do so. Eventually, Dr. Kaplan was paid by a check issued by Alpharma. See J.A. 446-58. It is not clear whether Parks desires to use this fact as evidence of an FCA protected activity or retaliatory behavior on the part of Alpharma. Regardless, we do not find it persuasive or relevant to our analysis. 10

coventry presentation

The plaintiffs further contend that since they have sought class certification, see supra note 1, they should be treated as a class pending the court's determination on that issue. Some courts have uncritically treated a group as a collective when a would-be class has petitioned for certification. See, e.g., Hinckley v. Kelsey-Hayes Co., 866 F.Supp. 1034 (E.D. Mich. 1994). In Hinckley, the court found irreparable harm to the 500 plaintiffs when only one of the two named plaintiffs in the proposed class presented evidence of threatened harm, and none demonstrated that money would not be an effective compensation. See id. at 1044-45. The court based its order, in part, on the fact that it was dealing with a potential class. [T]he court will take into consideration the irreparable harm faced by putative class members before class certification because of the nature of injunctive relief at this stage of the litigation. Id. Likewise, in Lapeer Cty. Medical Care Facility v. Michigan, 765 F.Supp. 1291, 1301 (W.D. Mich. 1991), the court treated a group of noncertified plaintiffs as a class. The court analogized the preliminary injunction order to dismissal orders and compromise negotiations, in which a court can treat a non-certified potential class as a unit. Cf. Musto v. American General Corp., 615 F.Supp. 1483, 150405 (M.D. Tenn. 1985), rev'd on other grounds, 861 F.2d 897 (6th Cir. 1988) (treating certified class collectively for irreparable harm determination). We disagree. We see no reason why the pendency of a class action certification petition should alter our analysis. We have no basis on which to judge the viability of the class certification request, which we understand to be 23 contested. Merely petitioning for class certification cannot provide plaintiffs the right to be treated collectively. Furthermore, a class action determination focuses on similarities between the legal claims of the parties, see Fed. R. Civ. P. 23(a), while a preliminary injunction determination, by requiring a showing of irreparable harm, depends in many cases (including this one) on circumstances entirely independent of legal rights: the particular resources available to each member of the class to weather hardships pending a trial.

Class Certification Issues

We begin by detailing the history of the statute and regulations at issue in this case. The McCarran-Walter Act of 1952 established the structure of current immigration laws, Pub.L. No. 82-414, 66 Stat. 163 (March 27, 1952) (codified at 8 U.S.C. §§ 1101-1537 (1952)). As part of an amendment of the immigration laws in 1961, Congress provided that federal courts could not exercise jurisdiction over deportation and exclusion orders where the alien had departed the United States following issuance of the order. Thus, 8 U.S.C. § 1105a(c)(1962) provided: An order of deportation or of exclusion shall not be reviewed by any court if the alien . . . has departed from the United States after issuance of the order. Three months after the enactment of the 1962 laws, the Attorney General issued implementing regulations, including 8 C.F.R. § 3.2, titled Reopening or reconsideration before the [BIA]. That regulation paralleled § 1105a(c), and provided: [A] motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of deportation proceedings subsequent to his departure from the United States. Any departure from the United States of a person who is the subject of deportation proceedings occurring after the making of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion. 8 C.F.R. § 3.2 (1962) (currently 8 C.F.R. 1003.2(d)). 8 C.F.R. § 1003.23(b)(1) contains identical language governing motions to reopen or reconsider filed before an IJ. From the early 1960s until 1996, 8 U.S.C. § 1105a(c) remained unchanged from that 1961 version, as did the language of the regulations regarding motions to reopen or reconsider before an IJ and the BIA. All barred post-departure motions to reopen or reconsider. In April 1996, the Attorney General amended 8 C.F.R. § 3.2 and added numerical and time limits for motions to reopen and to reconsider, as well as prescribed contents for such a motion. The post-departure bar remained. In September 1996, Congress made major reforms to immigration law through its enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009. Among other things, the IIRIRA repealed the statutory bar to judicial review of deportation orders when the alien had departed the country and codified and enacted procedures governing the filing of motions to reopen. See William v. Gonzales, 499 F.3d 329, 330 (4th Cir.2007). Thus, the current statute governing motions to reopen and reconsider provides that [t]he alien may file one motion to reconsider a decision that the alien is removable from the United States, 8 U.S.C. § 1229a(c)(6)(A), and that such a motion must be filed within 30 days of the date of entry of a final administrative order of removal. 8 U.S.C. § 1229a(c)(6)(B). Furthermore, [a]n alien may file one motion to reopen proceedings under this section, 8 U.S.C. § 1229a(c)(7)(A), which motion must, in general, be filed within 90 days of the date of entry of a final administrative order of removal. 8 U.S.C. § 1229a(c)(7)(C)(I). The statute also details the required content of motions to reopen or reconsider, as well as exceptions from both the numerical limit of one motion to reopen and the time period for filing such a motion. See 8 U.S.C. § 1229a(c)(7)(A)-(C). The statute does not, however, contain any explicit post-departure bar to review, which, as indicated above, had previously existed in former 8 U.S.C. § 1105a(c). On March 6, 1997, the Attorney General promulgated regulations implementing the IIRIRA. The regulations retained the post-departure bar for motions to reopen before an IJ and the BIA: A motion to reopen or . . . reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings, subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen . . . or reconsider, shall constitute a withdrawal of such motion. (currently 8 C.F.R. § 1003.2(d)). Virtually identical language bars post-departure review before the IJ. See 8 C.F.R. § 1003.23(b)(1). Thus, the regulations continue to contain a post-departure bar to motions to reopen or reconsider before both the IJ and the BIA. Indeed, the Attorney General specifically discussed the continuing validity of the post-departure bar in the notice and comment process for the regulations implementing the IIRIRA: No provision of the new section 242 of the [INA] supports reversing the long established rule that a motion to reopen or reconsider cannot be made in immigration proceedings by or on behalf of a person after that person's departure from the United States. . . . The Department [of Justice] believes that the burdens associated with the adjudication of motions to reopen and reconsider on behalf of deported or departed aliens would greatly outweigh any advantages this system might render. Inspection and Expedited Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed.Reg. 10,312, 10,321 (March 6, 1997).

Background of Immigration Laws

The doctrine of dual or double criminality is distinct from the doctrine of specialty.24 While specialty focuses on the conduct prosecuted, [d]ouble criminality refers to the characterization of the relator's criminal conduct insofar as it constitutes an offense under the law of the respective states .... no state shall use its processes to surrender a person for conduct which it does not characterize as criminal.25 Dual criminality mandates that a prisoner be extradited only for conduct that constitutes a serious offense in both the requesting and surrendering country. Although this presents a slightly closer question, we conclude that Newball, 554 F.2d 665, 685 (5th Cir.1977)). 21 In United States v. Abello-Silva, 948 F.2d 1168 (10th Cir.1991), the court dealt with a defendant's specialty rule challenge to his extradition from Colombia. The court found no right to object at trial to the introduction of evidence that was not part of the request for extradition, so long as the evidence is directed to the charge contained in the request for extradition.' Id. at 1174 (citing RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 477 cmt. c (1987)). The court also stated that United States precedent controlled the application of the specialty doctrine and rejected the defendant's assertion that any dispute over emphasis on 'facts' or 'offenses' in applying the specialty doctrine is resolved by the laws of the asylum country: Colombia. Id. at 1173. 22 813 F.2d 146 (8th Cir.1987). 23 Gallo-Chamorro, 48 F.3d at 506 (citing Thirion, 813 F.2d at 152-53). 24 Id. at 507. 25 Herbage, 850 F.2d at 1465 (quoting 1 M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 324-25 (2d ed.1987)). Gallo's dual criminality arguments ultimately are unpersuasive.

Dual or Double Criminality

37 The IBEW's final argument is that on remand it proffered a sufficient showing of harm to defeat plaintiff's motion for summary judgment. We disagree. The District Court was correct in concluding that the IBEW failed to raise a genuine issue of material fact because the harm asserted by the IBEW in its submissions was not one which would outweigh the union member's interest in disclosure. J.A. at 15. Therefore, summary judgment against the defendants was proper. See Fed.R.Civ.P. 56(c). 38 In Mallick I, we held that the strong [congressional] policy favoring access to [records] for union members who have otherwise satisfied the statutory requirements for examination requires that the harm from disclosure be genuine and significant. 749 F.2d at 785. As examples of cases in which the union would meet this burden we observed that the information requested should not be revealed if doing so would lead to the public dissemination of a union's organizing strategy or negotiating plan. We also stated that the harm to a union's financial interests, which allegedly would result from disclosure of the requested information, would have to be comparable to the harm to a corporation caused by disclosure of its trade secrets or confidential earnings protections. In remanding the case to the District Court, we instructed that the specific harm alleged by the union must outweigh the specific interest asserted by the union member. 39 In this case, the union members' interest in disclosure is basic to the entire purpose of the LMRDA. Members of the IBEW have observed a precipitous drop in the union's legal defense account, as listed in its LM-2 report, and seek to examine relevant union records in order to substantiate or refute their belief that this drop reflects their union's policy of defending LMRDA lawsuits without regard to cost or the interests of the membership. See Mallick I, 749 F.2d at 774, 776. The Boswell case, we recall, involved a union member's claim under the free speech provision of the LMRDA. See 29 U.S.C. Sec. 411(a)(2). If the IBEW spent substantial--even excessive--sums of money to litigate the Boswell case, this information may reflect costly intransigence on the part of the union leadership simply to discourage members from bringing such [LMRDA] lawsuits. 749 F.2d at 774. How the union leadership responds to LMRDA claims is obviously a valid concern to the union's rank-and-file members. Since the LMRDA specifically grants union members union democracy rights like the free speech right at issue in the Boswell case, the policy of the Act obviously favors disclosure of information to verify an indication in an LM-2 report that the union is hostile to, or at least unsolicitous of, these LMRDA rights. 40 Once again we refer to passages from the House Report, which we quoted extensively in Mallick I, 749 F.2d at 780: 41 The members of a labor organization are the real owners of the money and property. Because such union funds belong to members they should be expended only in the common interest.... 42

The IBEW's Assertion of Harm

New York, NY, and Washington, DC. For Appellants Morgan Stanley Capital Group, Inc. and Shell Oil Company: Anthony M. Mansfield and Joshua L. Shapiro, Cadwalader, Wickersham & Taft LLP, New York, NY, and Washington, DC. For Plaintiff-Appellee U.S. Commodity Futures Trading Commission: MELISSA CHIANG (Jonathan L. Marcus, General Counsel, and Robert A. Schwartz, Deputy General Counsel, on the brief), Commodity Futures Trading Commission, Washington, DC. For Plaintiffs-Appellees Stephen E. Ardizzone et al.: WARREN T. BURNS, Susman Godfrey LLP, Dallas, TX (Christopher Lovell, Lovell Stewart Halebian Jacobson LLP, New York, NY, on the brief). For Defendants-Appellees: ELIZABETH M. BRADSHAW (Timothy J. Carey, on the brief), Winston & Strawn LLP, Chicago, IL. Appeals from the United States District Court for the Southern District of New York (Pauley, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the orders of the district court are AFFIRMED. Appellants Castleton Commodities International LLC, Vitol, Inc., Vitol Capital 3 Management Ltd., Plains All American Pipeline, LP, Morgan Stanley Capital Group, Inc., and Shell Oil Company appeal from two orders entered on October 25, 2013 by the U.S. District Court for the Southern District of New York (Pauley, J.). The orders were entered in two parallel suits against Defendants-Appellees Parnon Energy Inc., Arcadia Petroleum Ltd., Arcadia Energy (Suisse) SA, Nicholas J. Wildgoose, and James T. Dyer, one an enforcement action filed by Plaintiff-Appellee the U.S. Commodity Futures Trading Commission (the “CFTC”), and the other a class action filed by Plaintiff-Appellee Stephen E. Ardizzone and others (the “Class Plaintiffs”). Both suits allege that the Defendants engaged in an unlawful scheme to manipulate the price of light sweet crude oil futures in late 2007 and early 2008. In the orders under review, the district court allowed the Defendants to produce to the Class Plaintiffs large numbers of confidential business documents that the Appellants had previously produced to the CFTC as part of a nationwide investigation into possible manipulation of crude oil prices, and that the CFTC in turn had produced to the Defendants in the enforcement action. The court conditioned its discovery orders on the parties’ entry of modified protective orders making more stringent the safeguards governing the parties’ review of the documents. The Appellants challenge these discovery orders on grounds of relevance and confidentiality. We assume the parties’ familiarity with the underlying facts, procedural history, and issues presented for review. Before turning to the merits, we must first address our jurisdiction to review these pretrial discovery orders, which were not final when the notices of appeal were filed. See 28 U.S.C. § 1291; Fed. R. Civ. P. 54(b). Generally, “[a] party that seeks to present an objection to a discovery order immediately to a court of appeals must refuse compliance, be held in contempt, and then appeal the contempt order.” Church of Scientology of California v. United States, 506 4 U.S. 9, 18 n.11 (1992). “[U]nder the so-called Perlman doctrine,” however, “a discovery order directed at a disinterested third party is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance.” Id. (citing Perlman v. United States, 247 U.S. 7 (1918)). Here, the district court’s orders are directed not to the Appellants but to the Defendants, who, although parties to the litigation, have no interest in risking contempt on the Appellants’ behalf and in fact have already turned over the documents in question to the Class Plaintiffs. The district court’s orders are therefore final and appealable under the Perlman doctrine. With regard to the appeal from the order in the CFTC action, we note that we also have appellate jurisdiction under ordinary finality principles. On August 4, 2014, the district court entered a final consent order in the CFTC action, and although the clerk has not entered final judgment, the order leaves no doubt that all claims and defenses have been fully and finally resolved and that all prior decisions in the case are now final. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 387 (1978) (per curiam). In addition, while the notices of appeal were filed before the discovery order was rendered final, “‘[i]n the absence of prejudice to the nonappealing party, this Court . . . has declined to dismiss premature notices of appeal where subsequent actions of the district court have imbued the order appealed from with finality.’” Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 172 (2d Cir. 2002) (per curiam) (ellipsis in original) (quoting Leonhard v. United States, 633 F.2d 599, 611 (2d Cir. 1980)). We must also address the suggestions by the Class Plaintiffs and the CFTC that these appeals are moot. A dispute is moot when, by virtue of an intervening event, a court of appeals cannot grant any effectual relief whatever in favor of the appellant.” Calderon v. Moore, 518 5 U.S. 149, 150 (1996) (internal quotation marks omitted). Here, the Class Plaintiffs point out that both they and the Defendants already possess the documents in question and have begun reviewing them. But these changed circumstances do not prevent us from ordering meaningful relief. As the Appellants point out, we may order the return of any irrelevant or unreviewed documents, or limit their use in court, for example. For its part, the CFTC argues that because the CFTC action has now settled, any order that might be entered in that action would be of no effect. But under the terms of the amended protective order entered in the CFTC action following the settlement, the Defendants remain in possession of the Appellants’ documents. Were we to conclude that the Defendants hold those documents in violation of the Appellants’ rights to protect their confidential information, we could grant the Appellants at least partial relief by ordering the Defendants to return or destroy the documents, see Church of Scientology, 506 U.S. at 12 (“Even though it is now too late to prevent, or to provide a fully satisfactory remedy for, the invasion of privacy that occurred when the IRS obtained the information on the tapes, a court does have the power to effectuate a partial remedy by ordering the Government to destroy or return any and all copies it may have in its possession.”). We accordingly conclude that neither appeal is moot. Turning to the merits, district courts “enjoy[] wide discretion in [their] handling of pretrial discovery,” and “[w]e will reverse a district court’s discovery ruling only upon a clear showing of an abuse of discretion.” Wills v. Amerada Hess Corp., 379 F.3d 32, 51 (2d Cir. 2004). “A district court ‘abuses’ or ‘exceeds’ the discretion accorded to it when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision—though not necessarily the product of a legal error or a 6 clearly erroneous factual finding—cannot be located within the range of permissible decisions.” Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001) (footnotes omitted). The Appellants first argue that the documents in question have not been shown to be relevant. Under Federal Rule of Civil Procedure 26, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). In addition, “[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.” Id. “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Relevance to the subject matter under Rule 26 is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). In this case, the Defendants served requests on the CFTC seeking documents referring or relating to the Defendants, and the CFTC, based on its limited resources, conducted a relevance review using sampling techniques and date ranges to identify responsive records. The district court then found that the documents the CFTC produced were relevant to the class action, even where they included the Defendants’ internal communications and financial reports, records from outside the period of the Defendants’ alleged scheme, and documents regarding other grades of oil. The court reasoned that such documents could shed light on the perceptions and reactions of other market participants to the alleged manipulation, provide a benchmark for the behavior of a non-manipulated market, and inform an analysis of the scope of the pertinent market. We see no abuse of discretion in these determinations. In addition, while the Appellants 7 fault the CFTC, the Class Plaintiffs, and the district court for failing to conduct a more particularized relevance analysis, the Appellants cite no authority requiring particularized relevance determinations, and the text of Rule 26 is to the contrary. See Fed. R. Civ. P. 26(b)(1) (requiring only that discovery be “reasonably calculated to lead to the discovery of admissible evidence” (emphasis added)). In the alternative, the Appellants argue that any relevance the documents may have had is outweighed by the Appellants’ strong interest in maintaining the privacy of their confidential business records. Under Rule 26(c), a district court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” including by “requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way.” Fed. R. Civ. P. 26(c)(1), (c)(1)(G). This rule “confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). The district court here carefully considered the Appellants’ interest in confidentiality, and in fact strengthened the already stringent requirements of the protective orders in both cases in response to the Appellants’ concerns. We find no abuse of discretion in the district court’s determination that the strengthened protective orders—which closely limit the individuals who can view highly confidential documents—adequately protect the Appellants’ confidentiality. The Appellants also raise broader policy concerns regarding the district court’s orders, contending that they will chill third parties like the Appellants from cooperating with government investigations. But the CFTC here provided notice when it first sought the 8 Appellants’ documents that whatever the Appellants turned over would be subject to “routine uses,” including use in litigation and disclosure in response to a subpoena. Br. for CFTC, add. at 2–3. Moreover, the Appellants’ policy concerns were considered and rejected not only by the district court but also by the CFTC, both of whom are better situated than we are to weigh concerns about cooperation with future government investigations against other relevant considerations. Again, we see no abuse of discretion. We have considered all of the Appellants’ remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the orders of the district court are AFFIRMED. FOR THE COURT: CATHERINE O’HAGAN WOLFE, CLERK

White, on the brief), Vinson & Elkins LLP,

20 We measure federal trademark infringement, 15 U.S.C. S 1114, and federal unfair competition, 15 U.S.C. S 1125(a)(1)(A), by identical standards. See A&H III, 166 F.3d at 202. 5 To prove either form of Lanham Act violation, a plaintiff must demonstrate that (1) it has a valid and legally protectable mark; (2) it owns the mark; and (3) the defendant's use of the mark to identify goods or services causes a likelihood of confusion. See Commerce Nat'l Ins. Servs., Inc. v. Commerce Ins. Agency, Inc., 214 F.3d 432, 437 (3d Cir. 2000). The plaintiff bears the burden of proof. See American Home Prods. Corp. v. Barr Labs., Inc., 834 F.2d 368, 371 (3d Cir. 1987). It is undisputed that A&H owns Miraclesuit, and that it is a valid and legally protectable mark. Therefore, the questions in this case involve the delineation and application of standards for the evaluation of likelihood of confusion. 21 22 A likelihood of confusion exists when consumers viewing the mark would probably assume that the product or service it represents is associated with the source of a different product or service identified by a similar mark. Dranoff-Perlstein Assocs. v. Sklar, 967 F.2d 852, 862 (3d Cir. 1992) (quotation marks omitted). In Interpace Corp. v. Lapp, Inc., 721 F.2d 460 (3d Cir. 1983), we stated that when the goods involved in a trademark infringement action directly compete with each other, a court need rarely look beyond the mark itself to determine the likelihood of confusion. Id. at 462. For noncompeting goods, we developed a nonexhaustive list of factors to consider in determining whether there is a likelihood of confusion between marks: 23 (1) the degree of similarity between the owner's mark and the alleged infringing mark; 24 (2) the strength of the owner's mark; 25 (3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; (4) the length of time the defendant has used the mark without evidence of actual confusion arising; 26 (5) the intent of the defendant in adopting the mark; 27 (6) the evidence of actual confusion; 28 (7) whether the goods, though not competing, are marketed through the same channels of trade and advertised through the same media; 29 (8) the extent to which the targets of the parties' sales efforts are the same; 30 (9) the relationship of the goods in the minds of consumers because of the similarity of function; 31 (10) other facts suggesting that the consuming public might expect the prior owner to manufacture a product in the defendant's market, or that he is likely to expand into that market. 32 Id. at 463 (citing Scott Paper Co. v. Scott's Liquid Gold, Inc., 589 F.2d 1225, 1229 (3d Cir. 1978)). Throughout the opinion we will refer to these factors as the Lapp factors. 33 The District Court recognized that we have not explicitly elucidated what kind of factors should be considered in the case of directly competing goods. A&H IV, 57 F. Supp. 2d at 163. It chose not to use the Lapp test, but instead developed its own test, drawing on many of the same factors: 34 (1) strength of the plaintiff's mark; 35 (2) similarity between the marks; 36 (3) similarity of the products and the degree to which they directly compete with each other; 37 (4) marketing or advertising channels used; 38 (5) sophistication of consumers; 39 (6) defendant's intent in selecting the mark; and 40 (7) incidents of actual confusion. 41 Id. A&H contends that the District Court erred in three ways in applying these factors. First, it argues that when goods are directly competing, a district court need only examine the similarity of the marks. Second, it submits that inasmuch as the District Court fashioned its own test, the Lapp factors it omitted would have tipped the balance in favor of finding a likelihood of confusion. Third, it contends that on any test the similarity of the marks creates a likelihood of confusion. 42 We have not previously settled upon a method that district courts should use to examine whether there exists a likelihood of confusion between directly competing goods. Uncertainty on this point in the district courts within the circuit, as demonstrated in the margin, counsels that we clarify this area of law. 6 43 The multi-factored test rescribed above was developed to determine likelihood of confusion for noncompeting goods. See Versa Prods. Co., Inc. v. Bifold Co. (Mfg.) Ltd., 50 F.3d 189, 202 (3d Cir. 1995). This genesis is apparent in the substance of the test: factor (7) directs a court to look at the markets of the goods though not competing; factor (9) directs that the court examine the similarity of function; and factor (10) directs that the court look at other facts suggesting that the consuming public might expect the prior owner to manufacture a product in the defendant's market, or that he is likely to expand into that market. These factors are not apposite for directly competing goods: By definition, the goods are competing, their function is the same, and the senior and junior user are already in each other's markets. 44 Nonetheless, despite the test's etiology, the raison d'etre of the Lapp factors and the purpose of their development was to aid in the navigation of the difficult course of determining a likelihood of confusion. A district court should not be foreclosed from using any factors that it deems helpful in analyzing whether a likelihood of confusion exists between given products, whether or not they directly compete. Lapp's suggestion that, for competing goods, the court need rarely look beyond the mark itself, Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 462 (3d Cir. 1983), may be an exercise in unjustified optimism; cases are often not easy, and courts will frequently need help in sorting out the likelihood of confusion. District courts within this circuit, as well as other appellate courts, have found that consideration of the Lapp factors (or their analogs from other circuits) can be quite useful for determining likelihood of confusion even when the goods compete directly. See, e.g., Barr e-National, Inc. v. Barr Labs., Inc., 773 F. Supp. 735, 742 (D.N.J. 1991); Banff, Ltd. v. Federated Dep't Stores, Inc., 841 F.2d 486, 490 (2d Cir. 1988). 45 Further, we recognize that many of the Lapp factors that are specifically applicable only to noncompeting goods are often used by courts to determine, in the first instance, whether goods are or are not directly competing. This makes the plaintiff's proposed prohibition on the examination of evidence beyond the marks themselves somewhat illusory. For instance, in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979), the Court of Appeals for the Ninth Circuit concluded that two lines of recreational boats were not directly competitive because they were marketed to different consumers and were designed for different uses. See id. at 348. This inquiry approximates Lapp factors (8) and (9), which look to the different functions of the products and the different target customers. Similarly, in Induct-O-Matic Corp. v. Inductotherm Corp., 747 F.2d 358 (6th Cir. 1984), the court affirmed a district court's conclusion that the parties were direct competitors based on an examination of the similarity of the parties' customer base, geographical trading area, and products, see id. at 362, factors which approximate Lapp factors (7), (8), and (9). Indeed, in A&H I, the District Court first applied the Lapp test in analyzing A&H's infringement claim regarding the use of The Miracle Bra mark on lingerie, and then observed that much of the same analysis could be used to determine whether The Miracle Bra swimsuit and the Miraclesuit shared the same market. See id. at 1266. 7 46 The above observations lead us to conclude that the Lapp factors should be used both for competing and for noncompeting goods. As for those factors that specifically refer to noncompeting goods, we believe that, rather than force courts first to inquire as to whether or not the goods are directly competitive simply for the purpose of determining if those factors apply--and, presumably, applying Lapp factors to make this initial determination-- factors (7), (9), and (10) of the Lapp test must be adapted to make them applicable whether the products directly compete or not. 47 In holding that the Lapp test is to be employed when examining both competing and noncompeting goods, we acknowledge that we have at times suggested that the method for comparing competing goods is different from that for noncompeting goods. In Williamson-Dickie Manufacturing Co. v. Davis Manufacturing Co., 251 F.2d 924 (3d Cir. 1958), for example, we did not look beyond the marks themselves in upholding a trial court's determination that the marks Dickie Davis and Dickie's for boys' clothing were confusingly similar. See id. at 926-27. Furthermore, in Lapp we stated that 48 [w]here the trademark owner and the alleged infringer deal in competing goods or services, the court need rarely look beyond the mark itself. In those cases the court will generally examine the registered mark, determine whether it is inherently distinctive or has acquired sufficient secondary meaning to make it distinctive, and compare it against the challenged mark. 49 721 F.2d at 462 (emphasis added). Additionally, in Fisons, we noted that the 50 showing of proof plaintiff must make for [likelihood of confusion] depends on whether the goods or services offered by the trademark owner and the alleged infringer are in direct competition . . . . Where the goods or services are not competing, the similarity of the marks is only one of a number of factors the court must examine to determine likelihood of confusion. 51 30 F.3d at 472-73. Finally, in A&H III, we stated that the standard to be applied when goods . . . are directly competing . . . is different than that applied when the goods are not competing. 166 F.3d at 202. In each of these cases, we arguably implied that when the goods are competing, the similarity of the marks is the only relevant factor. 52 Nonetheless, we read our prior opinions on this subject to counsel only that a district court may, if it so chooses, examine only mark similarity for directly competing goods. 53 A&H urges us to take the quoted statement from A&H III to mean that a district court should not consider any factors at all beyond the similarity of the marks themselves. However, we believe that the word standard is different from the word test. The better reading of this statement is the literal one: The standard for determining when marks are likely to be confused is different when the marks directly compete, i.e., the factor regarding the similarity of marks may increase in importance, but it does not eliminate the other factors entirely. This proposition is not only unremarkable, it flows naturally from the Lapp test, which considers the competition and potential competition of the products in the marketplace. We have certainly never held that a court may not look beyond the marks themselves to determine likelihood of confusion. The quote from Lapp itself, rescribed in our prior opinion in this case (the court need rarely look beyond the mark itself ) presumes that a court might sometimes need to look beyond the mark. Lapp, 721 F.2d at 462. 54 We think that this inference is a sound one, for there appears to be no reason, statutory or otherwise, to impose the restrictive rule proposed by A&H. Indeed, the cases relied upon by A&H do no more than suggest that the Lapp inquiry may be unnecessary in some directly competing goods cases. See, e.g., A&H III, 166 F.3d at 202 (holding that in directly competing goods cases, the multi-factored test is not required). At all events, because we have never before been confronted with this question, any implication in our prior cases that courts are foreclosed from looking beyond mark similarity for competing goods would have been dictum. 55 Our conclusion that the Lapp factors may be used to determine the likelihood of confusion in cases of directly competing goods, at least when the marks are not identical, accords with the approaches of the Second, Sixth, Eighth, and Ninth Circuits, which also have approved using multi-factored tests, developed for noncompetitive goods, in the competitive goods arena. See Banff, Ltd. v. Federated Dep't Stores, Inc., 841 F.2d 486, 490 (2d Cir. 1988); Jet, Inc. v. Sewage Aeration Sys., 165 F.3d 419, 421-22 (6th Cir. 1999); Duluth News-Tribune v. Mesabi Publ'g Co., 84 F.3d 1093, 1096 (8th Cir. 1996); Dr. Seuss Enters., L.P. v. Penguin Books U.S.A., Inc., 109 F.3d 1394, 1404 (9th Cir. 1997). 56 As explained above, we do not hold that a District Court must use the factors. In fact our precedents suggest the opposite. If products are directly competing, and the marks are clearly very similar, a district judge should feel free to consider only the similarity of the marks themselves. See, e.g., Opticians Ass'n of Am. v. Independent Opticians of Am., 920 F.2d 187, 195 (3d Cir. 1990) ([v]ery little analysis was necessary in a case where a splinter group of a larger organization continued to use the organization's collective mark). Moreover, the court often need not apply each and every factor; when goods are directly competing, both precedent and common sense counsel that the similarity of the marks takes on great prominence. 8 At all events, the factors are meant to be tools, not hurdles. On the other hand, when, as in this case, the degree of confusing similarity of the marks is not clear, see Barre-National, Inc., 773 F. Supp. at 742, a court can turn to the other factors. Here, the District Court did not err in choosing to look beyond the marks themselves. 57 To summarize, we hold that whether or not the goods directly compete, the Lapp factors should be employed to test for likelihood of confusion. Therefore, likelihood of confusion for both competing and noncompeting goods should be tested with reference to the following: 58 (1) the degree of similarity between the owner's mark and the alleged infringing mark; 59 (2) the strength of the owner's mark; 60 (3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; 61 (4) the length of time the defendant has used the mark without evidence of actual confusion arising; 62 (5) the intent of the defendant in adopting the mark; 63 (6) the evidence of actual confusion; 64 (7) whether the goods, competing or not competing, are marketed through the same channels of trade and advertised through the same media; 65 (8) the extent to which the targets of the parties' sales efforts are the same; 66 (9) the relationship of the goods in the minds of consumers, whether because of the near-identity of the products, the similarity of function, or other factors; 67 (10) other facts suggesting that the consuming public might expect the prior owner to manufacture both products, or expect the prior owner to manufacture a product in the defendant's market, or expect that the prior owner is likely to expand into the defendant's market. 68 As we stress further below, the Lapp test is a qualitative inquiry. Not all factors will be relevant in all cases; further, the different factors may properly be accorded different weights depending on the particular factual setting. A district court should utilize the factors that seem appropriate to a given situation. 69 A&H argues in the alternative that inasmuch as the District Court used a multi-factored test, it should have considered all of the Lapp factors, and that the missing factors would have favored A&H. It therefore contends that the court erred as a matter of law in fashioning its own test. However, the test used by the District Court is functionally the same as the Lapp test. A comparison of these factor lists reveals that the ostensibly missing Lapp factors appear to be incorporated into the District Court's test. Lapp factor (9), the relationship of the goods in the minds of the consumers because of the similarity of function, and Lapp factor (8), the extent to which the targets of the parties' sales efforts are the same, are subsumed in the court's factor (3), which considers the similarity of the products and the degree to which they directly compete with each other. Lapp factor (4), the length of time the defendant has used the mark without evidence of actual confusion is subsumed along with factor (6), evidence of actual confusion, within the District Court's factor (7), incidents of actual confusion. Lapp factor (10), other facts suggesting that the consuming public might expect the prior owner to manufacture both products, or expect the prior owner to manufacture a product in the defendant's market, or expect that the prior owner is likely to expand into the defendant's market, is unmentioned, but also unnecessary, because the similarity of the goods and their competitive relationship was accounted for in the court's factor (3). 70 A&H essentially argues that, had the Lapp test been applied as written, a greater absolute number of factors would have been decided in its favor, thus leading to a different outcome; for instance, the court's factor (3), rather than counting in its favor a single time, would have been divided into at least two factors, each of which would have weighed in its favor. However, we have repeatedly insisted that the Lapp factors are not to be mechanically tallied, but rather that they are tools to guide a qualitative decision. See Fisons, 30 F.3d at 476 n.11 (The weight given to each factor in the overall picture, as well as its weighing for plaintiff or defendant, must be done on an individual fact- specific basis.). 71 The District Court did not engage in a simplistic quantitative comparison, but accurately understood the role of the factors: 72 No single factor is dispositive, and a finding of a likelihood of confusion does not require a positive finding on a majority of these factors. Instead, they are simply a guide to help determine whether confusion would be likely between the use of two contested trademarks on competing products. In addition to the listed factors, a court is free to consider other relevant factors in determining whether a likelihood of confusion exists. 73 A&H IV, 57 F. Supp. 2d at 164 (citations omitted). Although it might promote clarity always to use the same factors in the same order, the District Court covered all the ground covered by the Lapp factors and did so with care. Therefore, we conclude, the court did not err in its use of the factors.

The Direct Confusion Claim

On cross-appeal, Independent Living challenges the district court's August 27, 2008 order modifying its August 18, 2008 order granting Independent Living's motion for a preliminary injunction. Independent Living principally argues that, in modifying the earlier order to eliminate its retroactive effect, the district court misconstrued the extent of the State's sovereign immunity. [17] Independent Living contends that the State of California has consented to actions in state court for retroactive awards of unlawfully withheld funds. Independent Living further maintains that, by removing this case to federal court, the Director waived whatever immunity he had in state court. The Director responds that the district court correctly modified the August 18 order. He contends that requiring a state agency to expend state funds based on past conduct violates state sovereign immunity, which, the Director insists, was never waived in either the state or federal forum. The doctrine of state sovereign immunity generally prohibits damage suits against states in both state and federal court without their consent. The doctrine comes from the Eleventh Amendment, but its essence derives ... from the structure of the original Constitution itself. Alden, 527 U.S. at 728, 119 S.Ct. 2240; see id. at 713, 119 S.Ct. 2240 (characterizing sovereign immunity as a fundamental aspect of the sovereignty which the States enjoyed before ratification of the Constitution, and which they retain today). The Supreme Court has held that state sovereign immunity bars citizens of any state from bringing a lawsuit for damages against a state or state agency. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); see also Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 33 L.Ed. 842 (1890). However, there are three well-established exceptions to this general rule. Two of them— Ex parte Young and state waiver (both explicit consent and implied removal waiver)—are relevant here, and we consider them below. [18] Although the Eleventh Amendment expressly prohibits suits against states in both law and equity, a plaintiff may nonetheless maintain a federal action to compel a state official's prospective compliance with the plaintiffs federal rights. Ex parte Young, 209 U.S. 123, 156, 28 S.Ct. 441, 52 L.Ed. 714 (1908); id. at 160, 28 S.Ct. 441 (The State has no power to impart to [its officer] any immunity from responsibility to the supreme authority of the United States.); see also Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (citing Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714). The court may order such an injunction even if the state's compliance will have an ancillary effect on the state treasury. Edelman, 415 U.S. at 667-68, 94 S.Ct. 1347 (citing Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714). This exception applies only to prospective relief; it does not permit retroactive injunctive relief. Id. at 668, 94 S.Ct. 1347. In this case, the August 18 order constituted retroactive relief under our controlling precedent. In Native Village of Noatak v. Blatchford, we held that, [i]n requesting an order requiring the Commissioner to perform his `legal duty' to disburse ... funds to him, the plaintiff essentially seeks an injunction directing the state to pay damages. 38 F.3d 1505, 1512 (9th Cir.1994). What the plaintiff sought, we held, was precisely the type of retroactive relief that the Supreme Court refused to allow in Edelman, and therefore his attempt to characterize its claim as one for prospective relief fail[ed] to avoid the bar of the Eleventh Amendment. Id. In this matter, the August 18 order provided retroactive relief that required the State to pay monetary compensation to affected providers. [19] Therefore, under Native Village of Noatak, the retroactive portion of that order does not fall under the Ex parte Young exception to the sovereign immunity doctrine. As a result, the order violated the State's sovereign immunity unless the Director waived that immunity—impliedly through removal, explicitly through consent to suit in state court, or through some combination thereof—an issue we now consider. Even if a plaintiff seeks damages for past conduct, sovereign immunity will not insulate a state from suit in state court, provided the state has previously consented to be sued in state court under like circumstances. See Carey v. Nev. Gaming Control Bd., 279 F.3d 873, 877 (9th Cir.2002). While a state's consent to suit in its own courts does not waive sovereign immunity against suit in federal court, Carey, 279 F.3d at 877 (noting that waiver of sovereign immunity only gives [the state's] consent to suits in its own courts), a state that consents to suit in state court cannot invoke the sovereign immunity defense after removing the suit to federal court, Embury v. King, 361 F.3d 562, 566 (9th Cir.2004); Stewart v. North Carolina, 393 F.3d 484, 488 (4th Cir.2005). As a result, given that the Director removed the case, sovereign immunity will not protect him if the State has previously consented to suits like this one in state court. Here, Independent Living points to several state authorities it claims constitute such consent. First, it notes that California Code of Civil Procedure § 1085 provides: A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station. Though it does not explicitly waive sovereign immunity against retroactive disbursements, this provision can be read to sanction judicially ordered fund disbursements generally. California state courts, some interpreting California Code of Civil Procedure § 1085, have condoned such orders in more explicit terms. Various decisions have interpreted state law to permit mandamus actions seeking disbursement of unlawfully withheld funds. See, e.g., County of L.A. v. Riley, 20 Cal.2d 652, 128 P.2d 537, 543 (1942); L.A. County v. State Dep't of Pub. Health, 158 Cal.App.2d 425, 443, 322 P.2d 968 (1958). Notably, some of these cases have specifically recognized the availability of monetary awards against a state agency or official resulting from unlawfully withheld health and welfare payments. See Mission Reg'l Med. Ctr. v. Shewry, 168 Cal.App.4th 460, 480, 85 Cal.Rptr.3d 639 (2008) (citing Code of Civil Procedure § 1085); Santa Ana Hosp. Med. Ctr. v. Belshe, 56 Cal.App.4th 819, 837, 65 Cal. Rptr.2d 754 (1997) (noting that [a]ctions seeking traditional mandamus to compel a state officer to comply with a mandatory duty to disburse funds do not invade sovereign immunity, even though they involve an incidental monetary award (citing of Sacramento v. Lackner, 97 Cal.App.3d 576, 587-88, 159 Cal.Rptr. 1 (Cal.Ct.App. 1979))). In Los Angeles County v. Riley, the court authorized back payments for needy services against the State and noted that [t]he rule is well established in this state that where the action is one simply to compel an officer to perform a duty expressly enjoined upon him by law, it may not be considered a suit against the state. 128 P.2d at 543 (citing, e.g., Bd. of Dirs. of Woman's Relief Corps Home Ass'n of Cal. v. Nye, 8 Cal.App. 527, 97 P. 208 (Cal.Ct. App.1908)); see also L.A. County v. State Dep't of Pub. Health, 158 Cal.App.2d at 442-43, 322 P.2d 968; id. at 443, 322 P.2d 968 (holding that because the object of the present suits is to compel state officers to disburse funds specifically appropriated for tuberculosis subsidies in the manner provided by the statute, the order involves no invasion of state sovereignty and does not fall within the rule precluding suits against the state without its consent). Thus, California has construed the scope of its sovereign immunity as it relates to awards of unlawfully withheld funds more narrowly than have the federal courts. Compare, e.g., L.A. County, 158 Cal.App.2d at 442-43, 322 P.2d 968 with Edelman, 415 U.S. at 668, 94 S.Ct. 1347, and Noatak, 38 F.3d at 1512. Under California law, an action seeking injunctive relief that requires a state official to disburse funds is not an action against the State. Thus, it does not implicate the State's sovereign immunity against liability in its own courts. Had this action remained in state court, the Director would not have enjoyed sovereign immunity against a order directing payment of retroactive benefits. Under our precedent, because the Director enjoyed no sovereign immunity in state court against a order directing payment of retroactive benefits, it follows that the Director—by removing the case to federal court—waived sovereign immunity in that forum as well. See Embury, 361 F.3d at 566 (citing Lapides v. Board of Regents, 535 U.S. 613, 623-24, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002)) (holding that, in removing a case to federal court, a state defendant waives its Eleventh Amendment immunity); see also Stewart, 393 F.3d at 488. Embury's rule is grounded on the Supreme Court's holding in Lapides, which held that where a state removed a state law defamation action to federal court, it waived its sovereign immunity against the state claim. Id. at 624, 122 S.Ct. 1640. Embury extended Lapides' s principle to federal claims. [20] 361 F.3d at 565-66 (citing Lapides, 535 U.S. at 620, 623-24, 122 S.Ct. 1640). Under Embury, the Director, having waived state court immunity, also waived federal court sovereign immunity by voluntarily removing the action. Because the Director lacked sovereign immunity against retroactive orders, the district court's August 18 order should have applied retroactively. As a result, by basing its order on an erroneous legal standard, the district court erred in eliminating the injunction's retroactive effect. We hold that the district court's injunction should extend to all services covered by that injunction and provided on or after July 1, 2008. Independent Living also contends that the district court's August 27, 2008 order violated their right to due process, namely, their property right in the judgment reflected in the court's August 18, 2008 order. They also allege that, in modifying the August 18 order, the district court abused its discretion under Federal Rule of Civil Procedure 59(e). Based on our conclusion that the August 27, 2008 order erroneously construed the State's sovereign immunity, we do not reach these claims.

Sovereign Immunity and the Order Modifying the Injunction

13 The ADA prohibits employer discrimination against an employee on the basis of a disability. 42 U.S.C. sec. 12112(a). However, to make a prima facie case for discrimination, Sinkler must demonstrate that her condition qualifies as a disability within the meaning of the ADA. See Feldman, 196 F.3d at 789. The statute defines disability as: 14 (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; 15 (B) a record of such impairment; or 16 (C) being regarded as having such an impairment. 17 42 U.S.C. sec. 12102(2). If Sinkler's condition does not rise to the level of a disability as defined by the act, then she cannot recover even if Midwest terminated her expressly because of her condition. See Skorup v. Modern Door Corp., 153 F.3d 512, 514 (7th Cir. 1998). Moreover, if Sinkler's condition fails to fall within the definition of impairment set forth in sec. 12102(2)(A), she cannot assert that Midwest terminated her because she had a record of that condition. See Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 510 n. 7 (7th Cir. 1998) (What 12102(2)(B) requires is not simply a diagnosis, but a record reflecting the kind of impairment that would impose a substantial limitation on one or more of the plaintiff's major life activities.); 29 C.F.R. sec. 1630.2(k). 18 In Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 2202 (1998), the Supreme Court identified a three-step test to determine if a physical or mental condition met subsection (A) of the definition of disability. First, we must determine whether the condition claimed was a physical or mental impairment. See id. Second, we identify the life activity upon which [Sinkler] relies . . . and determine whether it constitutes a major life activity under the ADA. Id. Third, we determine whether the impairment substantially limited this major life activity. See id. Midwest concedes that Sinkler's driving phobia constitutes an impairment, so we focus on the substance of Sinkler's complaint, which is that her impairment substantially limits a major life activity. 19 Applying the second step of the Bragdon test, we isolate the major life activity affected by Sinkler's impairment. An ADA claimant must specify which major life activity has been limited; only those grounds specifically raised will be considered on appeal. See Bragdon, 118 S.Ct. at 2205 (restricting analysis of whether HIV is an ADA disability to its limitation of reproduction because the case has been treated as one in which reproduction was the major life activity limited by the impairment, and [i]t is our practice to decide cases on the grounds raised). Equal Employment Opportunity Commission regulations interpreting the ADA define major life activities by providing a list that includes functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. sec. 1630.2(i). 20 Rather than enunciating a general principle for determining what is and is not a major life activity, the ADA regulations provide a representative list, which is intended to be illustrative, not exhaustive. Bragdon, 118 S.Ct. at 2205. When analyzing whether an unlisted activity constitutes a major life activity, the touchstone for determining an activity's inclusion under the statutory rubric is its significance. Id. (internal citation omitted). According to this standard, we consider unlisted activities in contrast to listed activities to determine whether the unlisted activity has equal significance. One standard by which significance has been judged is whether the average person in the general population can perform [the activity] with little or no difficulty. Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir. 1999). However, when considering an activity's significance, we ask whether an activity is significant within the meaning of the ADA, not whether it is significant to a particular person. See Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 642 (2d Cir. 1998). 21 In her memorandum in opposition to Midwest's motion for summary judgment, Sinkler identified working as the major life activity that her impairment affected. She stated that her disability has created a major impact on her ability to work over the years because she can only hold jobs which will not require her to drive in unfamiliar places. Accordingly, the district court analyzed whether her impairment substantially limited her ability to work. The court found no substantial limitation and granted Midwest's motion for summary judgment. On appeal, Sinkler claims that the district court misunderstood which major life activity her impairment limited. She now argues that her phobia limits her major life functions of getting to and from her work assignments, . . . thinking, concentrating, and basic personal mobility. 22 Sinkler has never before raised the issues that her phobia affects her ability to think, concentrate or limit her basic personal mobility, so Sinkler has waived these claims. See Hoeller v. Eaton Corp., 149 F.3d 621, 625 (7th Cir. 1998). In support of her contention that commuting to and from work is a major life activity, Sinkler cites dicta from other circuits that extol the importance of timeliness to work performance. See Lyons v. Legal Aid Soc'y, 68 F.3d 1512, 1516 (2d Cir. 1995) (noting that an essential aspect of many jobs is the ability to appear at work regularly and on time); Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994) ([A]n essential function of any government job is an ability to appear for work.). These statements were made in the context of an ADA reasonable accommodation analysis rather than ADA major life activity analysis, and for this reason, they provide little insight into whether commuting should be considered an independent major life activity. However, to the extent that such statements are relevant, they suggest that getting to and from work is important to performance at work, but they do not suggest that driving to work assignments is one of the basic functions of life. Knapp v. Northwestern Univ., 101 F.3d 473, 479 (7th Cir. 1996). Because working is a major life activity, 1 we understand that, as a matter of law, the average person must be able to get to and from work. Nonetheless, in comparison with the major life activity of working, or with any of the other listed activities, we do not find commuting equally significant. Getting to and from work assignments is not a major life activity. Rather, this task is either a sub-species of the activity of working or of driving. 23 Although the Second Circuit has concluded that driving is not the type of endeavor that may be characterized as a major life activity, see Colwell, 158 F.3d at 643, we need not reach that issue. We believe that the major life activity that Sinkler describes has not changed. Instead, she has merely attempted to re-characterize the activity of working as a narrower activity of getting to and from work assignments in the hope that we will reach a more favorable determination of the extent to which her impairment limits this activity. We conclude that working is the major life activity that Sinkler claims her impairment limits, and we will evaluate her claim of substantial limitation from this perspective. 24 The final step of the Bragdon test is to determine whether Sinkler's impairment set a substantial limit on her major life activity of working. See Bragdon, 118 S.Ct. at 2202. The district court found that because Sinkler was able to hold a broad range of other jobs, her inability to perform jobs that required travel to unfamiliar areas did not constitute a substantial limitation on her ability to work. Sinkler contends that the district court erred because her impairment constituted a significant barrier for her personal employment possibilities. 25 In the context of the major life activity of working, '[s]ubstantially limits' means that a person is either '[u]nable to perform a major life activity' or is 'significantly restricted as to the condition, manner or duration' under which the individual can perform the major life activity as compared to the average person in the general population. Skorup, 153 F.3d at 514 (quoting 29 C.F.R. sec. 1630.2(j)(1)). However, an inability to perform a particular job for a particular employer is insufficient to establish substantial limitation. Byrne v. Board of Educ., 979 F.2d 560, 565 (7th Cir. 1992). Instead, the impairment must substantially limit employment generally. Id. While we note that substantial limitation must be mea-sured by considering Sinkler's particular impairment to determine whether it constituted a significant barrier to her employment, taking her unique circumstances into account, see id., Sinkler has the burden of presenting evidence to identify how her impairment limited an entire class or broad range of jobs. See Skorup, 153 F.3d at 515. 26 Sinkler has made two claims that demonstrate ways in which her phobia limits her ability to work: she was forced to turn down a promotion that would have required her regularly to drive to Milwaukee, and her phobia was the basis for her discharge from Midwest. Even viewed in the light most favorable to her, these facts do not show that Sinkler's phobia substantially limited her ability to work. The fact that Sinkler has been forced to decline promotions that would require her to travel regularly outside of her comfort zone suggests that Sinkler's impairment, when viewed in a light most favorable to Sinkler, restricts her from holding any job that would require her regularly to travel by car to areas unfamiliar to her. Assuming as we must that her termination from Midwest was based on her impairment, this fact also indicates that her impairment restricts her from taking sales jobs that require frequent travel by car to unfamiliar areas. Although many sales jobs require business travel to unfamiliar areas, we do not believe that these jobs amount to a broad enough class to constitute a substantial limitation. 27 Many facts in the record demonstrate that a broad range of jobs remain open to Sinkler. As the district court noted, Sinkler was employed for thirty years in the Kenosha area prior to working for Midwest, and she has produced no evidence that she was impeded by her impairment in the performance of those jobs. Sinkler was able to find a job in sales after she was discharged by Midwest, and Sinkler presents no evidence of any limitation on her performance in that job. In addition, although Sinkler may be unable to accept employment that requires her to drive outside of the Kenosha area, she presents no evidence that she is unable to work for an employer located outside the Kenosha area. Sinkler's impairment does not prevent her from working for any employer which is easily accessible by public transportation or car-pool. This class of employers includes the large number of companies located in the Chicago and Milwaukee metropolitan areas. Finally, certain facts indicate that Sinkler's fear of unfamiliar places can be overcome. Sinkler told Midwest that if she could act as a passenger on trips to Springfield, then she might feel more comfortable with making the trip by herself. This indicates that Sinkler's impairment does not limit her from working for employers who require driving to places outside of her comfort zone, as long as Sinkler is first allowed to travel with other employees and become familiar with the trips she must make. 28 Sinkler did not provide the district court with sufficient evidence to conclude that her condition precludes her from taking any broad range of jobs, such as all sales jobs. For this reason, we find that her impairment does not substantially limit her major life activity of working and does not meet the definition of a disability under sec. 12102(2)(A). 29 Sinkler also argues both that her record of impairment led to her discharge, under sec. 12102(2)(B), and that Midwest discharged her because it perceived that she was disabled within the meaning of the ADA, under sec. 12102 (2)(C). Sinkler provides no evidence that the record of her impairment had any effect on her discharge, so we find no error in the district court's grant of summary judgment as to the sec. 12102(2)(B) claim. However, Sinkler claims that Drew Lombardo, the CEO of Midwest, told her that she was being fired because she had lied by not informing him that she was handicapped. Lombardo apparently felt that Sinkler's impairment constituted a handicap to her ability to perform the tasks required as regional sales manager, one of which appears to be frequent travel to unfamiliar areas. 30 To prevail on the sec. 12102(2)(C) claim that she was discriminated against by Midwest because it believed she was disabled, Sinkler must show that Midwest believed that she was unable to work in a particular class or broad range of jobs as required in the definition of disability under sec. 12102(2)(A). See Skorup, 153 F.3d at 515. Because we have found that Sinkler's specific phobia is not an impairment that substantially limits her ability to work, to defeat Midwest's motion for summary judgment Sinkler must show that Midwest believed her phobia limited the class of jobs that Sinkler could perform more broadly than her phobia actually limited her. Sinkler provides no evidence to demonstrate that Midwest believed that she was disabled within the definition of the ADA or that it believed her impairment would limit her ability to work at a broad range of jobs. 31 Sinkler claims that the evidence suggests that Midwest believed her unable to drive to and from work at all. Her testimony about Lombardo's statements does show, when viewed most favorably for the plaintiff, that Midwest fired her because of her impairment, that is her fear of driving to unfamiliar places. However, the evidence that she provides does not support the inference that Midwest believed her unable to commute to work generally. The hotel was located in Zion, Illinois, which is some eight miles from Kenosha, Wisconsin, but Midwest required Sinkler to drive from Kenosha to Zion to go to work. From these facts, we infer that Midwest knew that Sinkler drove every day to work. Because Midwest did not indicate that a history of tardiness or absenteeism was a basis for Sinkler's termination, we infer that Midwest found no problems with Sinkler's regular commute, only with her ability to drive to unfamiliar areas. Sinkler has presented no other evidence from which we reasonably may infer that Midwest believed Sinkler was incapable of driving at all. Her evidence only demonstrates that Midwest felt that she was incapable of performing the driving to unfamiliar areas which was required of a regional sales manager. We find that Midwest did not perceive Sinkler as having an impairment which would substantially limit her ability to perform any broad range of jobs.

Sinkler's Disability

22 The district court determined that standing in this case depended on satisfaction of four criteria and that plaintiffs satisfied none of them. First, the court said, plaintiffs asserted no distinct, palpable, and concrete injury. 480 F.Supp. at 793. Nor could plaintiffs establish such an injury, according to the district court, for they were in a dilemma: 23 If plaintiffs can prove that a private school is discriminating in direct contravention of the Constitution and federal law, such discrimination is redressable through an ordinary lawsuit in an adversary context filed directly against the offending school. If, on the other hand, plaintiffs cannot prove such discrimination, they have failed to assert a distinct, palpable, and concrete injury and thus lack the requisite standing to assert their claims. 24 Id. at 794. Plaintiffs urge that this analysis fits a complaint they did not bring. They maintain they have no interest whatever in enrolling their children in a private school. They assail only government action. The sole injury they claim is the denigration they suffer as black parents and schoolchildren when their government graces with tax-exempt status educational institutions in their communities that treat members of their race as persons of lesser worth. Plaintiffs point out that the district court cited, but did not purport to distinguish, Supreme Court decisions recognizing the standing of black citizens, parents, and schoolchildren to challenge government action on that basis: Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971), aff'g mem. Green v. Connally, 330 F.Supp. 1150 (D.D.C.); Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973); and Gilmore v. City of Montgomery, 417 U.S. 556, 94 S.Ct. 2416, 41 L.Ed.2d 304 (1974). 25 Second, assuming the injury plaintiffs complained of was inflicted by private schools that practiced race discrimination, the court concluded that such an injury was not fairly traceable to IRS action. For this conclusion, the court relied dominantly on Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). Again, plaintiffs insist, the court misidentified their grievance. Eastern Kentucky might well control, they concede, were they endeavoring to gain access to the private schools. But that is not what they want. Rather, plaintiffs repeat, they seek to stop government from bestowing any advantage on an educational facility that contributes to the perpetuation of racial discrimination in the localities in which they reside. 26 Third, the district court stated that it was purely speculative whether the relief requested would redress plaintiffs' injury. 480 F.Supp. at 795-96. The loss of tax exemption might not produce any net change in the public school population; schools might forego exemption rather than end any discriminatory conduct; the procedures plaintiffs proposed might not yield fewer tax exemptions than the system the IRS now employs. Regarding the first two points, once more, plaintiffs say, the injury they assert is not the one the district court describes. The very act by the IRS of according tax exemption to a school that discriminates in their vicinity causes immediate injury to them, plaintiffs maintain, and that is the only injury for which they seek redress. 27 Concerning the likelihood that invigorated IRS procedures would yield fewer tax exemptions, plaintiffs point out that the district court's dismissal of the case at the threshold precluded any evidentiary submission. They further note that the Commissioner of Internal Revenue had told Congress that existing procedures were ineffective in identifying schools which in actual operation discriminate against minority students. Hearings, supra note 1, at 5. Finally, they suggest that the court's action in Green contradicts its conclusion in Wright about the speculativeness of the relief requested. If tighter IRS procedures are not likely to yield fewer tax exemptions, plaintiffs note, it is hard to imagine why the court ordered the Service to adopt such procedures in Green. 28 As a final point, the district court expressed the view that no genuine article III case or controversy existed because the defendant IRS seems to have nothing to lose if it were forced to grant less tax exemptions to private schools. 480 F.Supp. at 796. The real losers, the court said, would be parties the plaintiffs had not sued, schools (p)laintiffs would deprive ... of their valuable tax exempt status. Id. Plaintiffs and the Service, the court added, seem closely allied in terms of the need to promulgate future guidelines. Id. But it was the IRS that defended successfully against this action in the district court. Nor did the Service exhibit any lack of adversary zeal in the briefs and oral argument it presented to this court. Moreover, a strong advocate of the private schools that resist more stringent guidelines is participating in this action as intervenor. We therefore find that the case has the earmarks of a fully adversary contest. 29 On this point too, Green stands in jarring contrast. The posture of the IRS is not different in the two cases. While intervenors originally participated in Green and indeed pursued that case in the Supreme Court, no intervenor appears to have participated actively in the reopened Green proceeding as intervenor Allen did in Wright. Nevertheless, the district court treated Green as a genuine case or controversy and, as we recounted earlier, required the Service to tighten its procedures in dealing with Mississippi schools. 30 B. Divergent Supreme Court Precedent : Eastern Kentucky on the one hand ; Green, Norwood, and Gilmore on the other 31 The law of standing has been described as extraordinarily uneven. 22 In the welter and confusion of case law and commentary, there is one point of clear agreement: (L)ower courts and practitioners especially need Supreme Court guidance. 23 The guidance the High Court has supplied relevant to the case at hand points in opposite directions. Simon v. Eastern Kentucky Welfare Rights Organization, relied upon by the district court, suggests that litigation concerning tax liability is a matter between taxpayer and IRS, with the door barely ajar for third party challenges. Green, Norwood, and Gilmore, on the other hand, indicate that black citizens have standing to complain against government action alleged to give aid or comfort to private schools practicing race discrimination in their communities. 32 In this opinion, we do not search for a grand solution that will unclutter this area of the law and lead to secure, evenhanded adjudication. Instead, as an intermediate court of review, we select from two divergent lines of Supreme Court decision the one we believe best fits the case before us. 33 We turn first to Eastern Kentucky. There indigents and organizations of indigents challenged a Revenue Ruling discontinuing a requirement that a hospital, to be classified as charitable under section 501(c)(3), must provide free or below cost service to indigents to the extent of its financial ability. After the new Ruling, some of the plaintiffs had been denied hospital services on account of their indigency. The Supreme Court held that plaintiffs lacked standing to bring the suit. 34 Plaintiffs' injury, the Court said, was the denial of hospital service. But plaintiffs could not show that the hospitals' refusal to serve them resulted from the Ruling. It is purely speculative, the Court declared, whether the denials of service specified in the complaint fairly can be traced to (the Ruling) or instead result from decisions made by the hospitals without regard to the tax implications. 426 U.S. at 42-43, 96 S.Ct. at 1926-1927. Justice Stewart, concurring, commented: I cannot now imagine a case, at least outside the First Amendment area, where a person whose own tax liability was not affected ever could have standing to litigate the federal tax liability of someone else. Id. at 46, 96 S.Ct. at 1928. 24 35 Plaintiffs do not dispute that it is speculative, within the Eastern Kentucky frame, whether any private school would welcome blacks in order to retain tax exemption 25 or would relinquish exemption to retain current practices. 26 They claim indifference as to the course private schools would take. Plaintiffs strenuously argue, however, that Eastern Kentucky is the wrong frame for their case. They assert, in essence, that there is at least one domain outside the First Amendment area where a person whose own tax liability is not affected has the requisite standing to challenge the administration of tax law, and that this lawsuit occupies that domain. We agree that Eastern Kentucky is not the line appropriately followed in the matter before us. 36 We turn next to the three adjudications that appear to us determinative of the standing issue in this case: the companion Green litigation; Norwood v. Harrison ; and Gilmore v. City of Montgomery. All three involved, in common with the matter before us, charges of government conduct alleged to be inconsistent with an overriding, constitutionally rooted national policy against racial discrimination in United States educational facilities. Again in line with the instant case, none involved a claim for relief against private actors. 37 As we set out earlier, see pp. 822, 823, 825, 826, 827 supra, the plaintiffs in Green, like those in Wright, are black parents and their minor schoolchildren attending public schools in desegregating areas; in both cases, the plaintiffs charged that the Internal Revenue Service has failed, through the inadequacy of its monitoring procedures, to confine tax-exempt status to private schools that do not practice racial discrimination. The remedy sought in the two cases, except for its geographical scope, is the same the institution of procedures adequate to the task. That remedy, plaintiffs in both cases assert, matches precisely the injury they allege. 38 Norwood, like Green and Wright, was brought by parents of black schoolchildren against a government actor. Plaintiffs sought to enjoin in part the enforcement of Mississippi's long-established textbook lending program. The Mississippi Textbook Purchasing Board provided free textbooks to all schools in the state, including a number of all-white, nonsectarian private schools which (had) been formed throughout the state since the inception of public school desegregation. Norwood v. Harrison, 340 F.Supp. 1003, 1011 (N.D.Miss.1972), vacated and remanded, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973). Despite the origin of the program in the days before school desegregation, and even if the textbook loans were motivated by ... a sincere interest in the educational welfare of all Mississippi children, 413 U.S. at 466, 93 S.Ct. at 2811, the Supreme Court held the scheme unconstitutional to the extent that it did not steer clear ... of giving significant aid to institutions that practice racial ... discrimination. Id. at 467, 93 S.Ct. at 2812. 39 Of prime relevance to the case at hand, the Court in Norwood plainly stated that it was not critical to the plaintiffs' claim for relief whether any child enrolled in private school, if deprived of free textbooks, would withdraw from private school and subsequently enroll in the public schools. Id. at 465, 93 S.Ct. at 2811 (quoting from 340 F.Supp. at 1013). Chief Justice Burger, writing for the Court, explained: 40 We do not agree with the District Court in its analysis of the legal consequences of (the) uncertainty (whether the relief requested would result in student transfers from private to public schools), for the Constitution does not permit the State to aid discrimination even when there is no precise causal relationship between state financial aid to a private school and the continued well-being of that school. A State may not grant the type of tangible financial aid here involved if that aid has a significant tendency to facilitate, reinforce, and support private discrimination. 41 Id. at 465-66, 93 S.Ct. at 2810-11. 42 Plaintiffs in Norwood, like the plaintiffs here, indicated no interest in attending the private schools that received textbooks at state expense, nor did they show that the textbook subsidy kept those schools afloat. The gravamen of plaintiffs' complaint was that the state had aided private racial discrimination when the Constitution commanded that government steer clear of such action. That complaint was enough, the Court's disposition clarifies, to entitle plaintiffs to relief. Without departing radically from Norwood, therefore, we cannot accept the district court's apparent view that plaintiffs here must either pursue relief they do not want admission of their children to private schools or allege and prove that withdrawal of tax-exempt status would cause those schools to suffer enrollment declines and, correspondingly, quicken the pace of public school desegregation. 43 Finally, in Gilmore v. City of Montgomery, black citizens who had brought a successful action in 1958 to desegregate public parks in Montgomery, Alabama, reopened the litigation in 1970 and sought supplemental relief in 1971. They complained that the city was allowing racially segregated schools and other segregated private groups and clubs to use city parks and recreational facilities. 417 U.S. at 562, 94 S.Ct. at 2421. The Court sustained a lower court injunction to the extent that it barred exclusive temporary use of public recreation facilities by segregated private schools. Citing Norwood, the Court repeated in Gilmore that 44 any tangible state assistance, outside the generalized services government might provide to private segregated schools in common with other schools, and with all citizens, is constitutionally prohibited if it has a significant tendency to facilitate, reinforce, and support private discrimination.417 U.S. at 568-69, 94 S.Ct. at 2423-24 (quoting from 413 U.S. at 466, 93 S.Ct. at 2811). While Gilmore suggested that the plaintiffs might not have standing to claim relief against certain nonexclusive uses by private school groups, id. at 570 n.10, 94 S.Ct. at 2425 n.10, the Court had little difficulty concluding that plaintiffs were entitled to challenge special reservation of playing fields for such groups. 45 Like the tax-exempt status at issue here, the exclusive temporary use of park facilities in Gilmore was a government benefit not available to the public generally. Government must steer clear of providing such benefits to racially discriminatory local groups. Norwood, 413 U.S. at 467, 93 S.Ct. at 2812. The Gilmore plaintiffs, black citizens of the community, were considered appropriate enforcers of that obligation although they made no showing that the segregated schools would change their policies or close up shop were they denied specially reserved access to park football fields and baseball diamonds. All that could be said with security was that the special arrangements made life easier for such schools. 46 Green, Norwood, and Gilmore presented plaintiffs whose standing seems to us indistinguishable on any principled ground from the standing of the plaintiffs in this action. If the plaintiffs before us are not entitled to question the IRS practices at issue here, it is difficult to comprehend why the Green, Norwood, and Gilmore plaintiffs were entitled to challenge the tax exemptions, textbook loans, and specially reserved park facilities at issue in those cases. 27 We therefore inquire next whether those precedents remain vital, or whether they have been overruled, sub silentio, by Eastern Kentucky. 47 The Supreme Court's decisions in Green, Norwood, and Gilmore did not focus on standing as Eastern Kentucky did. But as Eastern Kentucky emphasized, (t)he necessity that the plaintiff who seeks to invoke judicial power stand to profit in some personal interest remains an Art. III requirement. A federal court cannot ignore this requirement without overstepping its assigned role in our system of adjudicating only actual cases and controversies. 426 U.S. at 39, 96 S.Ct. at 1925. Absent explicit Supreme Court direction to do so, we resist impugning High Court precedent by indulging the assumption that the Court reached the merits in Green, Norwood, and Gilmore in disregard of the standing requirement. Accord, Moton v. Lambert, 508 F.Supp. 367, 369-70 (N.D.Miss.1981). Such an assumption appears all the more unwarranted in view of the indications in all three cases that the Court's attention was drawn to the issue. 48 In Green, standing was addressed summarily in the lower court. 309 F.Supp. at 1132. 28 More significantly, the Jurisdictional Statement in Green spotlighted the question. Filed by intervenor Coit, as representative of a class of parents and children who supported or attended all-white private schools, the Jurisdictional Statement listed plaintiffs' standing first among Questions Presented by the Appeal. Jurisdictional Statement at 11, Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971). As Coit framed the issue: Was the lower court in error in holding that plaintiffs had constitutional standing to restrain federal recognition of educational exemptions for private segregated schools? Id. While we do not ascribe to the Supreme Court's summary affirmance in Green wholesale endorsement of the district court's views, 29 the High Court's disposition is binding upon us until such time as the Court informs us otherwise. Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 2289-90, 45 L.Ed.2d 223 (1975). As already observed, we do not believe a lower court should cast aside the Supreme Court's judgment in Green by ascribing to that tribunal a rush to decision, heedless of core justiciability requirements. 49 In Norwood, as in Green, plaintiffs' standing was challenged in the lower court. 340 F.Supp. at 1007. However, the issue was not pursued on appeal. But, of course, the question could have been raised by the Supreme Court sua sponte if it entertained doubt as to plaintiffs' satisfaction of a core Article III requirement. Finally, in Gilmore, the Court adverted specifically to the requirement that plaintiffs have standing to pursue the relief requested. 417 U.S. at 570 n.10, 94 S.Ct. at 2424 n.10. 50 In Eastern Kentucky, the Supreme Court viewed plaintiffs' sole injury as inflicted by the hospitals that declined to serve indigents, and not by the Internal Revenue Service. 426 U.S. at 40-41, 96 S.Ct. at 1925-26. In contrast, the Court did not approach Green, Norwood, and Gilmore as assaults mounted against government action in an indirect effort to gain access to a nongovernmental facility. Rather, the Court recognized the right of black citizens to insist that their government steer clear of aiding schools in their communities that practice race discrimination. In view of the centrality of that right in our contemporary (post-Civil War) constitutional order, we are unable to conclude that Eastern Kentucky speaks to the issue before us. We therefore follow Green, Norwood, and Gilmore, unless and until the Supreme Court instructs us otherwise, and accordingly find no standing impediment to plaintiffs' claim. 51

The District Court's Position

The State asserts that the interest accrued on its tax revenues does not constitute property belonging to Copeland's estate, and that both 11 U.S.C. § 541(d) and the relevant cases under the Bankruptcy Code fully support the entitlement of a trust beneficiary to recover interest on its trust funds pursuant to applicable non-bankruptcy law. In support of this proposition, the State relies upon In re MCZ, Inc., 82 B.R. 40, 42-43 (Bankr.S.D.Tex.1987), and In re Goldblatt, 61 B.R. at 46364. In MCZ, the bankruptcy court held that the question as to whether Debtor is entitled to interest accruing on such funds is a question of state agency or trust law. 82 B.R. at 43. Similarly, in Goldblatt, the court held that, [s]ince the trust funds are not property of they estate, questions as to whether [the plaintiff] is entitled to interest on those funds, and if so at what rate, are issues to be determined by trust law. 61 B.R. at 463-64. Texas trust law provides that, in collecting and holding the State's sales tax revenues, Copeland acted merely as a trustee for the State; it never held any equitable rights to the State's sales tax revenues. TEX.TAX CODE ANN. § 111.016 (Vernon 1992) (providing that the person who collects sales tax revenues holds them in trust for the benefit of the state);7 see also Begier, 496 U.S. at 59, 110 S.Ct. at 2263 (Because the debtor does not own an equitable interest in property he holds in trust for another, that interest is not property of the estate.' ). Moreover, as is discussed infra at Part II.B, the payment of penalties and interest on delinquent trust funds is prescribed by Texas law. See TEX.TAX CODE ANN. §§ 111.016, 111.060 (Vernon 1992). As recognized by the bankruptcy court, [i]t would be antithetical to the concept of trust 7 A very limited exception to section 111.016 is provided under section 151.423 of the Texas Tax Code, which states that [a] taxpayer may deduct and withhold one-half of one percent of the amount of taxes due from the taxpayer on a timely return.... TEX.TAX CODE ANN. § 151.423 (Vernon 1992). funds' to allow the Debtor's estate to profit by keeping the interest which has been earned on money the estate does not own.... Copeland, 133 B.R. at 842, citing Goldblatt Bros., Inc, 61 B.R. at 464 (Even if a trustee has not committed a breach of trust, he is generally liable for any interest which he received from the trust funds.). We agree with the bankruptcy court that, just as Copeland held no equitable interest in the State's sales tax revenues, it now holds no equitable claim to the interest actually accrued on those revenues during the time they were overdue. The State holds an equitable claim to this interest, and we conclude, therefore, that the interest actually earned on the State's sales tax revenues during the period they were overdue belongs to the State. See 11 U.S.C. § 541(d) (excluding property from the debtor's estate where equitable interest in that property belongs to another).

The Interest Actually Earned

9 When the Trade Port office reopened on September 8, 1999, Higdon arrived to a line for commercial processors that stretched outside the front door. After waiting in line for approximately three and one-half hours, Higdon's left leg swelled and hurt. She waited about fifteen more minutes and then asked Mary McMichael, a Department of Motor Vehicles supervisor, for permission to use the disabled line. Higdon complained about her leg injury, that she was in pain, and that her leg was swelling from standing in line. McMichael denied her request because Higdon was a commercial processor and the policy did not allow commercial processors to use the disabled line. Higdon then showed McMichael her disabled parking permit and again asked if she could use the disabled line. McMichael said, no, sorry, and left. 10 Shortly thereafter, McMichael returned and offered Higdon an office chair on rollers so Higdon could sit while she was waiting in line. Higdon testified that McMichael scooted [the chair] towards [Higdon], and as she was walking away made a comment, here's a chair, and walked off. Higdon did not use the chair, however, because it's harder ... to get up and down and to control [her] legs in a sitting position than it would be ... just to stand. She also stated that she would have been unable to maneuver the chair in the line with her leg immobilized and her hands filled with title processing files. Before leaving, Higdon obtained the titles that she sought that day. 11 During the remainder of September, the length of the lines steadily decreased. All commercial processors, including Higdon, were still required to stand in the commercial line and were not allowed to proceed directly to the disabled window. Higdon testified that she made several more requests for an accommodation, other than using the office chair in line. The only accommodation she requested was to be treated the same as an applicant for a title for a personal car who was allowed to use the disabled line and proceed directly to the disabled window. 12

Higdon's Request for an Accommodation for Her Alleged Disability

12 Title 8 U.S.C.A. Sec. 1451(a) provides two methods for revocation of an individual's citizenship: (1) If the individual illegally procured his citizenship, or (2) if citizenship were procured by concealment of a material fact or wilful misrepresentation. 13 14 Citizenship is illegally procured if some statutory requirement which is a condition precedent to naturalization is absent at the time the petition is granted. H.R.Rep. 1086, 87 Cong., 1st Sess. 39, reprinted in [1961] U.S.Code Cong. & Admn.News, 2950, 2983. See also, Fedorenko v. United States, 449 U.S. 490, 515, 101 S.Ct. 737, 751, 66 L.Ed.2d 686 (1981). Lawful admittance to the United States is a statutory condition precedent to naturalization. 8 U.S.C.A. Sec. 1429. If Koziy were ineligible for a visa, he would be unlawfully admitted to the United States. The United States produced various witnesses to testify to Koziy's affiliations with the Ukranian Police and the OUN. Involvement with the Ukranian Police or the OUN would preclude Koziy from receiving a visa under the Displaced Persons Act of 1948. 15 The United States produced witnesses who testified they saw Bohdan Koziy in a Ukranian police uniform killing unarmed civilians in the town of Lisets. Josef-Waclaw Jablonski testified he saw Koziy at least once a week in a Ukranian police uniform. He also saw Koziy kill the Singer girl and members of the Kandler family. Jablonski stated that he was 100 percent positive that Koziy committed both acts. Anton Vatseb corroborated Jablonski's story. Vatseb testified he saw Koziy kill the Kandlers and the Singer girl. Vatseb also testified he was with Jablonski when Koziy shot the Singer girl. Vatseb stated that the Kandler family was shot in the same fashion as Jablonski had stated. Three witnesses, Anna Snigur, Maria Antoniva Il'kovs'ka, and Yosif Frankovich Il'kovs'kii, testified that they saw Koziy kill the Bredgolts's family while wearing a Ukranian police uniform. 16 The United States also produced two exhibits which corroborated the witnesses' testimony declaring that Koziy was a member of the Ukranian police force. The anmeldung and the abmeldung, Ukranian police employment forms, both contained Koziy's signature. Each document represented Koziy's affiliation with the Ukranian police. Koziy, however, claims he was never employed in the Ukranian police force. 17 Koziy presented his testimony and the testimony of three witnesses to refute the government's contention that he was a member of the Ukranian police force. First, his wife testified and contended that Koziy was never a member of the Ukranian police force. Second, Wasyl Ostapiak, Koziy's father-in-law, and a resident of the town of Lisets during World War II, testified he never saw Koziy in a Ukranian police uniform. Mykola Ostatiak testified that he never saw Koziy in a Ukrainian police uniform. Koziy himself took the stand and declared he was never involved in the Ukranian police force. Koziy, however, did state that he wore the uniform of the Ukranian police force on a few occasions as a disguise to conceal his membership in the OUN. Koziy contends this evidence displays his non-affiliation with the Ukranian police force. 18 To prevail in a denaturalization proceeding, the government must prove its case by clear, convincing, and unequivocal evidence, and leave no issue in doubt. Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 746, 66 L.Ed.2d 686 (1981); United States v. Chaunt, 364 U.S. 350, 353, 81 S.Ct. 147, 149, 5 L.Ed.2d 120 (1966); Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct. 1333, 1336, 87 L.Ed. 1796 (1943). The district court held that the government fulfilled its burden of showing Koziy's membership in the Ukranian police. It found that Koziy was ineligible for a visa under the Displaced Persons Act and was never lawfully admitted into the United States. The district court, therefore, held that Koziy had illegally procured his citizenship because he had failed to fulfill a statutory condition precedent to naturalization. 19 In reviewing factual findings of the district court, we are bound by the clearly erroneous standard of Fed.R.Civ.P. 52(a). Inwood Laboratories v. Ives Laboratories, 456 U.S. 844, 855, 102 S.Ct. 2182, 2188, 72 L.Ed.2d 606 (1982); United States v. United States Gypsum Co., 333 U.S. 364, 394-95, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948); Wilson v. Thompson, 638 F.2d 799, 801 (5th Cir.1981). The district court's factual findings concerning Koziy's affiliation with the Ukranian police are not clearly erroneous. 20 The only issue concerning Koziy's affiliation with the OUN is whether the OUN was, at the time under consideration, hostile to the United States. Koziy testified that he was extensively involved with the OUN's activities during World War II. The United States presented the same witnesses who testified about Koziy's shooting innocent civilians to report about the OUN's hostility towards the United States. These witnesses testified that the OUN committed atrocities against Polish civilians who were United States allies. The United States also introduced a document which the Displaced Persons Commission formulated exhibiting all organizations considered hostile to the United States. The OUN was listed on it. The United States produced the resolution of the Second Congress of the OUN which exhibited the OUN's anti-semitic ideology. The government also displayed various applications for admission to the United States which the DPC denied because of the individuals' affiliations with the OUN. 21 To rebut the government's contention that the OUN was hostile to the United States, Koziy presented an expert witness on the OUN, Dr. Petro Murchuk. He testified that the OUN was never hostile to the United States. 3 Koziy also testified declaring that the OUN was never hostile to the United States. Koziy, however, stated that the OUN killed Russian partisans during World War II. The United States and Russia were allies during World War II. 22 The district court found that the government had fulfilled its burden of proof with respect to Koziy's involvement with the OUN and held that Koziy was ineligible for a visa, and therefore was never lawfully admitted into the United States. It ruled Koziy had illegally procured his citizenship. We fail to find the district court's factual findings regarding Koziy's affiliations with the OUN clearly erroneous. Hamm v. Members of Board of Regents of the State of Florida, 708 F.2d 647, 650 (11th Cir.1983); Lincoln v. Board of Regents of the University System of Georgia, 697 F.2d 928, 939 (11th Cir.1983). 23 Being of good moral character is another statutory condition precedent to naturalization. 8 U.S.C.A. Sec. 1427(a)(3). A person who has given false testimony for the purpose of obtaining benefits under the immigration laws lacks good moral character. 8 U.S.C.A. Sec. 1101(f)(6). The district court found Koziy had failed to reveal his wartime activities in his visa and naturalization applications, and therefore, lacked good moral character. The district court held Koziy had illegally procured his citizenship because he had failed to satisfy a statutory condition precedent to naturalization. 24 Unless the district court's factual findings are clearly erroneous, we are compelled to abide by them. Hamm, at 650; Lincoln, at 939. The district court's factual findings are not clearly erroneous. 25 Fact or by Willful Misrepresentation 26 Under 8 U.S.C.A. Sec. 1451(a), if naturalization is procured by concealment of a material fact or by willful misrepresentation, it must be revoked. In a denaturalization proceeding, concealed facts are material if either they would have warranted denial of citizenship if known, or if the disclosure might have led to an investigation into other facts warranting denial of citizenship. United States v. Fedorenko, 597 F.2d 946, 949-52 (5th Cir.1979), aff'd Fedorenko v. United States, 449 U.S. 490, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981). The district court found that Koziy had failed to disclose his affiliation with the OUN in his application to file a petition for naturalization. It held that if he had disclosed his affiliation with the organization, it would have led to an investigation into other facts which might have warranted a denial of citizenship. The district court, therefore, held Koziy's naturalization was procured by a concealment of a material fact. The district court found that Koziy never disclosed his membership in the Ukranian Police force. It ruled that if he had disclosed his connection with the police force in his visa application, his application would have been rejected outright, or at the least, an investigation would have commenced which might have led to a denial of citizenship. His failure to disclose his affiliation with the police force, therefore, was a concealment of a material fact, and his naturalization was procured by concealment of a material fact. These findings are not clearly erroneous.

The Trial Court's Revocation of Koziy's Citizenship Pursuant to 8 U.S.C.A. Sec. 1451(a).

Federal Election Commission 27 Counts 2 and 3 of the indictment charged that the defendants violated, or caused to be violated, 18 U.S.C. Sec. 1001, which prohibits the knowing or willfull concealment of material facts from an agency of the United States. Robert and Morten Hopkins were both convicted on these counts for concealing material facts from the Federal Election Commission in two reports to the FEC from the Hopkins' political action committee. 28 The Hopkins first contend that the Government did not present sufficient evidence to prove that the defendants' failure to disclose the true source of the political contributions was willfull. The Hopkins' contention is meritless. The Government may prove that a false representation is made knowingly and willfully by proof that the defendant acted deliberately and with knowledge that the representation was false. United States v. Guzman, 781 F.2d 428, 431 (5th Cir.), cert. denied, 475 U.S. 1143, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986). The Government here presented ample evidence to establish both of these items. The jury was entitled to infer from the defendants' elaborate scheme for disguising their corporate political contributions that the defendants deliberately conveyed information they knew to be false to the Federal Election Commission. 29 The Hopkins also contend that if false reports were made, they did not make them or cause them to be made. While it may be true that the Hopkins themselves did not make the reports, it is clear that they deliberately caused those reports to contain false information. 9 The evidence showed that by keeping him unaware of their scheme, the Hopkins caused another individual, the Treasurer of their political action committee, to report to the Federal Election Commission that the contributions to the political action committee were from individuals. [I]t is well-established that [18 U.S.C.] Sec. 2(b) was designed to impose criminal liability on one who causes an intermediary to commit a criminal act, even though the intermediary who performed the act has no criminal intent and hence is innocent of the substantive crime charged. United States v. Tobon-Builes, 706 F.2d 1092, 1099 (11th Cir.1983). See also United States v. Cure, 804 F.2d 625, 629 (11th Cir.1986). 30

Causing the Concealment of a Material Fact from the

25 Because there was no violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq., in this case, Sandles is not entitled to have the indictment against him dismissed. See United States v. Robinson, 389 F.3d 582, 586 (6th Cir.2004). It appears that Sandles' argument is premised on the fact that, according to him, the district court should not have granted his attorney's motion that requested an extension of time to file a notice of insanity because his counsel failed to demonstrate good cause for the extension. This premise is faulty. Federal Rule of Criminal Procedure 12.2(a) requires the defense to notify the Government by the time set by the trial court if the defense plans to rely upon the insanity defense. That rule grants the trial court discretion to extend the time for good cause. Id. Sandles' counsel filed the motion indicating that she needed time to have Sandles evaluated by a psychiatrist to determine whether there were any grounds for the insanity defense. This was a reasonable request because defense counsel was seeking to ensure that she did not waste the court's time with the invocation of a frivolous defense at trial. Sandles cannot challenge now the district court's granting of his counsel's motion, which was supported with good cause and not opposed by the Government, that permitted him to raise his key defense at trial.

Alleged Speedy Trial Act Violation

58 We review for abuse of discretion determinations of issues and claims to be retried following the grant of a new trial. Vizzini, 569 F.2d at 760. Under Federal Rule of Civil Procedure 59(a), a partial new trial is appropriate if the issue being retried is so distinct and separable from the others that a trial of it alone may be had without injustice. Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 75 L.Ed. 1188 (1931); see also Stanton by Brooks v. Astra Pharm. Prods., 718 F.2d 553, 576 (3d Cir.1983). 59 Here, the FLSA was dismissed on an unopposed Federal Rule of Civil Procedure 50 motion before the first case went to the jury and after Armstrong had agreed that there was no evidence to support the claim. As such, it is difficult to understand how the FLSA claim could be so closely intertwined with the LAD claims to require its retrial if both parties agreed that no support existed for the FLSA claim, and yet sufficient evidence existed to send the separate LAD claims to the jury. Thus, the District Court did not abuse its discretion by ordering a new trial on the LAD claims that were decided by the jury while denying retrial on an issue previously dismissed for lack of evidence.

Denial of Retrial of Armstrong's FLSA Claim

44 Scott and Switzer argue that even assuming that Vasbinder established that they unlawfully retaliated against him for exercising his First Amendment rights, they are protected by the doctrine of qualified immunity. That doctrine shields state officials from liability for damages if their actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known, Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), or even where the rights were clearly established, if it was objectively reasonable for the defendants to believe that their acts did not violate those rights, see Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987); Robison v. Via, 821 F.2d 913, 921 (2d Cir.1987). The official does not have such immunity where the contours of the right were sufficiently clear that a reasonable official would understand that what he is doing violates that right. Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. at 3039. 45 The district court here ruled that the law was clear at the time of the retaliation against Vasbinder, which commenced in November 1982, that defendants' actions would violate his First Amendment rights. We agree. It was established at least as early as 1968 in Pickering v. Board of Education that a state employee's good-faith public criticism of the allocation of public funds, was constitutionally protected where the efficiency of the public service the state was performing was not impaired thereby. 391 U.S. at 568, 569-73, 88 S.Ct. at 1734, 1735-37. In Dobosz v. Walsh, 892 F.2d 1135, 1141-42 (2d Cir.1989), this Court ruled that it was clearly established in 1981 that a municipal policeman cooperating with the FBI in an investigation of charges against another policeman was exercising his First Amendment right to free speech, and that the defendant who retaliated by suspending him was therefore not entitled to qualified immunity. In Rookard v. Health & Hospitals Corp., 710 F.2d 41, we dealt with another retaliatory demotion occurring in 1981 as a result of complaints of corrupt and wasteful practices, communicated by a municipal hospital's director of nursing to a city official empowered to investigate. Noting that the charges involved a matter of public concern, that Rookard was demoted because of her complaints, and that there was no suggestion that Rookard's complaints, though irritating to her superior, in any way impaired her ability to perform her job or interfered with the operations of the hospital, we ruled that she had so plainly established a prima facie violation of her First Amendment rights that the district court, in a bench trial, could not properly dismiss at the close of Rookard's case. 46 Defendants rely principally on Giacalone v. Abrams, 850 F.2d 79, for the proposition that they could not have been expected to know that retaliation against Vasbinder for going to the FBI would violate his First Amendment rights. Their reliance is misplaced. Giacalone involved a state employee who was concerned with the legal interpretation of a provision of federal tax law and was insisten[t] on having his [legal] conclusions control the handling of [a] tax dispute. Id. at 88. Though in the litigation the employee advanced other concerns going to more serious matters of potential impropriety, he had not in fact expressed any such concern prior to being fired. On those facts, we concluded that under the general standard established in Pickering and its progeny, it remained objectively reasonable for the state to believe that the termination of such an employee would not violate his First Amendment rights. 47 Giacalone thus is easily distinguishable from the present case, as the matters communicated there were considerably less weighty than Vasbinder's communication as to possible fraud and theft. The present case is not meaningfully distinguishable from Dobosz and Rookard. Here, as in Dobosz, the employee communicated matters of possible malfeasance to the FBI; here, as in Rookard, the employee complained about misuse of public funds. In both Dobosz and Rookard, the retaliatory personnel actions occurred in 1981, and we found that the violation of the plaintiffs' First Amendment rights was clear. The unlawfulness of such retaliation had not become less clear by the time of the Scott-Switzer retaliation against Vasbinder in 1982 and 1983. 48

The Rejection of the Qualified Immunity Defense

69 In Gaylor, we stated that Oklahoma's bad faith law does not regulate the spreading of policyholder risk. 112 F.3d at 466. Our analysis continued: 70 A law which defines the manner in which insurance claims should be processed declares only that, whatever terms have been agreed upon in the insurance contract, a breach of that contract may in certain circumstances allow the policyholder to obtain [consequential and] punitive damages. Pilot Life, 481 U.S. at 51, 107 S.Ct. 1549. Such a law thus does not effect a change in the risk borne by insurers and the insured, because it does not affect the substantive terms of the insurance contract. On the other hand, a law mandating that a certain disease be covered under health insurance contracts would effect a spread of risk, both from insureds to insurers, and among the insureds themselves. 71 Id. (emphasis added). 1 We hold that the reasoning of Gaynor and Conover are still binding upon us and that Oklahoma's bad faith claims do not fall within ERISA's savings clause. But see Kidneigh, 345 F.3d at 1191 (Henry, J., concurring in part and dissenting in part). We affirm the district court's grant of summary judgment on this issue.

Substantially Affects the Risk Pooling Arrangement

21 At the hearing, Sgt. Edwards' October 5, 1995 misbehavior report was read into the record and Cerio heard the testimony of Edwards and Ameigh, supporting each of the charges against Kalwasinski. Cerio also played Coleman's taped testimony, which did not contradict any material evidence presented by the officers. We conclude that sufficient evidence was presented at the hearing to support each of the charges on which Kalwasinksi was found guilty. See Hill, 472 U.S. at 455. 22 We also note that, in accordance with due process, a written report prepared by Cerio, stating the evidence on which he relied and the reasons for the disposition, was presented to Kalwasinski on November 1, 1995. 23

Statement of Evidence and Reasons for the Disposition

30 The United States also moves to dismiss the RFRA claims for failure to state a claim, contending that we may exercise pendent party jurisdiction over its appeal because the issues raised in its appeal are coterminous with those raised by the INS officials' qualified immunity appeal. As will appear, however, our dismissal of the RFRA claim against the INS officials does not dispose of the RFRA claim against the United States. See infra at section V. We therefore lack jurisdiction over the United States' appeal. See Huskey v. City of San Jose, 204 F.3d 893, 905 (9th Cir.2000) (Th[e] narrow avenue for the continued use of pendent appellate jurisdiction left open by Swint would not apply to the instant case if our ruling on the merits of the collateral qualified immunity appeal did not resolve all of the remaining issues presented by the pendent appeal.).

United States

Captain D's argues that the district court gave two erroneous instructions and an erroneous verdict form to the jury. However, Captain D's fails to designate, and we cannot find, any clear or distinct objection to these instructions and verdict form in the record. [44] Thus, we review these claims for plain error only. See Russell v. Plano Bank & Trust, 130 F.3d 715, 721 (5th Cir.1997) (Where the party challenging the district court's instructions has failed to raise the objection before the district court and his position has not been made clear to the court in some other manner, our consideration of the issue is limited to plain error review.). Captain D's contends that the district court: (1) gave a jury instruction on respondeat superior that implicitly allowed the jury to impute to Captain D's the independent, criminal conduct of Harris; (2) failed to instruct the jury that Captain D's only owed a duty to supervise or train if it knew of Harris's propensity for violence or of an atmosphere of violence; and (3) provided the jury with a confusing verdict form. We conclude that the district court did not commit clear error in any of these respects. The district court's instructions did not implicitly inform the jury that it could hold Captain D's vicariously liable for Harris's intentional criminal conduct. The district court instructed the jury only on negligence theories and did not mention Harris's intentional criminal conduct except in respect to the defensive theory of superseding cause. The district court instructed that Captain D's could be held liable for its officers' or employees' negligent failure to train or supervise its employees if the jury determined that the negligence on the part of Captain D's was a proximate cause of injury suffered by Foradori. Then, after giving instructions on proximate cause, the court charged the jury that: if you find from a preponderance of the evidence in this case that the defendant Captain D's LLC was negligent in training and/or supervising its employees, but that an independent and unforeseeable act by a third person, namely an assault on Michael Foradori by Garious Harris, followed defendant's negligent acts and was a substantial factor in causing the plaintiff's injuries, then the defendant is not liable for the injuries proximately resulting from the superseding cause and your verdict should be for the defendant. The district court's instructions also admonished the jurors to consider the instructions as a whole and not to single out one instructions as stating the law. We see no plain error in these instructions. Captain D's is simply mistaken in contending that the district court should have instructed the jury that Captain D's liability hinged upon its knowledge of Harris's propensity for violence or of an atmosphere of violence. As we explained earlier in this opinion, Foradori did not seek to hold Captain D's liable on the theory that it negligently hired or retained Harris because it knew or should have known of Harris's propensity for violence; nor did Foradori base his claim on the theory that there was a preexisting atmosphere of violence in the neighbor of the restaurant. Consequently, jury instructions on those theories would have been irrelevant and perhaps misleading and confusing to the jury. The district court did not plainly err in refusing to give them. Also, the district court addressed and corrected any possible confusion in its verdict form. The form at issue was first written: we, the jury, find that both the plaintiff and the defendant ___ were ___ were not negligent. The jury asked what to do if the verdict was for the plaintiff alone. The court conferred with the parties, admitted that there was a problem, and issued a corrective instruction which both parties agreed to and allowed to be given without objection. There was no plain error in this respect.

Jury instructions and verdict forms

Because narrow tailoring dictates that the government use race only when necessary to achieve a compelling interest, it requires serious, good-faith consideration of workable raceneutral alternatives that will achieve the diversity [the government actor] seeks. Grutter, 539 U.S. at 339; see also Wygant, 476 U.S. at 280 n.6. Here, the defendants have met their burden. The record reflects that they seriously considered, and plausibly rejected, a number of race-neutral alternatives. These included (i) a no-transfer policy, see Comfort IV, 283 F. Supp. 2d at 387-88 (crediting evidence from a demographics expert that instituting such a policy would throw several elementary schools into racial imbalance); (ii) a policy of unrestricted transfers, see id. at 388 (crediting evidence that instituting such a policy would result in 500 to 800 segregative transfers per year); (iii) -42- a redrawing of district lines, see id. at 387-88 (noting that this would be impractical); (iv) forced busing, see id. at 387-88 (concluding that the problems that accompany forced busing justified Lynn's rejection of a controlled choice scheme); (v) a lottery system, see id. at 389 (finding that demographic and scheduling factors made this impracticable); and (vi) a plan conditioning transfers on socioeconomic status, rather than race, see id. at 389 n.100 (noting that because of residential patterns, this system would exacerbate existing racial imbalance). The plaintiffs argue that there are several other alternatives that the defendants failed to consider. They point specifically to a Department of Education study reviewing successful race-neutral programs based on socioeconomic status or a lottery, see U.S. Dep't of Educ., Achieving Diversity: RaceNeutral Alternatives in American Education (Feb. 2004), available at http://www.ed.gov/about/offices/list/ocr/raceneutral.html, and to the race-neutral student assignment plan adopted in Boston, see Anderson, 375 F.3d at 76-77. As noted, Lynn has already considered, and rejected, the possibility of basing student assignments on socioeconomic status or a lottery. While the record does not reflect whether Lynn has considered the Boston plan in depth, we note that the Boston plan is specific to the residential patterns in Boston, which differ from those in Lynn. Lynn must keep abreast of possible alternatives as they develop, see Grutter, -43- 539 U.S. at 342-43, but it need not prove the impracticability of every conceivable model for racial integration. It is sufficient that it demonstrate a good faith effort to consider feasible raceneutral alternatives, as it has done here. We therefore hold that the Lynn Plan is narrowly tailored to the defendants' compelling interest in obtaining the benefits of racial diversity.

Consideration of race-neutral alternatives

When the regulators learned of Klopp’s actions, they moved to hold him in contempt. The district court held a contempt hearing in August 2017. At the hearing, regulators presented documentary evidence to support their assertions that Klopp had violated the order. Klopp took the stand in defense and made several admissions. He acknowledged that he never uploaded the Consent Order to the Registry. Klopp similarly admitted to continuing to deal with third-party settlement 5 services. E.g., J.A. 146–47 (“Q: But the fact is that you were asking for a loan—an interest rate concession on a particular consumer loan; isn’t that right? A: It appears that way.”). And he admitted that he never notified regulators of his new office in California. Klopp also described his employment agreement with Peoples Bank & Trust. The agreement compensated Klopp based on the greater of a $2,000 monthly salary or certain profits earned by his brokerage branches. Between January 2016 and March 2017, the business generated an estimated $765,000 in profit, $700,000 of which Klopp allocated to his own earnings. Based on this evidence, the district court found Klopp violated both the activity restrictions and the reporting requirements of the Consent Order. For the activity restrictions, the court found that he impermissibly managed the business, profited from the mortgage industry, and communicated with settlement servicers. And the district court found that Klopp violated the reporting restrictions by failing to upload the Consent Order to the Registry and not informing the regulators of his California activities.

The 2017 civil contempt hearing

31 Marbella argues the district court erred by excluding Ragasa's proposed testimony that Liguya Doan 2 told him the agents were gangsters. Marbella sought to introduce this statement to prove Ragasa paid the agents the referral fees because he was afraid of them. The district court excluded the statement because the court found it to be irrelevant. We agree. 32 Ragasa's alleged fear is not relevant to whether Marbella participated in mail fraud. Marbella had committed the mail fraud before Doan told Ragasa the agents were gangsters. Marbella was not charged with criminal activity in relation to the payment of the fees. The district court did not err by excluding the statement.

Exclusion of Ragasa's Testimony

Under the Criminal Justice Act, 18 U.S.C. § 3006A(e)(1), [c]ounsel for a person who is financially unable to obtain . . . expert . . . services necessary for adequate representation may request them. After conducting an inquiry in an ex parte proceeding, if the court finds that the services are necessary and that the person is financially unable to obtain them, the court . . . shall authorize counsel to obtain the services. Id. The decision to grant or deny a request for services under the Criminal Justice Act will be overturned on appeal where the district court has committed an abuse of discretion. United States v. Smith, 893 F.2d 1573, 1580 (9th Cir.1990). Upon a timely request by an indigent defendant, [t]he statute requires the district judge to authorize[expert] defense services . . . in circumstances in which a reasonable attorney would engage such services for a client having the independent financial means to pay for them. United States v. Bass, 477 F.2d 723, 725 (9th Cir.1973). The court's inquiry into the necessity of services must be specific to the facts of the particular case. See, e.g., United States v. Armstrong, 621 F.2d 951, 956 (9th Cir.1980). In a drug case, the sentence depends primarily on the quantity of narcotics that the court attributes to the defendant. U.S.S.G. §§ 2D1.1, 3D1.2(d), ch. 5 Pt. A. Therefore, from the perspective of defense counsel, formulating a theory of drug quantity is critical. In this case in particular, the only disputed issue was the quantity of methamphetamine produced at the Twilight location, where no methamphetamine was found, so the determination of drug quantity demanded a scientific calculation. Chase reasonably requested the appointment of an expert in forensic chemistry to assist his attorney in formulating a theory of the quantity of methamphetamine and to rebut that of the government's expert. On appeal, the government asserts that defense counsel's cross examination of Rienhardt proved to be sufficient and therefore Chase had no need to hire his own expert. Essentially, the government argues, because Rienhardt agreed with defense counsel's calculation—100 boxes of pseudoephedrine yields forty to sixty grams of methamphetamine—[t]here was nothing for an outside expert to prove. This argument misses the point. While there appears to be no dispute that 100 boxes of pseudoephedrine can produce approximately forty to sixty grams of methamphetamine, the value of the empty boxes as an indicator of the lab's production capacity is hotly contested. The government's expert offered no opinion as to the best available method for estimating drug quantity. The appropriateness of relying on the glass flask, the empty boxes, or some other method is by no means settled, and a defense expert could have informed that discussion. Although the burden of proof of drug quantity lies with the prosecutor, Chase had a right to put on a defense, and to retain an expert if a reasonable attorney would[have] engage[d] such services for a client having the independent financial means to pay for them. Bass, 477 F.2d at 725. [T]he Fourteenth Amendment's due process guarantee of fundamental fairness requires that the basic tools of an adequate defense . . . be provided to those defendants who cannot afford to pay for them. Ake v. Oklahoma, 470 U.S. 68, 76, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (quotations omitted). The Supreme Court has long recognized . . . that . . . justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake. Id. at 76, 105 S.Ct. 1087. In this case, Chase had a right to hire an expert who could have produced his or her own investigation, interpretation, and testimony. Id. at 80, 105 S.Ct. 1087. Additionally, the aid of an expert could have made the cross-examination of Rienhardt more effective. Informed by an expert, Chase's attorney could have asked Rienhardt more specific questions about the formula he used, flaws in that formula, and any additional factors that he should have considered. The attorney could have posed more sophisticated inquiries concerning the literature and experience upon which Rienhardt based his opinion, whether he was familiar with other literature in the field, and whether he would have conceded that other estimation methods might be preferable to the one he had used in this case. The absence of a cross-examination informed by scientific knowledge was highlighted when the district judge asked Rienhardt to play the role of a defense expert. The court asked the government's expert to attack the validity of his own position: THE COURT: All right. Now, if you were asked to attack the method you used, how would you do it? THE WITNESS: If I was going to try to refute what I said? THE COURT: Challenge what you said? THE WITNESS: . . . I don't—I couldn't attack myself. . . . Clearly, both the defendant and the court would have benefited from the services of a defense expert. [4] At least one other circuit recently recognized the necessity of a defense expert in a sentencing hearing involving methamphetamine estimation. See United States v. Hardin, 437 F.3d 463, 470 (5th Cir.2006). In Hardin, the defendant-appellant asserted that bones were a methamphetamine byproduct, which should not have been included in a narcotics calculation. Id. at 466. The Court of Appeals ruled that the district court had erred in denying funds for a defense expert to testify on [this] disputed factual issue regarding [quantity,] the primary issue [in the defendant's] sentence determination. Id. at 470. The Fifth Circuit held that the district judge's denial of the motion for appointment of a chemical expert when necessary to respond to the government's case against [the defendant], where the government's case rest[ed] heavily on a theory most competently addressed by expert testimony, constituted an abuse of discretion. Id. at 468 (citations and quotation omitted). The Court of Appeals ordered the district judge to appoint the requested expert and to re-sentence the defendant after taking expert testimony. Id. at 471. [5] In the case before us, the district court denied Chase's motion to hire an expert on the basis that its estimation of drug quantity did not depend on a finding that Chase used the 5,000-milliliter flask. However, the court did not clarify how it reached its estimate if not for the assumption about the flask, and, indeed, the record specifically reflected that the court estimated a production of 500 to 750 grams of methamphetamine [b]ased upon the information [] contained in the Rienhardt [letter]. Given this record, the district court's explanation for denying the motion to hire an expert was unreasonable. An appellate court will overturn a district court's denial of a request for an expert only where the defendant has demonstrated prejudice. United States v. Sims, 617 F.2d 1371, 1375 (9th Cir.1980). The prejudice cannot be merely speculative; it must be demonstrated by clear and convincing evidence. Id. The harm in this case is clearly demonstrated. The district court explicitly relied on the government's expert testimony to estimate a drug quantity of 600 grams, including 500 grams from the Twilight location. Based on that quantity and a downward adjustment of one level to account for any margin of error, the court assigned Chase a base offense level of thirty. With a three-level adjustment for Chase's acceptance of responsibility, this resulted in a level of twenty-seven, and, under criminal history category II, Chase received a Guidelines range of seventy-eight to ninety-seven months for the drug charges. U.S.S.G. ch. 5 Pt. A. The court adopted the Guidelines recommendation and sentenced Chase to seventy-eight months of imprisonment (not including the sentence for the gun charge). Chase argued at his sentencing hearing that a more plausible estimate of his production at the Twilight location was forty grams of methamphetamine. Had Chase been permitted to retain an expert who provided testimony substantiating this estimate, and had the district court credited that testimony, Chase's responsibility would have fallen within the range of fifty to 200 grams (forty grams from the Twilight location plus 109 from the Mount Avenue location), producing a base offense level of twenty-six. U.S.S.G. § 2D1.1(c)(7). Given Chase's acceptance of responsibility, Chase would have had an offense level of twenty-three. In contrast to the seventy-eight months of imprisonment assigned, the sentencing range for an offense level of twenty-three is fifty-one to sixty-three months. U.S.S.G. ch. 5 Pt. A. Even if the judge had sentenced Chase to the maximum time within the Guidelines for level twenty-three, the sentence would have been sixty-three months. The assigned prison term exceeds this amount by over a year. [A]ny amount of actual jail time has . . . significance. Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001). Therefore, Chase has demonstrated prejudice. For the foregoing reasons, the district court abused its discretion in denying Chase an opportunity to retain an expert, and Chase was prejudiced by this error.

Did the District Court Err in Denying Chase's Request for a Forensic Expert?

23 Finally, we also affirm the district court's calculation of the deficit. Our comparison of the court's findings with the record does not leave us with the 'definite and firm conviction that a mistake has been committed.' See Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 752 (9th Cir.1982) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). We agree with the district court that the parties must take sufficient steps to provide a more accurate count of the treaty and nontreaty catch. 24 AFFIRMED.

the deficit

15 Defendants argue that the district court erred by permitting the prosecution to elicit testimony from seven of its witnesses concerning their prior convictions and guilty pleas for the purpose of exposing defendants to the impermissible inference of guilt by association. Rule 103 of the Federal Rules of Evidence requires that all objections to the admission of evidence must be stated specifically. '[A] specific objection made on the wrong grounds and overruled precludes a party from raising a specific objection on other, tenable grounds on appeal.' J. Weinstein & M. Berger, 1 Weinstein's Evidence p103, at 103-25-103-26 (1986); see also United States v. Mendez-Ortiz, 810 F.2d 76, 78 (6th Cir. 1986), cert. denied, 107 S. Ct. 1384 (1987). Because defendants did not assert in the district court the specific ground for objection they now urge on appeal, we must consider defendants' argument under the plain error standard of review. See Mendez-Ortiz, 810 F.2d at 78; Helminski v. Ayerst Laboratories, 766 F.2d 208, 211 (6th Cir.), cert. denied, 106 S. Ct. 386 (1985). '[T]he plain error doctrine is to be used sparingly. . . . only in exceptional circumstances, . . . and solely to avoid a miscarriage of justice. . . . Recourse may be had to the doctrine 'only on appeal from a trial infected with error so 'plain' the trial judge and prosecutor were derelict in countenancing it. United States v. Hook, 781 F.2d 1166, 1172 (6th Cir.) (quoting United States v. Frady, 456 U.S. 152, 163 (1982)) (citations omitted), cert. denied, 107 S. Ct. 269 (1986); see also Mendez-Ortiz, 810 F.2d at 78. 16 The prosecutor impeached the credibility of Lykins, Isaac, Pickett, Oney, and Porter by eliciting testimony that they had previously been convicted of felonies. Rule 607 of the Federal Rules of Evidence provides that '[t]he credibility of a witness may be attacked by any party, including the party calling the witness.' The prosecution's 'questioning of its own witnesses concerning prior felony convictions is admissible to enable the jury to weigh the credibility of the witnesses.' United States v. Bileck, 776 F.2d 195, 197 (7th Cir. 1985). The prosecution does not hold out [its] witness[es] as worthy of belief, and its 'candor . . . in eliciting the fact that a witness has a felony conviction is to let the jury know precisely the kind of witness [it] is relying on.' Belick, 776 F.2d at 197-98 (quoting Advisory Committee Notes on Rule 607). 17 'Rule 607 may not, however, be used 'for the purpose of introducing irrelevant evidence or of establishing the defendant's guilt by association with the witness. United States v. Townsend, 796 F.2d 158, 162 (6th Cir. 1986) (quoting United States v. Gorny, 732 F.2d 597, 604 (7th Cir. 1984)). The prosecution's conduct must be carefully scrutinized to ensure that a witness is not called merely for the purpose of introducing this sort of improper evidence. Gorny, 732 F.2d at 604. Our review of the record in the present case shows that the testimony of these five witnesses was extremely important and that the prosecution impeached their credibility because of their hostility and failure to be forthcoming. Thus, the district court's failure to exclude the testimony does not rise to the level of plain error. 18 The prosecution also elicited the testimony of Taylor and Labanz that they had previously pleaded guilty to felony charges for the purpose of informing the jury of the circumstances under which they appeared as witnesses. While the guilty plea of a compatriot may not be considered as substantive evidence of the defendant's guilt, the guilty plea 'may properly be considered as evidence of a witness' credibility. . . . '[U]nder proper instruction, evidence of a guilty plea may be elicited by the prosecutor on direct examination so that the jury may assess the credibility of the witnesses the government asks them to believe. United States v. Christian, 786 F.2d 203, 214 (6th Cir. 1986) (quoting United States v. Halbert, 640 F.2d 1000, 1004 (9th Cir. 1981)) (citation omitted); see also Townsend, 796 F.2d at 162. The district court in the present case instructed the jury that 'the fact that an accomplice has entered a guilty plea to the offense charged is not evidence, in and of itself, of guilt or innocence-of the guilt of any other person.' Thus, the district court's failure to exclude the testimony does not rise to the level of plain error. 19 Defendants further argue that the district court erred by failing to instruct the jury that the testimony of the witnesses concerning their prior convictions should not be considered in assessing the guilt or innocence of defendants. While defendants twice asked the district court to instruct the jury that a prior conviction is a factor to be considered in assessing witness credibility and that a witness' prior conviction should not be considered in assessing the guilt or innocence of defendants, defendants made no objection when the district court twice gave only the initial portion of the requested instruction. Defendants' requests alone were not sufficient to preserve their objection to the limiting instruction. 'If counsel requests a limiting instruction, but is dissatisfied with the one given, he must then make an objection to the instruction that is timely and specific.' 21 C. Wright & K. Graham, Federal Practice and Procedure Sec. 5065, at 325 (1977); see also United States v. Dozier, 672 F.2d 531, 543 (5th Cir.), cert. denied, 459 U.S. 943 (1982). Defendants made no timely and specific objections, and we do not consider the district court's failure to give the requested instruction in its entirety plain error. The evidence of defendants' guilt was overwhelming, and the instruction given by the district court was sufficient to minimize any possible unfair prejudice to defendants.

Prior Convictions and Guilty Pleas

Nattah brings a number of claims against L-3. The district court granted L-3's motion to dismiss all of them. Nattah, 541 F.Supp.2d at 233. We review the district court's dismissal for failure to state a claim de novo. See Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1108 (D.C.Cir.2008). Addressing only the claims Nattah raises on appeal, and accepting as true all factual allegations contained in his complaint, see id., we conclude Nattah's breach of contract claim is sufficient. Nattah contends he entered into an oral contract with L-3 at a career fair. First Am. Compl. ¶¶ 92-96, 281-84. He alleges agents of L-3 outlined the terms of employment and promised: (1) he would be provided certain benefits, including air-conditioned housing; (2) he would be required to work only in Kuwait; (3) he would not be sent to work in a war zone, including Iraq; and (4) he could be fired only for misconduct, lack of work due to termination or dimunition of L-3's contract with the U.S. government, or dereliction of duty. Id. ¶¶ 22, 95. He alleges L-3 subsequently breached the contract by failing to provide him the fringe benefits promised under the contract and by selling him to the U.S. military for service in Iraq. Id. ¶¶ 291-92. On appeal, L-3 argues Nattah makes contradictory allegations because he alleges he had an oral contract with L-3, yet he specifically states he signed an employment contract. L-3 Br. at 33-35. In the alternative, L3 argues Nattah's pleadings are not sufficient to state a breach of contract claim under Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868, since he does not name which individuals made the alleged oral contract or establish they had authority to contract on behalf of L-3. L-3 Br. at 36-37. The district court concluded Nattah could not rely on the alleged oral contract. Nattah, 541 F.Supp.2d at 236. As an initial matter, the fact Nattah signed an offer letter from L-3 is not necessarily inconsistent with the existence of an oral contract. To be sure, the alleged oral contract between Nattah and L-3 may be contradicted by the offer letter to the extent Nattah was promised orally he could be terminated only for cause since the offer letter describes the relationship between L-3 and Nattah as voluntary. (J.A. 62). The offer letter, however, is silent as to the benefits Nattah alleges L-3 promised him (such as housing and meals), and, although Nattah did refer to the letter as a contract at least once in his amended complaint, First Am. Compl. ¶ 97, he also correctly acknowledged the letter explicitly stated it did not constitute either an express or implied contract. Id. ¶¶ 23, 283; (J.A. 62). Moreover, contrary to the argument of L-3's counsel, an at-will employer does not possess a unilateral right to retroactively reduce or revoke contractually agreed-upon benefits that have already vested. See 19 RICHARD A. LORD, WILLISTON ON CONTRACTS § 54:36 (4th ed.2010) (at-will employer may not retroactively deprive employee of vested rights, including employee benefits); see also Progress Printing Co., Inc. v. Nichols, 244 Va. 337, 421 S.E.2d 428, 430 (Va.1992) ([T]he [at-will] employer retains the right to alter [employment and benefit] policies at any time, although rights which have already vested in the employee are enforceable for the period of time during which those rights existed.). Modification of an at-will employment contract does not extinguish either the employee's original contract or his right to sue for its breach. See WILLISTON § 54.36. Thus, even assuming Nattah was an at-will employee, L-3 might nonetheless be obligated to provide promised benefits. Second, we conclude Nattah's amended complaint sufficiently describes his claim. Nattah alleges [a]gents of defendant [L-3] conveyed to him the terms of the oral contract, which included luxury apartment accommodations in Kuwait and assurances he would not be sent to Iraq. First Am. Compl. ¶¶ 93-94. L-3 attempts to use Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929, and Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868, to enunciate a blanket rule that requires a plaintiff to plead every conceivable fact or face dismissal of his claim. L-3 Br. at 37. L-3, however, points to no language in Twombly or Iqbal requiring a plaintiff to identify by name which employee(s) made the agreement when pleading a breach of contract claim. See Iqbal, 129 S.Ct. at 1949 (stating Rule 8 . . . does not require `detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955)). Moreover, Nattah alleges with specificity the several terms of the oral contract and how L-3 breached those terms. Am. Compl. ¶¶ 92-103. Accordingly, we conclude Nattah's complaint states a claim against L-3 for breach of its oral contract with Nattah.

Nattah's breach of contract claim against L-3

In July 1999, Construction Drilling commenced an action in the District Court of New Jersey (“the New Jersey Court”) against members of the Chusid family, including Boris Chusid, and companies owned by the family (“the New Jersey Action”). The basis of the complaint is that the Chusid family used sham corporations in order to steal money from Construction Drilling. Specifically, the Chusids created a “bank” in which Construction Drilling “deposited” money, only to have it diverted though other sham corporations for the family’s benefit. The New Jersey Court immediately granted a motion to freeze the family’s assets and to attach certain commercial and residential properties located in New Jersey. In December 2000, Construction Drilling filed a motion for summary judgment on its claims, 3 which was opposed by the Chusids. The New Jersey Court denied Construction Drilling’s summary judgment motion against Chusid, except as to an unjust enrichment claim, for which Construction Drilling was awarded over $350,000 (jointly and severally against all defendants). The New Jersey Court issued a lengthy opinion detailing the open factual questions that mandated the denial of summary judgment on most claims.

The New Jersey Action

83 Linan-Faye's final contention is that HACC is precluded from refusing to pay compensation by reason of principles of equitable and judicial estoppel. Linan-Faye argues that HACC could have terminated for convenience in 1988 but that it did not, and it breached a duty of fairness by waiting two years before deciding to terminate. Linan-Faye relies on a single case, M. & O. Disposal Co. v. Township of Middletown, 100 N.J.Super. 558, 242 A.2d 841 (A.D.1967), aff'd, 52 N.J. 6, 242 A.2d 841 (1968), to support its equitable estoppel argument. Additionally, Linan-Faye argues that because HACC asserted in prior judicial proceedings that there would be a defined measure of damages under the termination for convenience clause, HACC is now judicially estopped from arguing that it owes Linan-Faye nothing. 84 We find Linan-Faye's equitable estoppel claim unpersuasive. HACC could have terminated for convenience in 1988, but it also could have pursued completion of the contract according to its terms. HACC's decision to terminate after an inability to agree to such terms does not breach a duty of fairness. Indeed, this termination was within HACC's rights under the contract and, as explained above, the constructive termination for convenience doctrine allows HACC to convert its original termination into a termination for convenience. 85 Moreover, Linan-Faye's reliance on M. & O. Disposal is misplaced. That case involved the question of whether a municipality impliedly ratified a contract for extra work which was outside the scope of contract to dispose of garbage. Id., 100 N.J.Super. at 560, 567, 242 A.2d at 841, 846. In that case, the New Jersey court merely stated the general precept that equitable principles of estoppel will be applied against municipalities where the interests of justice, morality, or common fairness clearly dictate this course. Id. at 567, 242 A.2d at 846. Beyond the obvious fact that the timing problem presented here has almost nothing to do with the ratification issue presented in M. & O. Disposal, Linan-Faye has failed to demonstrate how HACC's exercise of its rights under this contract violates principles of justice, morality, or common fairness. Thus, we find Linan-Faye's equitable estoppel argument unconvincing. 86 Linan-Faye's argument for judicial estoppel is also unpersuasive. Judicial estoppel precludes a party from assuming a position in a legal proceeding inconsistent with one previously asserted to the prejudice of an adverse party. Brown v. Allied Plumbing & Heating Co., 129 N.J.L. 442, 446, 30 A.2d 290, 292 (Sup.Ct.), aff'd 130 N.J.L. 487, 33 A.2d 813 (E. & A.1943); Chattin v. Cape May Greene, Inc., 243 N.J.Super. 590, 620, 581 A.2d 91, 107 (A.D.1990) (citations omitted), aff'd, 124 N.J. 520, 591 A.2d 943 (1991). There is no inconsistency in taking the position that HACC took in prior proceedings. HACC merely argued that the termination for convenience clause provided the defined measure of damages. After the district court decided the difficult question of whether the termination for convenience clause defines the measure of damages, it was not only appropriate, but necessary, for HACC to address the question of what the measure of damages is under that clause. At this later stage, HACC may contend that this clause provides no compensation for Linan-Faye in this instance. The attempt by Linan-Faye to describe a contradiction in HACC's legal position has no force under the facts presented in this case.

estoppel claims

We review district court rulings on the admission of expert testimony for abuse of discretion. Moore v. Ashland Chemical, Inc., 151 F.3d 269, 274 (5th Cir.1998)(en banc). 1) Expert witness for the Wrights The district judge excluded certain testimony from the Wrights' primary expert witness, Dr. Geoffrey Mahon, who was brought to testify that had the Expedition been equipped with the reverse sensing system, it would have more likely than not prevented the accident that claimed the life of Cade Wright. Specifically, the district judge excluded from evidence sanity testing [11] conducted for Mahon by The Irwin Company, an accident reconstruction company, that attempted to show that an Expedition equipped with the reverse sensing system would have detected Cade Wright and alerted Robin McCutcheon to his presence in her vehicle's blind spot. To conduct this test, Irwin located a person who owned an Expedition equipped with the reverse sensing system, traveled to their home with his three-year-old nephew, and tested the system by placing his nephew in various positions behind the Expedition to test its response. As a result of the exclusion of Irwin's tests, Mahon was not allowed to testify about the results of the tests or its role in shaping his expert opinion. According to the Wrights, this allowed Ford's attorneys to cross-examine Mahon aggressively concerning his lack of testing conducted by him personally supporting his theory that the reverse sensing system was capable of detecting a three-year-old child, creating the impression for the jury that his theory was without basis and easily disregarded. The Wrights have not provided us with a record upon which we may determine whether or not the exclusion of Irwin's tests was an abuse of discretion. Our past decisions have clearly indicated that `excluded evidence is sufficiently preserved for review when the trial court has been informed as to what counsel intends to show by the evidence and why it should be admitted, and this court has a record upon which we may adequately examine the propriety and harmfulness of the ruling.' Dell Computer Corp. v. Rodriguez, 390 F.3d 377, 387 (5th Cir.2004) (emphasis added) (quoting United States v. Jimenez, 256 F.3d 330, 343 (5th Cir.2001) (noting that [t]he latter rule has particular force when the trial court makes clear that it does not wish to hear further argument on the issue.)). The Wrights failed to include in the record to this court any documentary evidence of the tests. Irwin made no written notations of the results of his tests and reported the results of the sanity testing to Mahon over the telephone in an unrecorded conversation. The only documentation of the tests consists of a series of photographs and a home video with such poor sound quality that wind noise apparently blocked the sound of the sensors alerting to detection of objects (and a child) placed in the vehicle's blind spot. Furthermore, even if the sensors could be heard in the video, it appears that the position of the camera made it impossible to gauge distances. Alas, none of this documentary evidence was included in the appellate record for us to review ourselves to adequately examine the propriety of the trial court's ruling. The manner in which the tests were performed, as disclosed in the video documentation of the testing, which was before the district judge but has not been included in the record on appeal, left the district judge so incredulous as to state, I think my daughter's high school science fair projects are more scientific than this. . . . Indeed, after viewing the video documentation of the test, the district judge described it by saying, for example: to say I wasn't impressed is an understatement; It wasn't at all the quality experiment that I would expect; it just didn't seem to pass the scientific smell test to me; my children and I could have done this test and we could have made it look better . . . my husband could do better; the video is, in my estimate, an embarrassment to the scientific community . . . not scientific at all . . . totally unscientific; and, finally, That's not a scientific piece of documentation, in my opinion. Nothing in the record before us allows us to conclude that the district court abused its discretion in excluding the results of this testing or opinions based thereon. We affirm the district court's exclusion of Irwin's sanity testing. 2) Expert witness for Ford Ford retained expert witness Dr. Michelle Vogler to testify regarding the relative safety of the McCutcheon's 2001 Expedition in order to contest the Wrights' claims that the Expedition was unreasonably dangerous when not equipped with a reverse sensing system. The Wrights argue that the district court erred by allowing Vogler to testify regarding the blind spots of vehicles not substantially similar to the McCutcheon's Expedition, including vehicles manufactured after the vehicle in question. The Wrights contend this testimony was unfairly prejudicial and harmful, and comparing the blind spot of the McCutcheon's 2001 Expedition to those of cars manufactured in 2004 gave the jury the improper and erroneous evidence that the 2001 Expedition compared favorably with other vehicles manufactured in 2001. Vogler testified that the 2001 Expedition's rear blind spot was not unusually large when compared to many passenger cars, sold in 2001 and after. The point of the expert testimony was to present evidence that countered the Wrights' conclusory allegations that the 2001 Expedition's blind spot was unreasonably dangerous due to being unusually large. We see no abuse of discretion in the district judge's admission of this testimony, and we accordingly reject appellants' complaint in this respect.

Expert Testimony Rulings

47 Appellees seek dismissal of this appeal due to lack of jurisdiction, asserting that there is no case or controversy within the meaning of Article III, § 2, of the United States Constitution. This argument was neither raised before nor addressed by the District Court, but was noted in the City's answer to Appellants' complaint. Appellees' first motion to dismiss was filed prior to the November 8, 1994, election. 48 Appellees advance two bases for this Court's lack of jurisdiction. First, they argue that the controversy was not ripe for adjudication on the date the complaint was filed. Second, they contend that Appellants Mango and Bennett lack standing to bring the claims raised in their complaint. 49 A. Appellants' Claims are Ripe for Adjudication. 50 The City contends that Appellants' complaint was not ripe for judicial review at the time it was filed. The complaint was filed on February 11, 1994; as of that date, the merger commission had not yet submitted conditions of merger to the board of elections. If the commission had failed to submit conditions to the board by August 25, 1994, the merger proposal would not have appeared on the November 8, 1994, ballot. The City thus concludes that Appellants could assert no infringement of their voting rights as of February 11, 1994, because they were not yet assured of an opportunity to vote on a merger. 51 Alternatively, based on its interpretation of Appellants' injury as the actual imposition of a ten-fold utility rate increase, the City argues that Appellants' complaint was not ripe even after the commission filed its conditions. Noting that the contract provisions calling for ten-fold rate increases would only apply upon merger, the City reasons that the mere presence of a merger proposal on the ballot does not ensure that merger will occur. Under this view of Appellants' injury, therefore, Appellants' claims are not ripe until a merger proposal actually is approved by the voters. 52 Although standing and ripeness are considered separate issues, in practice they involve overlapping inquiries. If no injury has occurred, the plaintiff could be denied standing or the case could be dismissed as not ripe. The question whether an alleged injury is sufficient to meet the constitutional case or controversy requirement is at the heart of both doctrines. The ripeness doctrine generally applies in cases such as this one, in which a party seeks a declaratory judgment based on pre-enforcement review of a statute or regulation, or, as in this case, of contract provisions. As this Court stated in an earlier case: 53 In declaratory judgment actions it is often difficult to draw a line between actual controversies and attempts to obtain advisory opinions on the basis of hypothetical controversies. Writing for a unanimous Supreme Court in Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), Justice Brennan adopted the following test: 54 The difference between an abstract question and a 'controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. 55 Id. at 108, 89 S.Ct. at 959 (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941)). 56 Michigan State Chamber of Commerce v. Austin, 788 F.2d 1178, 1181 (6th Cir.1986). The Supreme Court also has stated that its determination whether a case is ripe focuses on two considerations: the hardship to the parties of withholding court consideration and the fitness of the issues for judicial decision. Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967); see also Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 201, 103 S.Ct. 1713, 1720, 75 L.Ed.2d 752 (1983). 57 The Supreme Court typically has found hardship when enforcement of a statute or regulation is inevitable and the sole impediment to ripeness is simply a delay before the proceedings commence. For example, in Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 139-45, 95 S.Ct. 335, 356-59, 42 L.Ed.2d 320 (1974), the Court deemed ripe an action brought by eight major railroads challenging the conveyance of their property to Conrail. Although a reorganization plan had not yet been formulated and a special court had not yet ordered the conveyances, the Court reasoned that [w]here the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect. 419 U.S. at 143, 95 S.Ct. at 358. Similarly, in Buckley v. Valeo, 424 U.S. 1, 113-18, 96 S.Ct. 612, 680-82, 46 L.Ed.2d 659 (1976), the plaintiffs were allowed to challenge the method of appointing members of the Federal Election Commission in anticipation of impending future rulings and determinations by the Commission. 58 If we accept Appellants' characterization of their injury as denial of a meaningful vote, 1 the City's second argument against ripeness--i.e., that Appellants suffer no injury until merger is approved--is obviously without merit. Appellants contend that the City has improperly skewed the electorate's decision on the merger issue by contractually imposing a financial penalty on merger. Thus, it is the threat of economic hardship to Appellants and their fellow voters, rather than the actual imposition of higher utility rates, that allegedly skews their voting decisions. Accordingly, if and when rates increase, the harm about which Appellants complain will already have taken place. 59 The City's first argument--i.e., that the complaint was not ripe at the time it was filed--presents a closer question. At the time of filing, it was indeed possible that the merger commission might not have submitted conditions of merger to the board of elections in a timely manner. If so, there would have been no election to skew. However, the voters had elected a commission. Moreover, given the fact that the commission members, almost by definition, were all in favor of merger, it was highly probable that they would complete their task and file conditions of merger. Finally, if Appellants had waited until after the commission reached agreement to file their lawsuit, they might have had as few as 75 days to convince the courts to intervene. This short time period would have virtually assured completion of the election process prior to a court ruling. 2 60 Another panel of this Court was presented with a similar problem in Michigan State Chamber of Commerce v. Austin, 788 F.2d 1178 (6th Cir.1986). In that case, the Michigan State Chamber of Commerce and three large investor-owned public utilities challenged a Michigan law that restricted the amount of money corporations could contribute to a ballot question committee, a group that advocates either passage or defeat of a ballot proposal or constitutional amendment under consideration in a general election. 788 F.2d at 1179. The utilities anticipated that ballot issues to which they were opposed would be placed on the ballot in the near future, but at the time of their lawsuit no such issues had been approved for any pending general election. 788 F.2d at 1179. 61 State law permitted ballot proposals to be certified as few as forty-nine days prior to an election. 788 F.2d at 1183 (citing Mich.Comp.Laws Ann. § 168.480). Given this brief period of time between certification and election, the plaintiffs argued that they could not possibly bring an action after certification and still obtain injunctive relief prior to the election. 788 F.2d at 1179. The defendant responded that the action was not ripe because the plaintiffs had failed to allege and specifically identify any particular question which [would] be appearing on the ballot in the future. 788 F.2d at 1179. The district court dismissed the case as not ripe. 788 F.2d at 1181. 62 The Sixth Circuit reversed, reasoning as follows: 63 Though [First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) ] dealt primarily with mootness, there is implicit in that decision a holding that ripeness does not require the immediacy imposed by the district court in this case. The Bellotti Court made clear that a plaintiff seeking to express its views on a ballot proposal must have a reasonable time before the election date in which to wage its campaign. 435 U.S. at 774, 98 S.Ct. at 1414. In Bellotti the time between legislative authorization of the proposal and submission to the voters was approximately 18 months. This proved too short a period of time for appellants to obtain complete judicial review, and there is every reason to believe that any future suit would take at least as long. Id. 64

appellees' first motion to dismiss: ripeness and standing

6 The district court indicated that it denied the November 3, 1978, motion primarily because the issue of the effect of the double jeopardy clause upon further prosecution of Ajimura had already been fully litigated. 1 Although the notice of appeal was filed immediately after this order, the parties dispute the subject matter here on appeal. Ajimura contends that this court may appropriately address the district court's denial of his double jeopardy claim on the merits. The Government, however, claims that the only issue upon appeal is whether res judicata barred further consideration of the double jeopardy claim by the district court. 7 We agree with the Government. Federal Rule of Appellate Procedure 4(b) specifies that an appeal by a criminal defendant must be taken within ten days of the entry of the judgment or order appealed from, unless the district court allows an additional thirty days. Thus, because the district court's orders of March 16, 1978, and June 1, 1978, were entered more than ten days prior to the date of the notice of appeal, an appeal as to those two orders was not timely filed. We thus may not review those orders. See United States v. Stolarz, 547 F.2d 108, 109-10 (9th Cir. 1976), Cert. denied, 434 U.S. 851, 98 S.Ct. 162, 54 L.Ed.2d 119 (1977); Smith v. United States, 425 F.2d 173, 174 (9th Cir. 1970). 8 It is true that many interlocutory orders cannot be appealed at the time of entry of the order. Instead they are reviewed as a part of an appeal from a later, appealable order. See United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971); DiBella v. United States, 369 U.S. 121, 129, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962); Howfield, Inc. v. United States, 409 F.2d 694, 696-97 (9th Cir. 1969); 18 U.S.C. § 3731; 28 U.S.C. § 1291. 9 An order denying a motion to bar retrial because of the double jeopardy clause is immediately appealable. In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), decided over nine months before the district court's order of March 16, 1978, the Supreme Court held that pretrial orders rejecting claims of former jeopardy . . . constitute 'final decisions' and thus satisfy the jurisdictional prerequisites of § 1291. Id. at 662, 97 S.Ct. at 2042. Thus, Ajimura could have appealed immediately from the district court's order of March 16, 1978. 10 The time limits of Rule 4(b) prevent undue delay in the administration of justice and provide finality of orders and judgments, and thus must be carefully respected. See Stolarz, 547 F.2d at 109-10; Smith,425 F.2d at 174; Advisory Committee Notes to Fed.R.App.P. 3, Reprinted in 28 U.S.C.A.Fed.R.App.P. at 8; 9 Moore's Federal Practice P 204.02(1) (1975); 16 C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure § 3950 (1977). Had Ajimura complied with the ten-day time limit of Rule 4(b), his appeal from the March 16 order would have been taken in March of 1978. But he now urges us to address the substance of the March 16 order even though he did not file his notice of appeal for almost seven months. For us to consider the effect of the double jeopardy clause upon Ajimura's retrial would thus eviscerate Rule 4(b); this we may not do. Whether we agree with the Seventh Circuit that denial of a double jeopardy claim may be reviewed on appeal from a judgment of conviction, See United States v. Gaertner, 583 F.2d 308 (7th Cir. 1978), is not now before us. 11 We conclude that upon this appeal we may review only the matters decided by the district court's order of November 3, 1978.

Subject Matter of the Instant Appeal

14 The first question we must address is whether the initial seizure of the vehicle was supported by probable cause. The government bears the burden of proof to justify warrantless searches and seizures. See United States v. Maestas, 2 F.3d 1485, 1491 (10th Cir. 1993). The standard of proof imposed upon the party who carries the burden, in this case the government, is a preponderance of evidence. See United States v. Matlock, 415 U.S. 164, 177 (1974). 15 Stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the detention is brief. See United States v. Gregory, 79 F.3d 973, 977 (10th Cir. 1996); see also Delaware v. Prouse, 440 U.S. 648, 653 (1979). Therefore, the stop is 'subject to the constitutional imperative that it not be unreasonable under the circumstances.' United States v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir. 1999) (quoting Whren v. United States, 517 U.S. 806, 810 (1996)). A traffic stop is reasonable under the Fourth Amendment if the officer has either (1) probable cause to believe a traffic violation has occurred, or (2) a reasonable articulable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction. Ozbirn, 189 F.3d at 1197 (quotation marks and citations omitted). 16 Here, Officer Heim testified that he saw the vehicle drift approximately two feet over the dividing line into the left lane of northbound traffic, which he considered a violation of Kansas law. 3 See Kan. Stat. Ann. § 8-1522. The Kansas statute states that [w]henever any roadway has been divided into two (2) or more clearly marked lanes for traffic, . . . [a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety. See id. Although the videotape submitted by the government does not show the vehicle crossing over the dividing line between the two northbound lanes of traffic, it does show that Galindo-Diaz tended to drive on the left side of the lane and that his tires were at least close to touching the dividing line in the first few frames. This is consistent with Officer Heim's testimony that he activated the video recorder only after observing the traffic violation, and experienced a slight delay before the videotape began to record, and thus that the videotape is not a comprehensive record of the traffic violation. More important to our analysis, the district court specifically found that Officer Heim's testimony was credible as to the purpose of the traffic stop, which necessarily involved its crediting Officer Heim's relation of events while simultaneously discounting Galindo-Diaz's testimony that he did not believe he crossed the white dividing line. 17 We see no reason to question the credibility determinations of the district court. We therefore find that Officer Heim had probable cause to believe that a traffic violation had occurred once he saw the vehicle cross over into the left lane of northbound traffic. 4 18 B. The questioning of Appellant and Galindo-Diaz was reasonably related to the purposes of the stop 19 This court has stated that an officer conducting a traffic stop may request vehicle registration and a driver's license, run a computer check, ask about travel plans and vehicle ownership, and issue a citation. See United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998); United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir. 1989). After the officer has issued the citation, however, the driver must be allowed to proceed on his way, without being subject to further delay by police if he has produced a valid license and proof that he is entitled to operate the car. See United States v. Lee, 73 F.3d 1034, 1039 (10th Cir. 1996). An officer who is presented with the requisite information may nevertheless detain a suspect for further questioning if the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring or if the suspect consents to additional questions. See United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994). 20 We agree with the district court that Officer Heim's actions between the time of the stop and his request to search the car were reasonable under the circumstances. It is undisputed that Officer Heim was entitled to request vehicle registration and a driver's license from Galindo-Diaz. See Hunnicutt, 135 F.3d at 1349. Despite the fact that he was driving the car, Galindo-Diaz could not produce a valid driver's license, nor any other form of photo identification, when they were requested by Officer Heim. Once it was established that Galindo-Diaz could not provide evidence of his identity or authority to drive the vehicle, Officer Heim was justified in requesting identifying information from Appellant. Cf. United States v. Galindo-Gonzales, 142 F.3d 1217, 1224 (10th Cir. 1998) ([W]e have concluded that officers confronted with a motorist who cannot produce proof of ownership may ask questions about the identity and travel plans of the driver and passengers.). This is not to say that Officer Heim immediately should have been able to question Appellant on matters irrelevant to the scope of the vehicle stop, but only that he was allowed to ask Appellant for his name and the name of the driver, as well as the connection between, and travel plans, of the two men. When Appellant was asked for his name and that of the driver, Galindo-Diaz, Appellant told Officer Heim that Galindo-Diaz was his brother-in-law, but that Appellant did not know his name. Officer Heim then asked Galindo-Diaz for Appellant's name, and Galindo-Diaz stated that he did not know it. To further complicate the men's story, Appellant claimed that he, his wife and Galindo-Diaz had all stayed together the night before at a hotel. Galindo-Diaz, on the other hand, stated that he lived in Kansas City and had stayed at home the night before. Finally, both men demonstrated a reluctance to answer questions that might have been the result of language difficulties, but might also have been an attempt at concealment. 21 Once Officer Heim received these dubious and inconsistent answers to his questions, he developed reasonable, articulable suspicion that the two men might be engaged in criminal activity, thereby justifying their continued detention for further investigation. We have held that implausible or contradictory travel plans can contribute to a reasonable suspicion of illegal activity. See United States v. Kopp, 45 F.3d 1450, 1453-54 (10th Cir. 1995). We have also stated that courts should defer to 'the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions.' United States v. McRae, 81 F.3d 1528, 1534 (10th Cir. 1996) (quoting United States v. Martinez-Cigarroa, 44 F.3d 908, 912 (10th Cir. 1995) (Baldock, J., concurring)). In this case, the contradictions, implausibilities and potentially evasive actions of Appellant and Galindo-Diaz would cause an experienced officer to become suspicious that the men were engaged in criminal activity. 22 We therefore conclude that Officer Heim did not exceed the scope of the traffic stop by detaining Appellant and Galindo-Diaz in order to further investigate potential criminal activity for which he had developed reasonable, articulable suspicion in the course of his questioning. 23 C. The district court correctly concluded that Zubia-Melendez freely and voluntarily consented to the search of his car 24 It is well-established that warrantless searches violate the Fourth Amendment unless they fall within a specific exception to the warrant requirement. See United States v. Karo, 468 U.S. 705, 717 (1984). [T]he government has the burden of proving that an exception to the warrant requirement applies. United States v. Maestas, 2 F.3d 1485, 1491 (10th Cir. 1993); see also United States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998) (holding that the government has the burden of proving voluntary consent to conduct a warrantless search). Consent is one such exception to the warrant requirement, see Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973), and this court has therefore held that a vehicle may be searched if a person in control of the vehicle has given his voluntary consent to the search, see United States v. Santurio, 29 F.3d 550, 552 (10th Cir. 1994). 25 Whether voluntary consent was given is a question of fact, determined by the totality of the circumstances and reviewed for clear error. See United States v. Melendez-Garcia, 28 F.3d 1046, 1054 (10th Cir. 1994). We have utilized a two-part test to make this determination: First, the government must proffer 'clear and positive testimony that consent was unequivocal and specific and freely given.' Furthermore, the government must prove that this consent was given without implied or express duress or coercion. See McRae, 81 F.3d at 1537 (quoting United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir. 1995)). 26 The conversation in which Officer Heim handed Galindo-Diaz the warning ticket and requested consent to search the vehicle occurred off-screen in the videotape, but it appears that the vehicle registration documents were returned to Galindo-Diaz at that time. Officer Heim then approached the Appellant, who was still sitting in the passenger's seat in the vehicle. The officer asked to search the vehicle for drugs and Appellant, who did not speak good English, replied, No, never. The officer then asked again to search the vehicle and Appellant replied Yeah, no matter. 27 We acknowledge that the issue of whether Appellant's consent was freely and voluntarily given is a close one. When he was first asked for consent to search the vehicle, Appellant refused. The fact that Appellant initially told Officer Heim he could not search the car does not, however, render his subsequent consent involuntary, cf. United States v. Flores, 48 F.3d 467, 468-69 (10th Cir. 1995) (holding that the defendant's hesitation before opening the trunk of her car did not make her subsequent consent involuntary), especially because Appellant's consent appears to have come without hesitation when he was asked a second time for permission to search the vehicle. 28 The next question, then, is whether Appellant truly understood Officer Heim's question before giving his consent. We acknowledge that Appellant has trouble speaking and understanding English; the videotape of the traffic stop demonstrates his confusion at several points during the encounter, and he testified at the suppression hearing with the assistance of an interpreter. Appellant admitted at the suppression hearing, however, that he understood the officer's request for his name, identification, and ownership of the vehicle. Indeed, the district court specifically found at the suppression hearing that Appellant and Officer Heim could converse sufficiently to understand one another, both with respect to Mr. Zubia's understanding of what was said to him in English and also what was said by Trooper Heim in the few Spanish words that he used. We do not find the district court's conclusion in this regard to be clearly erroneous, and therefore find that Appellant had sufficient familiarity with the English language to understand and respond to Officer Heim's request. Cf. United States v. Corral, 899 F.2d 991, 994 (10th Cir. 1990) (holding that defendant with limited knowledge of English voluntarily consented because he understood the officer's questions, answered questions in English and demonstrated an overall working knowledge of English). 29 Finally, we find no error in the district court's conclusion that Appellant's consent to the search was not explicitly or implicitly coerced by Officer Heim and was therefore voluntary. Officer Heim neither told Appellant that he was free to leave nor informed him that he could refuse consent, and we have held that both factors should be considered in determining whether consent was voluntary. See Gregory, 79 F.3d at 979. In addition, at the time consent was given, Appellant had been detained for approximately eleven minutes, had been frisked once, and was sitting in the passenger seat of a vehicle that he could not drive away because he had neither keys nor a driver's license. But our review of the videotape of the traffic stop reveals no physical or verbal coercion by Officer Heim. In addition, Appellant's answer, Yeah, no matter, when asked a second time for permission to search the vehicle was given without hesitation, and Appellant did not at any time attempt to stop Officer Heim from continuing his search of the vehicle. 30 In reviewing the totality of the circumstances, we cannot conclude that the district court clearly erred in finding that Appellant's consent to search the vehicle was freely and voluntarily given.

The initial traffic stop was supported by probable cause

“A constitutional challenge to a sentence is a question of law and reviewed de novo.” United States v. Jones, 569 F.3d 569, 573 (6th Cir. 2009). Richardson raises a number of constitutional challenges to his 1,494 month sentence, which is comprised largely by his consecutive mandatory sentences under 18 U.S.C. § 924(c). Section 924(c) establishes mandatory minimum sentences for using or carrying a firearm during and in relation to any crime of violence. In particular, § 924(c)(1)(A) establishes a mandatory minimum sentence of seven years of incarceration for an individual’s first conviction under § 924(c), and § 924(c)(1)(C) establishes a 25 year mandatory minimum sentence “[i]n the case of a second or subsequent conviction under this subsection.” Section 924(c)(1)(D)(ii) further mandates that sentences under § 924(c) must run consecutively with any other terms of imprisonment. Richardson specifically contends that his consecutive mandatory minimum sentences under § 924(c) and (d) violate: (1) separation of powers, (2) the Fifth Amendment right to an individualized sentence, (3) equal protection, and (4) the Eighth Amendment’s prohibition against cruel and unusual punishment. These arguments fail. Richardson first argues that the consecutive mandatory minimum sentences at issue violate the separation of powers doctrine by “stripp[ing] the judiciary of its constitutional and judicial prerogative in sentencing.” Richardson’s Br. at 39. The Supreme Court has recognized that “Congress, of course, has the power to fix the sentence for a federal crime, and the scope of judicial discretion with respect to a sentence is subject to congressional control.” Mistretta v. Nos. 13-2655/2656 United States v. Richardson Page 24 United States, 488 U.S. 361, 364 (1989) (internal citations omitted). We previously denied a separation of powers challenge to a mandatory minimum sentence in United States v. Cecil, noting that we have “‘flatly rejected’ the claim that mandatory minimums unconstitutionally violate separation-of-powers principles.” 615 F.3d 678, 696 (6th Cir. 2010) (quoting United States v. Odeneal, 517 F.3d 406, 414 (6th Cir. 2008)). Richardson recognizes this existing precedent, but “asks this Court to revisit the Cecil holding that rejected the separation of powers argument.” Richardson’s Br. at 40. This panel cannot grant Richardson’s request. As was explained earlier in this opinion, pursuant to Sixth Circuit Rule 32.1(b), “[p]ublished panel opinions are binding on later panels. A published opinion is overruled only by the court en banc.” Richardson next argues that his consecutive mandatory minimum sentences violate his right to individualized sentencing under the Due Process clause of the Fifth Amendment. This argument is also foreclosed by this Circuit’s existing precedent. In Odeneal, we recognized “that there is no constitutional right to individualized sentencing in non-capital cases.” 517 F.3d at 415; see also United States v. Levy, 904 F.2d 1026, 1035 (6th Cir. 1990). As this is a non-capital case, Richardson’s argument is foreclosed by this precedent. Once again, Richardson invites us to reconsider our previous holdings and, once again, we are not empowered to do so. Richardson also argues that his mandatory minimum sentences deprive him of the equal protection of the law. The Supreme Court has acknowledged that the Fifth Amendment contains “an equal protection component” applicable to the federal government. United States v. Hughes, 632 F.3d 956, 960 (6th Cir. 2011) (citing to San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522, 543 n. 21 (1987)). “The analysis of a Fifth Amendment equal protection claim is identical to an equal protection claim under the Fourteenth Amendment.” Id. Where a legislative distinction does not target a suspect class or implicate a fundamental right, it need only have a rational basis to survive an equal protection challenge. LensCrafters, Inc. v. Robinson, 403 F.3d 798, 806 (6th Cir. 2005). Nos. 13-2655/2656 United States v. Richardson Page 25 Richardson claims that the sentence required by 18 U.S.C. § 924(c) impinges on his fundamental right to liberty. However, no such right to liberty exists for a person who has been “justly convicted.” Hughes, 632 F.3d at 962. Accordingly, the challenged mandatory minimum sentences must survive only rational basis review. Of particular concern to Richardson is the sentencing disparity implicit in § 924(c)(1)(C)’s higher mandatory minimum sentence for individuals who have been convicted under § 924(c) for a second or subsequent offense. Richardson argues that this disparity lacks a rational basis. We have previously held that, “[w]here rational basis review governs, we will not strike down a statute on equal protection grounds unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” Johnson v. Bredesen, 624 F.3d 742, 747 (6th Cir. 2010) (internal quotation marks omitted). The government argues that § 924(c) survives rational basis review because the statute’s sentencing discrepancy between first time offenders and repeat offenders can be justified by the legitimate governmental goal of deterring recidivism. See United States v. Raynor, 939 F.2d 191, 194 (4th Cir. 1991) (rejecting a comparable challenge to § 924(c) and recognizing “the clear intent of § 924(c) to deter the use of firearms in the commission of crimes and to increase the cost of committing a second offense”). Richardson has failed to demonstrate that this governmental purpose is illegitimate and that § 924(c) is not rationally related to achieving this purpose. Thus, he has failed to establish that his mandatory minimum sentences under § 924(c) infringe upon his right to equal protection of the law. Finally, Richardson argues that his 1,494 month sentence violates the Eighth Amendment’s ban on cruel and unusual punishment inasmuch as it is “grossly disproportionate” to his criminal conduct. Richardson’s Br. at 42. “The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin v. Michigan, 501 U.S. 957, 1001 (1991). Sentences are not deemed cruel and unusual simply by virtue of being mandatory. United States v. Wimbley, 553 F.3d 455, 463 (6th Cir. 2009). Nos. 13-2655/2656 United States v. Richardson Page 26 We have regularly upheld sentences exceeding 1,494 months for § 924(c) violations related to armed robberies. For example, in United States v. Watkins, we upheld a 1,772 month sentence for a defendant who had been convicted of six § 924(c) violations associated with the commission of robberies. 509 F.3d 277, 283 (6th Cir. 2007). Despite acknowledging that “the Eighth Amendment places an outer limit on criminal penalties that are grossly disproportionate to the offense,” we concluded that due to the “numerosity and seriousness of the offenses, the comparable sentences imposed by this circuit in similar circumstances, and the requirement that sentences for § 924(c) firearms convictions run consecutively to all other sentences, [the defendant’s] sentence [was] not grossly disproportionate to the offenses.” Id. at 283; see also United States v. Clark, 634 F.3d 874, 878 (6th Cir. 2011) (finding that a 2,269 month sentence for six robberies did not violate the Eighth Amendment); United States v. Willis, 232 F. App’x 527, 539 (6th Cir. 2007) (finding that a 1,920 month sentence for seven armed robberies was not cruel and unusual); United States v. Wiley, 132 F. App’x 635, 643 (6th Cir. 2005) (finding that a 3,184 month sentence for eleven armed robberies did not violate the Eighth Amendment); United States v. Marks, 209 F.3d 577, 583 (6th Cir. 2000) (finding that a 2,242 month sentence for nine robberies did not violate the Eighth Amendment). In light of this Circuit’s consistency in upholding similar sentences for § 924(c) convictions in comparable circumstances, Richardson’s 1,494 month sentence cannot be deemed grossly disproportionate and therefore does not constitute an Eighth Amendment violation.

Constitutionality of Richardson’s Sentence

124 Shortly after Apprendi was decided, we held that it did not affect the sentencing guidelines. See United States v. Kinter, 235 F.3d 192, 198-202 (4th Cir. 2000). While we acknowledged that the argument for applying Apprendi to the guidelines was not without support, id. at 200, we ultimately concluded that the claim failed in light of the quintessentially judicial nature of the tasks performed by the Sentencing Commission, see id. at 201 ([T]he Commission's act of establishing sentencing ranges in the Guidelines is categorically different from the legislative act of setting a maximum penalty in a substantive criminal statute.); id. (The Sentencing Guidelines do not create crimes. They merely guide the discretion of district courts in determining sentences within a legislatively-determined range ....). We now re-examine this question in light of Blakely. 125 Blakely did not change — indeed, it reaffirmed — the question we must ask in determining whether application of the federal sentencing guidelines is subject to the rule of Apprendi: When a defendant is to be sentenced pursuant to the guidelines, what is the prescribed statutory maximum? After Apprendi but before Blakely, this and the other circuit courts of appeals had unanimously concluded that the maximum the defendant could receive if punished according to the facts reflected in the jury verdict alone, Apprendi, 530 U.S. at 483, 120 S.Ct. 2348, was the maximum penalty provided in the statute setting forth the offense of conviction (or whatever penalty statute was referenced by the statute setting forth the offense of conviction), not the top of the guideline sentencing range mandated by those facts. See United States v. Reyes-Echevarría, 345 F.3d 1, 6-7 (1st Cir.2003); United States v. Garcia, 240 F.3d 180, 182-84 (2d Cir.2001); United States v. Williams, 235 F.3d 858, 862-63 (3d Cir.2000); United States v. Doggett, 230 F.3d 160, 166 (5th Cir.2000); United States v. Lawrence, 308 F.3d 623, 634-35 (6th Cir.2002); United States v. Knox, 301 F.3d 616, 620 (7th Cir.2002); United States v. Walker, 324 F.3d 1032, 1041 (8th Cir.), cert. denied, ___ U.S. ___, 124 S.Ct. 247, 157 L.Ed.2d 178 (2003); United States v. Ochoa, 311 F.3d 1133, 1135-36 (9th Cir.2002); United States v. Jackson, 240 F.3d 1245, 1249 (10th Cir.2001); United States v. Harris, 244 F.3d 828, 829-30 (11th Cir.2001); United States v. Fields, 251 F.3d 1041, 1043-44 (D.C.Cir.2001). 126 Blakely not only did not change the inquiry we must make, it also adhered to the rule the Court had announced in Apprendi: `Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' Blakely, ___ U.S. at ___, 124 S.Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, and explaining that [t]his case requires us to apply the rule we expressed in Apprendi (emphasis added)). Therefore, in view of the fact that Blakely changed neither the question nor the rule for answering the question, we must determine what it is in Blakely that has prompted some courts to abandon the previously held view that the rule of Apprendi does not affect the guidelines. 127 We think the most likely culprit is the broad language found in parts of Blakely, particularly the following passage: 128 Our precedents make clear ... that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. See Ring, supra, at 602, 122 S.Ct. 2428 (`the maximum he would receive if punished according to the facts reflected in the jury verdict alone' (quoting Apprendi, supra, at 483, 120 S.Ct. 2348)); Harris v. United States, 536 U.S. 545, 563, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (plurality opinion) (same); cf. Apprendi, supra, at 488, 120 S.Ct. 2348 (facts admitted by the defendant). In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, Bishop, supra, § 87, at 55, and the judge exceeds his proper authority. 129 Blakely, ___ U.S. at ___, 124 S.Ct. at 2537 (parallel citations omitted). 130 In light of this language, it is hardly surprising that several courts have held that Blakely signals the demise of the guidelines. See, e.g., Booker, 375 F.3d at 511. Viewing the above-quoted passage alone, and noting the quotation marks surrounding the term statutory maximum, it is not that farfetched to conclude that the Court intended to encompass within its holding any situation in which a binding maximum — whether statutory or not — is increased by virtue of a judicial finding. Indeed, Justices O'Connor and Breyer expressed concern that the decision in Blakely necessarily implied the invalidity of important aspects of the federal guidelines system. See Blakely, ___ U.S. at ___, 124 S.Ct. at 2550 (O'Connor, J., dissenting) (If the Washington scheme does not comport with the Constitution, it is hard to imagine a guidelines scheme that would.); id. at 2561 (Breyer, J., dissenting) (Until now, I would have thought the Court might have limited Apprendi so that its underlying principle would not undo sentencing reform efforts. Today's case dispels that illusion.... Perhaps the Court will distinguish the Federal Sentencing Guidelines, but I am uncertain how.). 131 We think that those courts which have held that the Blakely Court redefined the term statutory maximum, see Booker, 375 F.3d at 514, have failed to account for the factual and legal context in which Blakely was decided. Under Apprendi, a jury verdict or plea of guilty authorizes the sentencing judge to impose a sentence up to the legislatively prescribed maximum specified in the statute that sets forth the offense of conviction. See Apprendi, 530 U.S. at 482, 120 S.Ct. 2348 (noting that the judge's task in sentencing is to determine, within fixed statutory or constitutional limits, the type and extent of punishment after the issue of guilt has been resolved (alteration & internal quotation marks omitted)). Blakely required the Court to apply this principle to a sentencing scheme involving two legislatively prescribed statutory maximum penalties. See Blakely, ___ U.S. at ___, 124 S.Ct. at 2537 (describing the top of the sentencing range under the Washington State Sentencing Reform Act as a statutory maximum); Booker, 375 F.3d at 518 (Easterbrook, Circuit Judge, dissenting) ( Blakely arose from a need to designate one of two statutes as the `statutory maximum'.). 132 This understanding of Blakely is consistent with Apprendi, in which the Court repeatedly used language indicating that jury protections come into play when legislatively prescribed penalties are at issue. 16 See Apprendi, 530 U.S. at 481, 120 S.Ct. 2348 (noting history of judicial discretion to sentence within the range prescribed by statute (emphasis omitted)); id. (observing that our periodic recognition of judges' broad discretion in sentencing ... has been regularly accompanied by the qualification that that discretion was bound by the range of sentencing options prescribed by the legislature (emphasis added)); id. at 484, 120 S.Ct. 2348 (noting heightened stigma that attaches when a defendant faces punishment beyond that provided by statute (emphasis added)); id. at 487 n. 13, 120 S.Ct. 2348 (limiting McMillan to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury's verdict (emphasis added)); id. at 490, 120 S.Ct. 2348 (Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (emphasis added)). There is no reason to believe that this explicit linking of Sixth Amendment rights to legislatively prescribed penalties was ill-considered or accidental. Cf. Booker, 375 F.3d at 518 (Easterbrook, Circuit Judge, dissenting) (Why did the Justices deploy that phrase [`statutory maximum'] in Apprendi and repeat it in Blakely (and quite a few other decisions)? Just to get a chuckle at the expense of other judges who took them seriously and thought that `statutory maximum' might have something to do with statutes? Why write `statutory maximum' if you mean `all circumstances that go into ascertaining the proper sentence'?). 133 Our understanding of Blakely also comports with the prior guidelines decisions of the Supreme Court. The Court has upheld guidelines sentencing against every constitutional challenge thus far brought before it; a holding that Blakely renders important aspects of guidelines sentencing unconstitutional would undermine, if not outright nullify, several of these decisions. 17 134 We begin with Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), in which the Supreme Court upheld the constitutionality of the guidelines against nondelegation and separation of powers challenges. Characterizing the guidelines as Congress' considered scheme for resolving the seemingly intractable dilemma of excessive disparity in criminal sentencing, id. at 384, 109 S.Ct. 647, the Court concluded that Congress' establishment of the Sentencing Commission did not violate separation of powers principles, see id. at 380-411, 109 S.Ct. 647. Of particular relevance here, the Court noted that 135 Although the Guidelines are intended to have substantive effects on public behavior..., they do not bind or regulate the primary conduct of the public or vest in the Judicial Branch the legislative responsibility for establishing minimum and maximum penalties for every crime. They do no more than fetter the discretion of sentencing judges to do what they have done for generations — impose sentences within the broad limits established by Congress. 136 Id. at 396, 109 S.Ct. 647 (emphasis added). Mistretta thus makes clear that the guidelines do collectively what federal district judges previously did individually — select a sentence within the range of penalties specified by Congress. See Kinter, 235 F.3d at 201 ([T]he Commission's act of establishing sentencing ranges in the Guidelines is categorically different from the legislative act of setting a maximum penalty in a substantive criminal statute.). 137 In short, the Mistretta Court rejected a constitutional challenge to the guidelines on the basis that the Sentencing Commission performs not a legislative function, but a judicial one. Application of Blakely to the guidelines, however, necessarily would require a conclusion that the Sentencing Commission performs not a judicial function, but a legislative one. This is so because Blakely applies to the guidelines only if the Blakely Court redefined the term statutory maximum to include any fact that increases a defendant's potential sentence — regardless of its status as a statute or regulation and regardless of its provenance. Under such a definition of statutory maximum, the Commission performs a legislative function in contravention of Mistretta. 18 138 A similar problem appears when we consider other Supreme Court decisions addressing the guidelines. One such case is Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998). The Edwards defendants were charged with a drug-trafficking conspiracy involving cocaine and cocaine base (crack). See id. at 512-13, 118 S.Ct. 1475. The district court instructed the jury that it must find that the defendants' conduct involved crack or cocaine, and the jury returned a general verdict of guilty. See id. at 513, 118 S.Ct. 1475. The court then determined that the defendants' relevant conduct involved both forms of cocaine and premised its guidelines computations on this finding. See id. A unanimous Supreme Court upheld these computations, noting that [t]he Sentencing Guidelines instruct the judge in a case like this one to determine both the amount and the kind of controlled substances for which a defendant should be held accountable. Id. at 513-14, 118 S.Ct. 1475 (internal quotation marks omitted). 139 The Court rejected the defendants' claim that the district court was required by the Constitution or the relevant statute to presume that the jury found that the conspiracy involved only cocaine, reasoning that such a presumption would have little effect because the district court would still be required to impose a sentence based on all relevant conduct, including conduct found by the judge but not the jury. See id. at 514, 118 S.Ct. 1475. The Court added, [P]etitioners' statutory and constitutional claims would make a difference if it were possible to argue, say, that the sentences imposed exceeded the maximum that the statutes permit for a cocaine-only conspiracy. Id. at 515, 118 S.Ct. 1475. This was not the case, however, because the sentences imposed ... were within the statutory limits applicable to a cocaine-only conspiracy. Id. 140 In short, the Court concluded in Edwards that the district court was required by the guidelines to go beyond the facts found by the jury and determine for itself the type and quantity of drugs involved in the offense, and it rejected any possible constitutional challenge to this scheme precisely because the sentence imposed — based, as it was, on judicial findings of fact — was not more than the legislatively prescribed statutory maximum authorized by the finding of guilt by the jury. Edwards is entirely consistent with the rule adopted in Apprendi, which requires a jury finding for facts that establish the maximum potential statutory penalty. See Apprendi, 530 U.S. at 487, 120 S.Ct. 2348 n.13 (explaining that Apprendi rule applies to the imposition of a sentence more severe than the statutory maximum for the offense established by the jury's verdict). Edwards is also consistent with our understanding of Blakely, i.e., that in Blakely the Court simply applied the rule of Apprendi to a new set of facts. If one understands Blakely as having broadened the definition of statutory maximum, however, Edwards is no more. Under a supposed Blakely redefinition of statutory maximum, the Court could not have brushed aside the constitutional question presented in Edwards simply by stating that the findings made by the district court did not cause the sentence to exceed the maximum that the statutes permit for a cocaine-only conspiracy. Edwards, 523 U.S. at 515, 118 S.Ct. 1475. To the contrary, under the asserted Blakely redefinition of statutory maximum, the Edwards Court would have faced a substantial constitutional question because the findings made by the district court regarding drug type and quantity would have increased the statutory maximum, thereby creating a right to jury findings on those questions. 141 We must also be mindful of the effect of an incorrect reading of Blakely on United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam). In Watts, the Supreme Court thought it so obvious that judges could consider acquitted conduct in sentencing a defendant under the guidelines, see id. at 157, 117 S.Ct. 633, that the case was decided without oral argument despite Watts' claim that such a rule posed constitutional problems under the Double Jeopardy Clause, the Due Process Clause, and the Sixth Amendment, see Respondent Watts' Brief in Opposition, United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (No. 95-1906), 1996 WL 33413758, at -. 142 The sentence challenged in Watts was based in part on acquitted conduct, i.e., factual allegations that the jury determined had not been proven beyond a reasonable doubt. The Court nevertheless upheld this sentence, noting the lower standard of proof applicable to sentencing proceedings and reiterating its previous holding that application of the preponderance standard at sentencing generally satisfies due process. Watts, 519 U.S. at 156, 117 S.Ct. 633 (citing McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)). If Blakely redefined the term statutory maximum, however, consideration of acquitted conduct in establishing the guideline range would violate the Due Process Clause precisely because of the lower standard of proof. 143 In summary, we conclude that the fundamental question under Apprendi and Blakely is not simply whether judicial fact finding increases a defendant's sentence relative to the sentence that would otherwise be imposed. Such a reading of these cases fails to take into account the context in which they were decided — a context which included the prior statements of the Supreme Court regarding the federal sentencing guidelines and Congress' intent in enacting the Sentencing Reform Act — and thus misapprehends the rule they impose. In fact, the pertinent question is whether a judicial factual finding has increased the defendant's sentence beyond what the legislature has authorized as the consequence of a conviction or guilty plea. There is thus a very real difference between federal statutes (which define crimes and set forth statutory penalty ranges, a legislative function) and the federal sentencing guidelines (which channel judicial discretion in selecting a penalty within the range authorized by Congress, a judicial function). We therefore conclude that Blakely, like Apprendi before it, does not affect the operation of the federal sentencing guidelines.

Application of Blakely to the Guidelines

Starship operates retail stores that sell books, magazines, apparel, gifts, and novelties. Some of its inventory is sexually explicit. Starship planned to open a new store in Fulton County that contained less than 25% sexually explicit materials. Starship expressly wanted a store with less than 25% sexually explicit merchandise because then Starship would not be subject to Fulton County’s zoning regulations on the location of adult bookstores.1 Accordingly, on March 24, 2004, Starship submitted to Fulton County an application for a business license to 1 Fulton County regulates “adult” establishments, including adult bookstores, within its boundaries through a comprehensive scheme of zoning regulations contained in the Fulton County Zoning Resolution (“FCZR”). Specifically, the FCZR requires adult bookstores to acquire a special “adult use permit” before they can operate as a business. FCZR, § 19.4.1. The FCZR further mandates that adult bookstores, among other things, not be located within 1000 feet of any residential- or agricultural-zoned property, any public recreational facilities, or any public or private institutional use property, which includes churches, schools, libraries, and day care centers. Id. The FCZR defines an “adult bookstore” as any “establishment or facility licensed to do business in Fulton County having a minimum of 25 percent of its stock in trade” as sexually explicit merchandise. FCZR, § 3.3.1A. 2 operate a retail store with less than 25% of its stock in trade devoted to sexually explicit materials. Fulton County ultimately granted Starship a business license for a store with less than 25% sexually explicit merchandise. Starship placed its inventory in the store and applied for a certificate of occupancy. On September 27, 2004, Fulton County code enforcement personnel inspected the proposed location, at which time Starship’s counsel informed County officials that if they disagreed with the percentage of material considered “adult,” Starship would adjust its inventory. Two days later, Steven Cover, the director of the County’s Department of Environment and Community Development, sent Starship a letter stating that Cover had concluded that Starship’s proposed store was an adult bookstore and required a special use permit. Fulton County never issued Starship a certificate of occupancy. Further, at all times in this case Starship contended its merchandise was less than 25% sexually explicit and that it was not subject to Fulton County’s adult bookstore zoning regulations. Indeed, the City of Sandy Springs has now incorporated over the area where Starship’s proposed store was located, thereby divesting Fulton County of jurisdiction. Starship subsequently obtained a permit from Sandy Springs and is currently operating its store. Starship did not challenge Fulton County’s 25% determination either 3 administratively (through Fulton County’s Board of Zoning Appeals) or through the state courts. Starship did not apply for a special use permit to operate as an adult bookstore, because it always wanted to have, and contended it had, a store with less than 25% sexually explicit materials.

starship’s retail store

As to Perrey, Thompson Distribution claims it fired her because she was insubordinate and unwilling to recognize Thompson as the new leader. In his deposition, Thompson stated that when he asked Perrey to perform certain functions, she responded along the lines of “we don’t do it that way,” or stated that she had to check with Mark Hague. In response, Perrey claims that she never refused to follow Thompson’s directions, but rather that she did not know how to perform the tasks Thompson requested and thus she needed to check with Mark Hague for guidance. At most, this means that Thompson was mistaken in his belief that Perrey was being insubordinate. However, as noted above, “[p]retext requires more than showing that the decision was ‘mistaken, ill considered or foolish.’ ” Ballance, 424 F.3d at 617 (quoting Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000). To avoid summary judgment, a plaintiff must present evidence showing that the employer did not honestly believe his proffered reason. Jordan, 205 F.3d at 343. Perrey has not done this. Moreover, the record confirms that Thompson honestly believed that Perrey was being insubordinate. Specifically, in his affidavit, Mark Hague stated that 6 Because Dubois was not replaced, his claim also fails because he lacks evidence that a similarly situated individual outside the protected class was treated more favorably. See, e.g., Gadsby v. Norwalk Furniture Corp., 71 F.3d 1324 (7th Cir. 1995) (holding that the district court properly granted the defendant summary judgment where the plaintiff failed to present evidence that he was replaced by someone outside the protected class). 16 No. 05-1654 Thompson approached him to discuss Perrey’s refusal to follow his directions. Hague further stated that he told Thompson that Perrey just did not know how to do what he was asking her to do. Although Hague did not believe Perrey was being insubordinate, this testimony confirms that Thompson did. Without any evidence of pretext, then, Thompson Distribution was entitled to summary judgment on Perrey’s race discrimination claim, as well.

Anna Perrey

12 USCA11 Case: 19-13018 Date Filed: 08/23/2021 Page: 13 of 65 In July 2012, Special Agent John Bates was assigned to lead the IRS criminal investigation of Investment Equity. Bates interviewed Jeune, and she admitted to preparing fifty tax returns at Investment Equity while she was on supervised release for her 2009 tax-fraud conviction. In a separate interview, Voltaire also conceded to Bates that he lied during the civil audit and admitted to not preparing tax returns at Investment Equity.

2012 IRS Criminal Investigation

15 Walker's second claim, that the district court erred in excluding a prior consistent statement (his police report filed shortly after the incident), is considerably more persuasive. To explain why, we must provide additional background. At trial, Walker testified that his use of force was prompted by Gaines' attempt to knife him. Predictably, on cross-examination, Gaines' attorney attempted to undermine the credibility of this claim. Laying the groundwork for this effort, Gaines' counsel questioned Walker about the difference between [300 U.S.App.D.C. 95] the crimes of carrying a deadly weapon and possession of a prohibited weapon; Walker responded that the possession crime implies an intent to use the weapon. Gaines' attorney then showed Walker Exhibit 32, a document detailing the incident completed by the United States Attorney's office, and Walker admitted that whoever completed Exhibit 32 would have likely relied on Walker's PD-163--his sworn arresting officer's report about the incident. 4 Walker acknowledged that Exhibit 32 charged Gaines only with the carrying offense, which did not imply an intent to use the knife, even though the more serious possession offense was also listed as an option on that form. Attempting to capitalize on that point, Gaines' attorney asked Walker the following questions: 16 Q. Well, did you indicate to the United States Attorney or in preparing your form that Mr. Gaines did not intend to use his long knife unlawfully against you? 17 A. I gave the US Attorney my 163 of what happened that night. I swore to it, and that's based on the information on a 163, the arrest report, and that's what they used. 18 Q. All right. Just so we have it clear, at no point did Mr. Gaines seek to use his knife against you; is that correct? 19 A. No, that's not correct. 20 After Gaines' attorney completed his examination, Walker's attorney tried to introduce Walker's actual PD-163--which clearly mentions Gaines' assault on Walker with a knife--under Federal Rule of Evidence 801(d)(1)(B) 5 as a prior consistent statement submitted to rebut an express or implied charge of recent fabrication. The district court refused to allow admission of the report on the ground that the cross-examination of Walker did not expressly or impliedly make any charge of fabrication. According to the district court, Gaines' attorney merely attempted to show an inconsistency in Walker's testimony, that Walker did not say the same thing at trial as he did immediately after the incident, not that Walker's later assertion was a fabrication. 21 This ruling was reversible error. 6 We recognize, of course, that not every attempt to impeach a witness's credibility constitutes a charge of fabrication. See United States v. Wright, 783 F.2d 1091, 1099 n. 5 (D.C.Cir.1986). Nor does pointing out inconsistencies between trial and pretrial testimony inevitably constitute such a charge; in some cases, an attorney may be implying only that the witness has a faulty memory, not that he has wilfully altered his account of events. And we are cognizant that our review of the trial court's ruling is only for an abuse of discretion. See United States v. Montague, 958 F.2d 1094, 1098 (D.C.Cir.1992). Nonetheless, we conclude that the only reasonable interpretation that 'fairly arises [300 U.S.App.D.C. 96] from the line of questioning ... pursued,' United States v. Farmer, 923 F.2d 1557, 1568 (11th Cir.1991) (quoting United States v. Baron, 602 F.2d 1248, 1253 (7th Cir.), cert. denied, 444 U.S. 967, 100 S.Ct. 456, 62 L.Ed.2d 380 (1979)), is that the cross-examination of Walker went beyond such unexceptional tactics and did in fact amount to a charge that Walker was fabricating his in-court testimony when he said that Gaines tried to use his knife on him. 22 Indeed, we think a reasonable juror would find the charge of fabrication to be rather explicit. Gaines' attorney suggested that Exhibit 32 did not charge Gaines with a crime consistent with use of the knife because Walker's PD-163 did not include that fact. The clear implication of that questioning is that Walker's PD-163 omitted this crucial fact because he did not come up with that accusation until long after he completed the document made contemporaneously with the incident. Moreover, in the excerpt quoted above, Gaines' attorney appeared to explicitly challenge the veracity of Walker's in-court testimony that Gaines had pulled a knife on him by confronting him with a statement 180 degrees opposite from his testimony: All right. Just so we have it clear, at no point did Mr. Gaines seek to use his knife against you; is that correct? We conclude that this line of questioning contains a more than sufficiently clear charge that Walker's testimony was a recent fabrication to require the district court to allow the PD-163 into evidence under Rule 801. See United States v. Casoni, 950 F.2d 893, 904 (3d Cir.1991) (there need be only a suggestion that witness consciously altered testimony to allow prior consistent statement into evidence); United States v. Cherry, 938 F.2d 748, 755-56 (7th Cir.1991) (cross-examination that challenged the core of witness's testimony constituted implied charge of fabrication). 7 23 Moreover, we think that the failure to admit this evidence was especially prejudicial here. When the charge of fabrication is based on a misleading or partial rendering of a witness's past statements--as opposed to an attorney's highlighting of actual inconsistencies in a witness's account of events at different times--it is particularly important that the consistent statements be allowed into evidence so that the jury is not left in the dark as to the actual facts. See United States v. Tarantino, 846 F.2d 1384, 1411 (D.C.Cir.) (The opposing party may not pick and choose among prior statements to create an appearance of conflict and then object when this appearance is rebutted by means of a fuller version of the same prior statements.), cert. denied sub nom. Burns v. United States, 488 U.S. 840, 109 S.Ct. 108, 102 L.Ed.2d 83 (1988); United States v. Andrade, 788 F.2d 521, 533 (8th Cir.) (where cross-examination left impression of inconsistency between witness's in-court testimony and his earlier notes, government was entitled to introduce the notes to show that they were entirely consistent with the live testimony), cert. denied sub nom. Riley v. United States, 479 U.S. 963, 107 S.Ct. 462, 93 L.Ed.2d 408 (1986); cf. Coltrane v. United States, 418 F.2d 1131, 1140 (D.C.Cir.1969) (prior consistent statements should be admitted where they could be of clear help to the factfinder in determining whether the witness is truthful). Here, the attorney's charges of fabrication were based on the insinuation that Walker's PD-163 did not include the allegation that Gaines pulled a knife. In fact, that document included just such a claim. The trial court's refusal to allow the jury to have full information on this key point left the factfinders with a skewed understanding of the evidence and must inevitably have prejudiced Walker's case.

Admission of Prior Consistent Statement

15 NCRI launches a two-pronged attack on the Secretary's designation of it as an alias for the PMOI. Its first argument is a three-step analysis forwarding the proposition that the Secretary's alias designation of NCRI has no support in the record. Brief of NCRI at 6. The first step of its reasoning is the generally uncontroversial proposition that Article III [of the Constitution] forbids courts from rubberstamping Executive decisions. Id. at 7. In support of this premise of its syllogism, counsel reminds us that the courts have rejected interpretations of statutes that cast Article III judges in the role of petty functionaries ... required to enter as a court judgment an executive officer's decision but stripped of capacity to evaluate independently whether the executive decision is correct. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 426 (1995). While there will be unreviewable Executive decisions, and legitimate differences of opinion as to which decisions fall within the rubberstamp category condemned in Gutierrez, and which are simply unreviewable decisions, see generally id. at 448-49 (Souter, J., dissenting), we can accept the Council's general proposition for purposes of this discussion and move to the further steps of its three-part analysis. 16 In applying the rubberstamping premise to the present designation of the NCRI as an alias of the PMOI, the Council draws from the Act and from our application of it in People's Mojahedin the principle that designations under the Act must survive a review in which the court determines that the designation has substantial support in the administrative record taken as a whole or in classified information submitted to the court, 8 U.S.C. 1189(b)(3)(D), and is not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Id. 1189(b)(3)(A). 2 Again, the basic proposition, being drawn from the words of the statute, may be assumed. Although the Council's brief disputes our prior application of the test in People's Mojahedin and seems to invite us to overrule that decision, this panel has no power to do so, even if we were inclined to accept the invitation. See, e.g., LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996)(en banc) (One three-judge panel ... does not have the authority to overrule another three-judge panel of the court.); United States v. Kolter, 71 F.3d 425, 431 (D.C. Cir. 1995) (This panel would be bound by [a prior] decision even if we did not agree with it.). 17 Proceeding from the two premises--that the AEDPA does not require this Court to rubberstamp the Secretary's decision, and that the process of reviewing without rubberstamping involves applying the substantial-record-support and arbitrary-and-capricious standards--the NCRI concludes that we must set aside the designations, as there is no support in the 1999 SAR [Summary of Administrative Report] for the fundraising allegation. Brief of NCRI at 12. However, that conclusion depends upon our accepting not only the first two steps of the syllogism, but also the Council's factual proposition that the only difference between the 1999 alias designation and the 1997 review in which the Secretary did not designate the Council as an alias of the PMOI is an FBI agent's hearsay declaration concerning the use of the National Council of Resistance name in fundraising for the PMOI in the United States. It is at this point that the Council's reasoning conspicuously founders, even if we uncritically accept the first two steps. 18 First, we can neither confirm nor deny that the agent's declaration is the only difference in the record support between the 1997 and 1999 records. We may under the AEDPA consider the entire record before us including any classified submissions under 1189(b)(1)(2). In fact, the substantial support test relied upon by the Council expressly empowers us to set aside the designations only if they lack[ ] substantial support in the administrative record taken as a whole or in classified information submitted to the courts under paragraph (2). 8 U.S.C. 1189(b)(3)(D). As we recognized in People's Mojahedin, we will not, cannot, in a case under this statute lay out the 'facts.' 182 F.3d at 19. As we further recognized in that decision, our only function in reviewing a designation of an organization as a foreign terrorist organization is to decide if the Secretary, on the face of things, had enough information before her to come to the conclusion that the organizations were foreign and engaged in terrorism. Id. at 25. We see no greater function for our review of the alias designation. We have, as the statute mandates, reviewed the administrative record taken as a whole and the classified information submitted to the court. We conclude that the Secretary's designation of the National Council of Resistance as an alias for the PMOI does not lack substantial support and that designation is neither arbitrary, capricious, nor otherwise not in accordance with law. 19 The Council argues that we must nonetheless strike down the alias designation in 1999 because the State Department in 1997 determined that the NCRI was not an alias of PMOI. In the Council's view, this new designation is barred by the principle that when an executive agency switches position, it must provide a reasoned explanation for the change. Brief of NCRI at 16 (citing Motor Vehicle Manufacturers Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)). Again, the principle of law offered by the Council is incontrovertible, but it does not apply to this case. If the Secretary had taken the 1997 record and reached a different conclusion, presumably she would have to offer us some reason for the change. Whether this reason would have to be disclosed to the appellants is arguable given the role of classified material in reviews under this statute but she might at least have been required to explain to the court the reason for the change. However, the Secretary was not acting on the same record. There is no logical reason for concluding that there has been no change in either the facts or the Secretary's knowledge of the facts between the 1997 refusal to designate and the 1999 designation. In short, on the record at hand, we cannot find that the Secretary erred in her application of the statute. We therefore must affirm that designation unless the Secretary overstepped either statutory or constitutional authority. 20

Record Support

Enforcement of the Act 78 The effect that reprosecution would have on the administration of justice and enforcement of the Speedy Trial Act likewise does not call for barring reprosecution. To be sure, the orderly administration of justice necessarily is hindered to some degree whenever the Act is violated. Nevertheless, a retrial should not take more than one week (the first trial lasted four days), and there is no reason to believe that reprosecution would otherwise have a deleterious effect on the fair and efficient administration of justice. 79 Similarly, enforcement of the Speedy Trial Act would not be unduly hampered by allowing Barnes to be retried. There is little doubt that the harsh remedy of dismissal with prejudice has greater deterrence value than its counterpart. But considerations of general deterrence are not dispositive or else dismissal with prejudice would impermissibly become the preferred tool. See United States v. Taylor, 487 U.S. 326, 334, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988) (Congress did not intend any particular type of dismissal to serve as the presumptive remedy for a Speedy Trial Act violation.). Moreover, the fact that a retrial might be necessary at all is often deterrence enough. We find that to be true here. As the Supreme Court has observed, 80 Dismissal without prejudice is not a toothless sanction: it forces the Government to obtain a new indictment if it decides to reprosecute, and it exposes the prosecution to dismissal on statute of limitations grounds. Given the burdens borne by the prosecution and the effects of delay on the Government's ability to meet those burdens, substantial delay well may make reprosecution, even if permitted, unlikely. 81 Id. at 342, 108 S.Ct. 2413. Conversely, little would be gained in the case at bar by foreclosing the possibility of another trial. 82

Effect of Reprosecution on Administration of Justice and

Even assuming, arguendo, that the first sentence of the Description section constitutes a promise to recover the amount AT & T must pay to the USF, the majority's interpretation of the CSA and CSG is still flawed. In particular, the majority's decision conflicts with basic principles of contractual interpretation because it (1) fails to give specific terms greater weight than general language, (2) adds terms to the description of the UCC, and (3) reaches a conclusion that is absurd, commercially unreasonable, and contrary to reasonable expectations. [8]

Basic Principles of Contractual Interpretation

purpose of executing an arrest warrant, and Agnew first argues that the District this finding has not been challenged. Court erred in finding that the officers’ Indeed, Duncan testified that he was entry into 2740 Ludwig Street was assigned to the Fugitive Task Force justified by exigent circumstances. We charged with serving arrest warrants, and review the denial of a suppression motion Agnew testified that he was aware that for clear error as to the underlying facts, there was “a warrant out for [his] arrest” at but exercise plenary review as to its the time of the arrest. Moreover, the legality in light of the court’s properly police had probable cause to believe that found facts. United States v. Givan, Agnew was in the home because they saw 320 F.3d 452, 458 (3d Cir. 2003). We may him through the window. affirm on any ground supported by the record. United States v. Jasin, 280 F.3d We note that Payton only addresses 355, 362 (3d Cir.), cert. denied, 537 U.S. entry by officers into the residence of the 947 (2002); United States v. Belle, 593 subject of the warrant, 445 U.S. at 603, F.2d 487, 499 (3d Cir. 1979) (en banc) and that there was no testimony at the (affirming denial of suppression motion on suppression hearing about whether 2740 3 Ludwig Street was Agnew’s residence. As the Ninth Circuit observed: However, whether the home was Agnew’s residence is ultimately irrelevant because A person has no greater under any of the possible alternatives the right of privacy in another’s entry pursuant to the arrest warrant did not home than in his own. If an violate Agnew’s Fourth Amendment arrest warrant and reason to rights. believe the person named in the warrant is present are If Agnew resided at 2740 Ludwig sufficient to protect that Street, his arrest was lawful under Payton person’s fourth amendment because the police acted pursuant to an privacy rights in his own arrest warrant. See id. at 602-03. If home, they necessarily Agnew did not reside at 2740 Ludwig suffice to protect his privacy Street, he may have lacked a privacy rights in the home of interest in the residence and would have no another. standing to challenge the police officers’ entry. Minnesota v. Olson, 495 U.S. 91, The right of a third party not 95-97 (1990) (holding that only a person named in the arrest warrant with a reasonable expectation of privacy in to the privacy of his home a residence—like an overnight guest—may may not be invaded without complain that an entry into the residence a search warrant. But this was unlawful). In any event, even if right is personal to the home Agnew, although not a resident at 2740 owner and ca nnot be Ludwig Street, did have a privacy interest, asserted vicariously by the the entry did not violate his privacy rights. person named in the arrest The Supreme Court held in United States warrant. v. Steagald, 451 U.S. 204, 211-14 (1981), that the Fourth Amendment does not United States v. Underwood, 717 F.2d permit police to enter a third person’s 482, 484 (9th Cir. 1983) (en banc) home to serve an arrest warrant on a (citations omitted); see also United States suspect. But Steagald protected the v. Kaylor, 877 F.2d 658, 663 n.5 (8th Cir. interests of the third-party owner of the 1989) (“Steagald addressed only the right residence, not the suspect himself. See id. of a third party not named in the arrest at 212 (stating the issue to be “whether an warrant to the privacy of his or her home. arrest warrant—as opposed to a search This right is personal to the homeowner warrant— is adequate to protect the Fourth and cannot be asserted vicariously by the Amendment interests of persons not person named in the arrest warrant.”). named in the warrant, when their homes Thus, even if Agnew was a non-resident are searched without their consent and in with a privacy interest, the Fourth the absence of exigent circumstances”). Amendment would not protect him from 4 arrest by police armed with an arrest Rule [of Evidence] 403 objection and its warrant. reasons for doing so are not otherwise apparent from the record, there is no way Because the officers entered the to review its discretion. In such cases, we residence armed with a warrant for need not defer to the reasoning of the Agnew’s arrest, and had probable cause to district court.” Id. at 781 (citation believe that he was inside, the District omitted). Agnew asks us to extend this Court properly denied the motion to principle to decisions under Rule 609. The suppress. District Court stated, “I have read the [government’s] motion and your brief. I

the officers entered the residence for the

5 As part of the sentence, the district court ordered O'Connor to pay $66,000.00, jointly and severally with codefendant Jeff Waldecker, at such times and in such amounts as directed by the probation officer. The probation office directed O'Connor to participate in the Bureau of Prisons Inmate Financial Responsibility Program (IFRP), see 28 C.F.R. Sec. 545.11, and begin payment of the restitution. O'Connor advised the probation office by letter that he believed that the probation office lacked the authority to direct him to pay restitution. The probation office then asked the district court to order O'Connor to participate in the IFRP. On January 29, 1993, the district court issued such an order. O'Connor timely filed a motion to reconsider that order on February 8, 1993, see Fed.R.App.P. 4(c), and now appeals arguing that the order modified his sentence. 6 When a sentence includes an order for restitution, it is the district court that establishes a method of restitution and payment schedule that the probation office may administer and enforce. United States v. Mohammad, 53 F.3d 1426, 1438 (7th Cir.1995). Because the original sentencing order lacked the specificity required by Mohammad, the district court appropriately corrected the sentence by establishing a method of payment pursuant to Fed.R.Crim.P. 35(a). 7 AFFIRMED.

Inmate Financial Responsibility Program

30 The district court found that the circumstances surrounding the failure of the 3-cm radar were most consistent with water incursion in the waveguide and scanner areas. This finding is amply supported by the evidence. First, a white dot appeared upon the screen just before the unit failed. This symptom suggests that there was water in the waveguide. In addition, the weak picture noticed by Captain Schatzel is also symptomatic of water incursion. 23 St. Romain, the radar service technician, also found evidence of water in the scanner. 24 While St. Romain found no water remaining in the waveguide, he did find some improvement of the radar picture after disassembling and then reassembling the waveguide. From this the district court made the reasonable inference that in the process, St. Romain cleaned out any water that was in the waveguide. Finally, the failure of the 3-cm radar coincided with the ship hitting a squall, thus providing the opportunity for water incursion. 31 St. Romain discovered that the scanner array was extremely porous and in dire nee[d of] recoating. He also found evidence of water in the scanner. Deutsche Shell's own expert, Mr. Stakelum, recognized that the extremely porous condition of the scanner array could not have suddenly manifested itself, but must have existed when the vessel left Sullom Voe. 25 32 In addition, Deutsche Shell argues that any damage to the ball bearing could not have caused the water incursion because water was found only in the scanner and not in the waveguide where it would be if it entered through the ball bearing. We do not agree. The evidence demonstrated that water could enter the waveguide through a defective ball bearing. The district court found, consistent with the expert testimony, that the effects of evaporation may explain the absence of more water. 26 Thus, the fact that no water was found in the waveguide after it failed does not mean that water was not present at the time the radar failed. 33 The district court concluded that the water incursion was a result of Deutsche Shell's failure to exercise due diligence in maintaining the 3-cm radar unit. 34 Where the standard of due diligence is applicable, it comprehends inspection and investigation, where prudent, to determine the existence of deficiencies before they become critical, and the failure to discover defects which examination would necessarily have disclosed is the very absence of due diligence. 27 35 Deutsche Shell argues that regardless of whether water incursion occurred, it proved that the DIALA was seaworthy when it left Sullom Voe. We agree with the district court that Deutsche Shell focuses on too narrow a time frame. 36 The district court specifically rejected Deutsche Shell's effort to focus on the period between the drydocking in August 1982 and the grounding in June 1983. The antenna was not overhauled while the vessel was in drydock. While the vessel was in drydock in 1982, Jens Pedersen, then a young, inexperienced technician, spent only five hours on the vessel examining both radar units and the directional finding device. The radar also passed a German classification inspection. There was no indication, however, that the classification inspector conducted more than a cursory review. As the district court noted, [i]f a shipowner is to enjoy the safe harbor of an inspector's okay, the shipowner must show that it revealed sufficient facts to the inspector; Shell did not. 28 Accordingly, the district court gave little weight to the lack of problems detected by Pedersen or the German classification inspector. 37 The district court found, consistent with the evidence, that if Deutsche Shell had followed the manufacturer's recommendation to keep an accurate radar log and to overhaul the radar array every two years, Deutsche Shell would have avoided the surprises that led to the grounding in June 1983. Deutsche Shell's actions did not even approach the standard suggested by the radar manufacturer. 29 There was no evidence that either the 3-cm or the 10-cm radar underwent the recommended overhaul during the entire ten year period they were installed on the DIALA. During such an overhaul, the severe porosity problems, the defective ball bearing, and other opportunities for water incursion would have been remedied, thereby averting the failure of the 3-cm radar.

Water Incursion

The Appellees contend that the Partnership, rather than PIN in its individual capacity, represents the applicable entity in this case. This argument is unavailing. PIN's Lieutenant Governor signed both Settlement Agreements as PIN's personal representative, not as the Partnership's Limited Partner. John Palmer, the Partnership's General Partner, signed on behalf of Schiavi Homes. Moreover, even if Schiavi Homes, not PIN in its individual capacity, signed the agreements, the district court's observation that [c]ourts -14- 14 look beyond the mere formality of corporate structure in construing the identity of parties with regard to S 81, Penobscot, 906 F. Supp. at 19, necessitates no elaboration on our part. Se e Altheimer & Gray, 983 F.2d at 809-10; Pueblo of Santa Ana v. Hodel, 663 F. Supp. 1300, 1306 (D.D.C. 1987).

Agreement with an Indian Tribe

30 Rigsby was employed during Gillem's administration as a senior citizens' aide but was not recommended for rehiring by Meade. Rigsby testified that she put up posters, talked to people, and displayed bumper stickers and yard signs in support of Gillem. Rigsby further stated that she advised Meade of her support for Gillem at a senior citizens' party. Meade cited budget constraints and Rigsby's lack of seniority as the reason that she was not rehired. The district court concluded that Rigsby had not introduced sufficient evidence to establish by a preponderance of the evidence that Gillem's First Amendment activities were a 'substantial' or 'motivating' factor in Meade's decision not to rehire her, and that her retaliation claim rested upon conclusory allegations, improbable inferences, and unsupported speculation. We agree. There is no evidence that Rigsby was the victim of a patronage dismissal; she has shown only that she was not rehired. We affirm the grant of summary judgment on Rigsby's claim.

Juanita Rigsby

Lotteries in various forms have been a part of the American life since colonial times. Among the beneficiaries of early colonial lotteries were such notable institutions as Harvard and Yale Universities. However, until the early 1980's, States have traditionally been suspicious of lotteries believing them to be potentially injurious to their citizens. Congress has long supported state efforts to closely regulate lotteries or ban them entirely. State attitudes toward lotteries began to change in part because of taxpayer resistance to the imposition of new taxes and state needs for new sources of revenue. A substantial majority of states have now enacted some form of state lottery. In 1992, Texas established a state lottery which is operated by the Texas Lottery Commission (TLC). This case arose when the TLC refused to honor a winning lottery ticket bought through the services of a private corporation by an out-of-state player. Before 1994, the sale of lottery tickets in interstate commerce was controlled by: 1) 18 U.S.C. § 1084(a), which made it illegal for one engaged in the business of betting or wagering to knowingly use a wire facility for transmitting bets or wagers in interstate commerce; 2) 18 U.S.C. § 1301, which made it illegal to physically carry lottery tickets in interstate commerce; and 3) 18 U.S.C. § 1953, which made it illegal to transport wagering paraphernalia in interstate commerce. These code sections created a web which, under most circumstances, adequately protected state lottery monopolies. However, Pic-A-State, a Pennsylvania Corporation with its principal place of business in New Jersey, was able to exploit a loophole 2 in this web by creating a computer network between its agents in every lottery state and transmitting its customer's lottery ticket orders over that network. Pic-A-State's operation enabled its customers to legally purchase a chance in any lottery in the nation. Because Pic-A-State's operation potentially affected each state's stream of lottery revenues 3 and prevented each state from maintaining exclusive control over its lottery, the states lobbied Congress to close this loophole by amending the code. 4 On September 13, 1994, Congress enacted the Interstate Wagering Amendment as part of the Violent Crime Control and Law Enforcement Act of 1994. This amendment closed the loophole through which Pic-A-State was operating by revising 18 U.S.C. §§ 1084, 1301, and 1953. Pic-A-State promptly challenged the constitutionality of the Interstate Wagering Amendment in the Federal District Court for the Middle District of Pennsylvania (Pennsylvania Court). Pic-A-State also sought to enjoin the enforcement of the revised code sections until the merits of its challenge could be heard. Because, it met the dual burdens of showing irreparable harm and the probability of success on the merits the Pennsylvania Court enjoined the Department of Justice (DOJ) from enforcing revised code sections against Pic-A-State. In November 1994, while the injunction was in effect, Scott Wenner bought two Texas Lottery tickets for face value plus a one-dollar per ticket service charge from a Pic-A-State outlet in Croyden, Pennsylvania. One of Wenner's tickets matched all six numbers drawn by the TLC, entitling Wenner to the grand prize of $10,000,000. Wenner promptly claimed his prize. In January, 1995, the TLC refused to honor Wenner's claim alleging violations of both federal and Texas law. In February 1995, the Pennsylvania Court denied Pic-A-State's constitutional challenge to the Interstate Wagering Amendment and dissolved the injunction. The Third Circuit affirmed and Pic-A-State ultimately dissolved. Wenner filed suit in the Southern District of Texas seeking a declaratory judgment that his winning ticket was valid and an order enforcing the contract arising therefrom. BDM Enterprises, which sold the actual lottery ticket, intervened seeking its one-percent seller's bonus. The TLC raised a number of defenses, most notably: 1) Wenner purchased his ticket in violation of the Interstate Wagering Amendment; 2) Wenner purchased his ticket in violation of various sections of the Texas Lottery Code; and 3) Wenner's claim against the TLC was barred by sovereign immunity. 5 Both parties moved for summary judgment. The district court granted summary judgment in favor of the TLC. It reasoned that, despite the pendency of the injunction, Wenner's purchase of the ticket through Pic-A-State violated the Interstate Wagering Amendment and therefore the resulting contract was unenforceable. We disagree with the district court and therefore reverse and remand.

history and background

129 PATCO also objects to the conclusion of the FLRA that PATCO committed a separate unfair practice of condoning a strike by failing to take action to prevent or stop such activity, a violation of 5 U.S.C. § 7116(b)(7)(B) (Supp. IV 1980). 64 After finding that the evidence presented was sufficient to establish the prima facie existence of a strike, Chief A.L.J. Fenton ruled that the burden shifted to PATCO to produce evidence showing that it had taken some action to prevent or to stop the strike. 65 PATCO offered no such evidence. 130 PATCO does not now object to the legal principle followed by Judge Fenton regarding the shifting of the burden; instead, PATCO contends that there was insufficient evidence to shift the burden in this case. PATCO argues that the FLRA General Counsel failed to prove that the PATCO National union was aware of the strike at any time during which it could have taken action to stop it; hence, it argues that the General Counsel failed to establish that National union had any obligation under section 7116(b)(7)(B) to attempt to stop the strike. 66 131 Given our affirmance of the unfair labor practice finding under section 7116(b)(7)(A), it necessarily follows that the FLRA could conclude that the PATCO National union was aware of the strike and, as a consequence, had a statutory obligation to attempt to stop the strike activity. In addition, we believe that the FLRA was fully justified in taking official notice of proceedings in the District Court for the District of Columbia. During the early morning of August 3, 1981, the District Court issued a restraining order against the PATCO strike. During the evening of that same day, the District Court found both the PATCO National union and its President, Robert Poli, in civil contempt for violation of the restraining order. United States v. Professional Air Traffic Controllers Organization, 107 L.R.R.M. (BNA) 3210 (D.D.C.1981). In these circumstances, PATCO certainly cannot claim lack of knowledge of the strike. On these bases, and because PATCO offered no evidence to indicate that it even attempted to end the strike, we also affirm the FLRA's unfair labor practice finding under 5 U.S.C. § 7116(b)(7)(B) (Supp. IV 1980). 67 132

Violation of Section 7116(b)(7)(B)

70 White argues that, even if this court holds that the option to put is not a valid defense to payment of the promissory note, he is not obligated on the note because the assignment of the note was improper. Specifically, he contends that: 71 He executed the promissory notes in favor of Amberwood as part of the purchase price of his limited partnership interest. Cardinal Industries, Amberwood's general partner, took the notes and assigned them to Ameritrust as collateral for the general corporate borrowings of the Cardinal entity, in order to fund Cardinal's corporate cash needs. In doing so, the general partner converted the notes and acted in violation of its fiduciary duties and in violation of the Partnership Agreement, which prohibited the general partner from assigning Mr. White's notes as collateral for a loan, except for a loan to be obtained by the partnership, to be made to the partnership, or on behalf of the partnership. The loan that Cardinal obtained from Ameritrust using the Amberwood notes as collateral did not meet any of these three standards, and Amberwood received nothing in exchange for assignment. There was thus a failure of consideration as to Mr. White's notes, in that Cardinal and Amberwood materially failed to perform, and Mr. White was excused from performance to Amberwood. Mr. White's defense to payment as against Amberwood operates as a defense against Amberwood's assignee, Ameritrust. 23 72 White presented to the district court both evidence and argument to support this defense. The district court did not address the merits of this defense. Rather, the district court assumed, without deciding, that the note was properly assigned, finding a decision on the propriety of the assignment unnecessary given its construction of the put option agreement. 73 We now find a decision on the propriety of the assignment of the note necessary. Because we affirm the district court's decision as to the non-negotiability of the note, Ameritrust took the note subject to any defenses White could assert against Amberwood. White's allegation that Amberwood and Cardinal violated the Partnership Agreement by assigning the note to Ameritrust is a potentially viable defense as against Amberwood and, therefore, as against Ameritrust. The district court understandably did not rule on this potentially viable defense, as it held that the put option agreement relieved White of liability to Ameritrust. Because we reverse the district court's holding as to the put option agreement, we must now ask the district court to rule on White's alternative defense, the alleged impropriety of the assignment of the note. 74 Ameritrust contends that a remand to the district court for a decision on the propriety of the assignment is unnecessary. First, Ameritrust argues that the chain of title issue was decided in In re Cardinal Industries, Inc., Civil Action No. 2-90-62087, slip op. (Bkr.S.D.Oh. June 7, 1990), 24 a bankruptcy court decision in the Cardinal bankruptcy proceedings. Ameritrust repeatedly refers to this unpublished decision as Plaintiff's Exhibit 23. The decision is not Plaintiff's Exhibit 23, and we have been unable to locate a copy of the decision in the extensive record in this case. In any event, Ameritrust concedes that the decision is merely an order granting Ameritrust relief from the automatic stay, and we fail to see how such an order resolves the propriety of the assignment of the note. Second, Ameritrust contends that White has failed to deny the propriety of the assignment of the note. This contention is belied by the record before us. Accordingly, we find it necessary to remand this case for the district court to decide whether the assignment of the promissory note was proper.

Propriety of the Assignments

60 The district court gave Griffin leave to file a fourth amended petition in which he alleged that the St. Louis police officers violated his due process rights by engaging in suggestive misconduct during a pretrial photo identification procedure in which Robert Fitzgerald positively identified the petitioner. Griffin claims that he is entitled to a new trial because a substantial likelihood exists that he was mistakenly identified by Fitzgerald. Moreover, Griffin contends that any subsequent in-court identification was irreparably tainted by improper police conduct. Because the district court found that the actual innocence exception to the procedural bar applied to this claim, the district court addressed the merits of the claim. 61 A conviction based on eyewitness identification will be set aside only when pre-trial identification procedures were so impermissibly suggestive that the procedures themselves give rise to a very substantial likelihood of irreparable harm. Trevino v. Dahm, 2 F.3d 829, 833 (8th Cir.1993). The analysis for challenging an improper identification mandates two separate findings. First, a court must determine whether the challenged confrontation between the witness and suspect was impermissibly suggestive. Graham v. Solem, 728 F.2d 1533, 1541 (8th Cir.1981), cert. denied, 469 U.S. 842, 105 S.Ct. 148, 83 L.Ed.2d 86 (1984). If so, then the court must decide whether, under the totality of the circumstances, the suggestive confrontation created a substantial likelihood of irreparable misidentification. Id. Second, a court must ascertain whether the identification procedure was so needlessly suggestive and conducive to mistaken identification as to be fundamentally unfair. Id. In essence the second inquiry is whether the challenged identification is reliable. The Supreme Court has declared that the factors a court is to consider in evaluating the likelihood of misidentification include: 62 the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. 63 Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). 64 When an identification procedure is challenged in a habeas corpus action under 28 U.S.C. Sec. 2254, the court must presume the state court's factual findings are correct, unless the findings lack fair support in the record. Graham, 728 F.2d at 1540 (citing Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983)); 28 U.S.C. Sec. 2254(d)(8). This court has previously ruled that the presumption applies to the evaluation of both factors relevant to the determination of reliability as well as to the credibility determinations. See Trevino, 2 F.3d at 833; Graham, 728 F.2d at 1540-41. The district court found that the record fairly supported the trial court's factual findings regarding the pretrial photograph identification and that the findings would be presumed correct. We agree. 65 At the October 1993 evidentiary hearing Fitzgerald testified that he had no doubt that his pretrial identification of Griffin was accurate. The district court found that at no time during the hearing did Fitzgerald recant his testimony. Cf. Lewis v. Erickson, 946 F.2d 1361, 1362 (8th Cir.1991). The district court further found that Fitzgerald questioned the accuracy of his in-court identification only after Terrence Donough, a private investigator, informed him that Griffin had been given the death penalty for the Moss murder. 66 The district court determined that the pretrial identification of petitioner by Fitzgerald was reliable and not tainted by improper police conduct. There is no error in that finding.

fourth amended petition

The district court concluded that the asserted claims of the ’095 and ’131 patents, which recite that the knob and ferrule are slidably and rotatably “attached,” require that the knob be directly connected to the ferrule. The district court did not rely on extrinsic evidence in construing the claims. ’095 and ’131 Order, 2012 WL 246253, at n.7. SOUTHCO, INC. v. FIVETECH TECHNOLOGY INC. 7 We agree with the district court’s construction. Southco is correct that the ordinary meaning of “attached” includes both direct and indirect attachment. However, the claim requires more—namely that the ferrule and knob are attached “such that when the threaded shaft is in a retracted position, the threaded shaft captivation means prevents the ferrule and the knob from separating.” ’095 patent col. 6 ll. 25–29. An indirect attachment would not satisfy the limitation that the “the threaded shaft captivation means prevents the ferrule and the knob from separating” because if the ferrule and knob are already separated—i.e., not directly attached—the threaded shaft captivation means cannot prevent them from separating. Nothing in the specification compels a construction of “attached” that includes indirect attachment. None of the embodiments nor any discussion states that indirectly attached parts are “attached.” Southco argues that two passages in the specification support its position. We do not agree. First, Southco argues that “attached” includes indirect attachment because the patent discloses that “[t]he screw is attachable to the first panel.” Id. col. 1 ll. 36–37. This passage does not support Southco because the captive screw is directly attached to the first panel. See id. col. 1 ll. 38–44 (“The captive screw has . . . a ferrule that attaches to the upper panel.”). Second, Southco argues that “attached” includes indirect attachment because the patent discloses that the screw “is used for attaching the first panel to a lower surface . . . having a threaded hole.” Id. col. 1 ll. 37–38. This passage does not support Southco because the first panel and lower surface touch. See id. Fig. 3. Accordingly, the specification’s use of “attached” is consistent with its ordinary meaning as used in the claim: direct attachment. Although claim 1 of the ’131 patent uses “engaged” instead of “attached,” both parties agree that the terms should be construed similarly. We agree no separate 8 SOUTHCO, INC. v. FIVETECH TECHNOLOGY INC. analysis is necessary. As used in the asserted claims of the ’095 and ’131 patents, “attached” means direct attachment and “engaged” means direct engagement.

Construction of “Attached”

Gonzalez Ruano and Catalina immediately packed suitcases and fled with their two sons early the next morning. They sought help from Gonzalez Ruano’s sister in a nearby city. On the way to her house, the family noticed a truck was following them, but Gonzalez Ruano was able to evade the truck by abruptly leaving the highway. His sister allowed them to stay in another house she owned. The next day, Gonzalez Ruano began reaching out to different attorneys for help in reporting the crimes CJNG committed against him and his family. Each attorney he contacted refused to take his case or told him that the cartel would not be prosecuted or would face only small monetary fines. Finally, one attorney helped him contact a local prosecutor he trusted in Jalisco. The prosecutor told Gonzalez Ruano that the CJNG had infiltrated the law enforcement agencies in the state. He also told Gonzalez Ruano that he could not guarantee his safety if he stayed in Mexico and that his only option was to flee. Gonzalez Ruano acted quickly on the prosecutor’s advice. He sought expedited passports for himself and his family. Two days after they received their passports, Gonzalez Ruano and his family arrived in Tijuana. Once they reached the United States border, a family member took custody of the boys while Gonzalez Ruano and Catalina presented themselves for inspection. Gonzalez Ruano petitioned for asylum No. 18-2337 9 under 8 U.S.C. § 1158(b)(1)(A), withholding of removal under 8 U.S.C. § 1231(b)(3)(A), and protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16–1208.18. In February 2017, Catalina received a call from Rivera, of the CJNG. He told her he was surprised that she and her family had reached the United States without his knowledge, and he warned her that he would be notified if they returned to Mexico. Family members of Gonzalez Ruano and Catalina have also reported that since they fled, strangers have been looking for Gonzalez Ruano. Within five months after their flight, his sister was approached approximately twenty times by young men she does not know, all asking where he was. At his asylum hearing, Gonzalez Ruano introduced evidence to corroborate his story and establish his credibility, including affidavits from family members and news articles. He also called Dr. Everard Meade as an expert to testify about the CJNG generally and how country conditions in Mexico affected Gonzalez Ruano and his family. Dr. Meade explained that because of how CJNG has infiltrated Mexican agencies at multiple levels, the CJNG would quickly learn of Gonzalez Ruano’s return to Mexico if he were removed from the United States. The immigration judge found that Gonzalez Ruano’s tes- timony and evidence were consistent and credible. The judge granted relief under the Convention Against Torture, finding it was more likely than not that if Gonzalez Ruano were returned to Mexico, the CJNG would locate him and torture him again. (The government has not appealed the relief under the Convention Against Torture, but that relief does not open a path to U.S. citizenship for Gonzalez Ruano.) 10 No. 18-2337 Immigration law distinguishes between torture and persecution. The judge found that Gonzalez Ruano’s “experiences in Mexico—the past threats, the kidnapping, and witnessing two murders—do constitute past torture,” and that he had a credible fear of future torture if he were returned to Mexico. Thus the grant of relief under the Convention. Nevertheless, the immigration judge denied his application for asylum. The judge reasoned that Gonzalez Ruano did not demonstrate a nexus between persecution and his membership in a particular social group. That meant he could not establish a wellfounded fear of “persecution” as required by 8 U.S.C. § 1158(b)(1)(B)(i). Instead, the judge found that “the record supports the conclusion that [Rivera]. . . desired Catalina and personal animosity against the respondent for refusing to follow [Rivera’s] directives motivated CJNG’s action against [Gonzalez Ruano], which cannot support a nexus finding.” Gonzalez Ruano appealed, and the Board of Immigration Appeals affirmed. He now petitions for review, arguing that the immigration judge erred in denying asylum. He argues that he demonstrated a nexus between the past persecution (and feared future persecution) and his membership in a cognizable “particular social group.” We agree.

Flight from Mexico to Seek Asylum

Hinkson contends the district court erred by failing to order a new trial sua sponte after the government's closing argument because the prosecutor, knowing that Swisher likely was not a combat veteran, argued to the jury that Swisher told Hinkson he was a combat veteran, and that is why Hinkson solicited Swisher to murder Cook, Hines, and Lodge. Review is for plain error because Hinkson failed to object below. United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). A plain error is (1) an error (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir.2009). Hinkson's contention lacks merit. The government's only references to Swisher's military background in its closing argument were to point out that Swisher had told Hinkson he was a combat veteran— not that Swisher necessarily was one. Even if Swisher had never served in the military at all, it was enough that the jury found Hinkson believed he did. The government did not argue in closing that Swisher should be deemed more credible or believable on account of his purported military heroism, or that he was more likely to be a murderer-for-hire because of his military record. Accordingly, the district court did not plainly err by failing to order a new trial sua sponte after the government's closing argument.

Error in Closing Argument

Not long after Alexander Graham Bell invented the telephone, government regulators sought to deal with the public policy issues inherent in a service that was both considered to be a natural monopoly (due to the economies of scale and network effects of local telephony) and essential for the day-to-day functioning of the American public. Prior to 1996, government regulators operated under the assumption that local exchange carriers (LECs) should not only be rate-regulated, but also quarantined to the business of local telephony. The latter premise was embodied by the consent decree that broke up AT&T. In the government’s 1974 antitrust suit against AT&T, the government argued that AT&T (1) discriminated against rivals who needed access to the local loop (such as long distance companies or providers of information services) and (2) engaged in predatory pricing against rivals – a scheme of cross-subsidization that was made more likely by the fact that AT&T simultaneously operated in both regulated/monopolistic and unregulated/competitive markets. See Roger Noll & Bruce Owen, The Anticompetitive Uses of Regulation: United States v. AT&T, in The Antitrust 3 Revolution 290, 295-96 (J. Kwoka & L. White, eds., 1989). District Judge Harold Greene approved a consent decree between the government and AT&T in the form of the Modified Final Judgment (MFJ) entered in 1982. See United States v. Am. Tel. & Tel. Co., 522 F. Supp. 131 (D.D.C. 1982), aff’d, 460 U.S. 1001.1 Judge Greene retained jurisdiction over the case, and the Department of Justice promised to report to court every three years regarding the continuing need for the “line of business” restrictions. With the case on his docket for eighteen years, Judge Greene in effect became the telecommunications czar of the nation. 1996 marked a paradigm change in telephone regulation; competition, not quarantine, would best advance the public interest. In that year, Congress passed monumental legislation, the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 (codified at 57 U.S.C. § 151 et seq.). The legislation aimed to spark competition in the provision of local telephony. Congress also hoped to foster additional competition in telecommunications markets which had, due the MFJ’s line-of-business restrictions, been insulated from competition by very important competitors – namely, the RHCs. See Glen Robinson, The Titanic Remembered: AT&T and the Changing World of Telecommunications, 5 Yale J. on Reg. 517, 1 The MFJ split AT&T’s local service into seven Regional Holding Companies (RHCs): U.S. West, Pacific Telesis, Southwestern Bell, Ameritech, Nynex, Bell Atlantic, and BellSouth. The MFJ also employed various line-of-business restrictions which, for example, precluded the RHCs from providing long distance service or information services. 4 534-44 (1988). The 1996 Act has three components which are especially noteworthy. First, the Act made an important change in who regulates the telecommunications industry. The Act abolished the MFJ, see Pub. L. 104-104, Title VI, § 601, 110 Stat. 142 (codified at 47 U.S.C. § 152 note),2 and it delegated to the FCC authority to implement regulations that advance the pro-competition objectives of the Act, see, e.g., 47 U.S.C. § 251 (d)(1).3 Judge Greene was, in short, replaced by the FCC.4 Second, the Act substantively changed the way the telecommunications industry is regulated by imposing various obligations on incumbent local exchange carriers (ILECs). These obligations are defined by 2 The provision states: Any conduct or activity that was, before the date of enactment of this Act [Feb. 8, 1996], subject to any restriction or obligation imposed by the AT&T Consent Decree shall, on and after such date, be subject to the restrictions and obligations imposed by the Communications Act of 1934 as amended by this Act . . . and shall not be subject to the restrictions and obligations imposed by such Consent Decree. 3 The statute provides that “[w]ithin 6 months after February 8, 1996, the Commission shall complete all actions necessary to establish regulations to implement the requirements of this section.” 4 As the Seventh Circuit explained: Long before the 1996 Act was passed . . . it had become clear that comprehensive regulation of the rapidly advancing telecommunications markets was not a task well suited to the federal courts. Thus, one of the first things Congress did in the 1996 Act was to shift the remaining authority the district court was exercising under the MFJ over to the FCC. Goldwasser v. Ameritech Corp., 222 F.3d 390, 393 (7th Cir. 2000). 5 section 251,5 whereas section 252 governs the implementation of the obligations. Specifically, section 252(a) provides that ILECs and competitive local exchange carriers (CLECs) can voluntarily enter into interconnection agreements, and section 252(b) provides that state public service commissions (PSCs) can fashion an agreement through arbitration in the event that negotiations stall. The Act thus contemplates top-down regulation by the FCC, voluntary or arbitrated agreements,6 and resolution of post-agreement disputes in the form of contract adjudication. Section 252 also covers additional matters, such as the grounds PSCs must give in order to reject an agreement,7 what happens if a PSC chooses not to make an approve-or-reject determination at all,8 and how PSC or FCC decisions can be 5 These include: the duty to negotiate interconnection agreements in good faith; the obligation to interconnect with competitors; the obligation to provide competitors with unbundled access to its network elements (“UNEs”) at reasonable rates; the duty to offer for resell at wholesale rates any telecommunications service that the ILEC provides at retail; and the duty to allow collocation of the CLECs’ equipment on the ILEC’s premises. See 47 U.S.C. § 251(c). The 1996 Act thus envisions “three entry options: entry through resale, entry through pure facilities-based competition, and entry via the purchase of unbundled network elements.” Stuart Benjamin, Douglas Lichtman, & Howard Shelanski, Telecommunications Law and Policy 718 (2001). 6 There are thousands of existing agreements throughout the United States, and over 400 in BellSouth’s territory. 7 Section 252(e)(2) allows state commissions to reject an interconnection agreement only if the agreement discriminates against a third-party CLEC or is inconsistent with “the public interest, convenience, and necessity.” 8 Section 252(e)(5) instructs the FCC to act in the event of a PSC default. 6 appealed to a federal court.9 The final component of the Act is the removal of the line-of-business restrictions. Some restrictions, for example, sunset automatically. See, e.g., 47 U.S.C. § 275 (precluding RBOC10 entry into the alarm monitoring business until 2001). Others are removed only after ILECs prove that they have fulfilled their obligations under the 1996 Act. See 47 U.S.C. § 271(c)(2)(B) (establishing a fourteen-point “competitive checklist” that RBOCs must meet before they may offer in-region long distance service.).

Telephone Regulation

49 Philip Weinstein and Wilhelmina Harich Weinstein argue that a purported telex in support of Count V (wire fraud) was improperly admitted because there was no evidence that the telex was actually transmitted. 50 Identification and admissibility of evidence is within the discretion of the trial court. Bury v. Marietta Dodge, 692 F.2d 1335, 1338 (11th Cir.1982); Meadows and Walker Drilling Co. v. Phillips Petroleum Co., 417 F.2d 378, 382 (5th Cir.1969). Moreover, letters and presumably telegrams are prima facie authentic if their content is responsive to prior properly admitted communications. 3 Wharton's Criminal Evidence Sec. 525 (1973); 5 J. Weinstein and Burger, Weinstein's Evidence paragraphs 901(b)(4) and (1983). 51 The telexes in question were responsive to a June 9, 1977 letter from Solomon Richman to Philip Weinstein. The admission of the June 9 letter is not disputed. The evidence is therefore sufficient to support a finding that the telex in question is what the government claims it to be. Fed.R.Evid. 901(a). Additionally, we hold that the content of the telexes evidence use of interstate communications facilities. See United States v. Goss, 650 F.2d 1336, 1343 (5th Cir. Unit A 1981). 52

Telexes in support of wire fraud counts.

21 As mentioned above, Gunter relies on Booker for his argument that the District Court had discretion to consider and impose a sentence below the range set in the Guidelines for crack offenses. That decision is described in various opinions of our Court, see, e.g., United States v. Cooper, 437 F.3d 324 (3d Cir.2006), and we will not go over the same ground in detail here. Simply stated, the Supreme Court delivered two different opinions in Booker, both by five-to-four votes, with the dissenters to each opinion switching sides (Justice Ginsburg providing the tie-breaking vote in each opinion). In the first, or constitutional, opinion, the Court reaffirmed its state-law holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that [a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the [statutory] maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. Booker, 543 U.S. at 244, 125 S.Ct. 738. If not, the defendant's Sixth Amendment right to trial by jury is violated. When district judges are permitted by the Sentencing Guidelines, the application of which was mandatory under 18 U.S.C. § 3553(b)(1), 7 to cross into this forbidden area of judicial fact-finding at sentencing, they are unconstitutional. In the second, or remedial, opinion, the Court remedied this constitutional violation by excising § 3553(b)(1) from the Sentencing Reform Act of 1984, Pub.L. No. 98-473, 98 Stat. 1837, 1987 (1984), 8 thereby rendering the Guidelines effectively advisory. Id. at 245, 125 S.Ct. 738. Combining these holdings in practice means that district courts may fact-find to increase sentences beyond the Guidelines range provided they are within the statutory minimum and maximum dictated by the United States Code, take into account the relevant sentencing factors set out in 18 U.S.C. § 3553(a), 9 and ultimately are reasonable. Id. at 245-61, 125 S.Ct. 738. 22 Prior to the decision in Booker, our Court routinely upheld the 100:1 differential against constitutional attack, including equal protection claims. See, e.g., United States v. Frazier, 981 F.2d 92, 95-96 (3d Cir.1992) ( per curiam ) (holding that distinctions between crack and cocaine powder for sentencing purposes are not an equal protection violation and that the 100:1 ratio is not cruel and unusual punishment); United States v. Jones, 979 F.2d 317, 320 (3d Cir.1992) (holding Guidelines provisions imposing higher offense levels for offenses involving crack cocaine not to be unconstitutionally vague), superseded by statute as stated in United States v. Roberson, 194 F.3d 408, 417 (3d Cir.1999). 23 Since Booker made the Guidelines advisory, we have had only one occasion to revisit the crack/powder cocaine differential, and that was not a precedential opinion: United States v. Scott, 178 Fed.Appx. 140, 2006 WL 1113513, at (3d Cir. Apr.27, 2006) (holding that, given our pre- Booker case law, it would be inconsistent to require the District Court to give a nonguidelines sentence based on the [crack/powder cocaine] disparity(emphasis in text; internal quotation marks and brackets omitted)). 24 Neither our pre- nor post- Booker case law gives the answer here. The pre- Booker decisions are distinguishable because they were decided under a mandatory (and now unconstitutional) sentencing regime, whereas Scott provides little guidance because it is not precedential and, even if it were, it did not reach the question now before us: whether it is legal error for a sentencing court to believe that it must follow the crack/powder differential in the Guidelines when imposing a sentence under the now-advisory Guidelines regime. 25

Legal Landscape Post-Booker: The Third Circuit

Fantasyland first contends that the County has no substantial governmental interest under Renton in preventing private sexual conduct within an enclosed booth. We disagree. [3] The conduct at issue is not private at all. It is occurring at a retail establishment. The “curtailing [of] public sexual criminal offenses” is a significant state interest. Ellwest, 681 F.2d at 1246. The County’s objective in reducing instances of prostitution and solicitation at businesses that operate peep show booths is valid. Furthermore, the County has a substantial interest in preventing certain private sexual acts occurring within peep show booths, notably the use of so-called “glory 13998 FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO holes”—the placement of a peep show patron’s genitals through holes or gaps in the wall partition between the booths. Such activities constitute lewd conduct under California Penal Code § 647(a). See People v. Rylaarsdam, 181 Cal. Rptr. 723, 727-28 (App. Dep’t Super. Ct. 1982). [4] Moreover, there is no requirement under Renton that the asserted secondary effects be criminal. See, e.g., Ctr. for Fair Pub. Policy, 336 F.3d at 1166 (reducing late night noise and traffic). One may therefore accept Fantasyland’s proposition that masturbation in a fully-enclosed booth is legal in California and still find a substantial governmental interest in curtailing the activity. Rampant masturbation at a commercial property open to the public may rationally trigger sanitation concerns and impair the right of other patrons to view their materials or read the accompanying articles in peace. See Deluxe Theater & Bookstore, Inc. v. City of San Diego, 221 Cal. Rptr. 100, 102 (Ct. App. 1985) (finding that city had an interest in regulating peep show booths due to the potential for unlawful, offensive, and unsanitary behavior).

Substantial interest unrelated to expression

11 Grumman is a Rice customer which manufactures military and civilian aircraft for the Navy and other customers. When Grumman learned of the criminal charges against Rice, it impounded its entire inventory of Rice-supplied fasteners. Since then, it has allegedly been unable to sort potentially fraudulent Rice-supplied fasteners from properly tested and authenticated ones. Because its clients, including the Navy, require all parts to be properly tested and authenticated, Grumman contends it cannot use any of its Rice-supplied fasteners. The district court found that Rice's conduct had tainted Grumman's entire inventory and awarded Grumman restitution based on the value of its entire Rice-supplied inventory. 3 12 13 Rice first argues that the restitution award to Grumman was illegal because Grumman's alleged losses were not related to Rice's offense of conviction. See Hughey v. United States, 495 U.S. 411, 413, 110 S.Ct. 1979, 1981, 109 L.Ed.2d 408 (1990) (Under the VWPA, restitution may be awarded only for losses caused by the specific conduct that is the basis of the offense of conviction.); United States v. McHenry, 974 F.2d 1031, 1033 (9th Cir.1992) (In conspiracy and fraud cases, restitution under the VWPA is available only for losses caused by the specific acts of which the defendants were convicted.); United States v. Sharp, 941 F.2d 811, 815 (9th Cir.1991). But see United States v. Hammer, 967 F.2d 339, 340 (9th Cir.1992) (upholding FPA restitution awarded to a fraud victim who did not receive the specific mailings which formed the basis of the defendant's guilty plea and noting that Hughey does not apply to restitution awarded under the FPA). 14 Specifically, Rice contends that it admitted sending false reports with reprocessed parts. However, the district court found Rice stopped sending reprocessed fasteners to Grumman in 1984. Grumman bought the impounded inventory after 1985 and thus, according to Rice, the impounded inventory does not contain any reprocessed fasteners. Rice contends that Grumman can recover restitution only for reprocessed fasteners, and not for its impounded inventory. 15 We disagree. Rice and Rice Aircraft pled guilty not only to reprocessing fasteners but also to sending false test reports. Both Rice and Rice Aircraft specifically admitted paying Hi-Shear employees for test reports during 1986 and 1987 and sending mismatched test reports beginning in 1985 and continuing until at least October 21, 1987 (Count II). In addition, both stated that they knowingly used these test reports to misrepresent to certain fastener purchasers that certain fasteners being sold were identified by, and traceable back to, a particular Hi-Shear manufacturing production lot number with the indicated test results. ER 71-72. These admissions are not limited to reprocessed parts. 16 Rice argues that Grumman cannot prove that any particular part in its inventory was accompanied by a false test report. This argument misstates the issue. Grumman alleges that it cannot use any fasteners without reliable documentation and test reports; a Navy employee confirmed that the Navy will not buy aircraft without such documentation and reports. Thus, the issue is not whether Grumman can prove that any particular documents are false, but whether it can prove to its customers' satisfaction that any particular test reports and documentation are valid. 17 According to Grumman, it attempted to obtain such proof: it contacted Hi-Shear and attempted to determine which parts were traceable. However, it found that, because of Rice's false documentation, Grumman could not accurately trace Rice's fasteners. In support of this argument, Grumman presented affidavits documenting various suspicious paperwork including mismatched numbering and purchase orders which did not correspond to actual inventory. See, e.g., Second Affidavit of Ernest Frank. Rice admits sending purchase orders which did not correspond to actual inventory. 18 The district court's finding that, because of Rice's fraudulent paperwork, Grumman cannot prove to its customers' satisfaction that its Rice-supplied parts meet industry standards was not clear error. To the extent that the victim is unable to determine which merchandise is safe and which is not because of the very fraudulent conduct of which the defendant was convicted, a district court acts well within its discretion in awarding restitution for the entire value of the contaminated merchandise which cannot be resold. Cf. United States v. Seligsohn, 981 F.2d 1418, 1421 (3rd Cir.1992) (upholding insurance fraud award for fraudulent claims even though some of the defendant's claims were legitimate where the defendant's own fraudulent conduct prevented the victim from distinguishing between legitimate and fraudulent payments). 19 20 Rice next contends that the restitution award was too speculative and remote, emphasizing that not all damages cognizable in a civil action can be awarded as restitution. See United States v. Salcedo-Lopez, 907 F.2d 97, 98 (9th Cir.1992) (disallowing restitution for the costs of investigation and prosecution); United States v. Kenney, 789 F.2d 783, 784 (9th Cir.) (no restitution for salaries of trial witnesses), cert. denied, 479 U.S. 990, 107 S.Ct. 586, 93 L.Ed.2d 588 (1986); United States v. Tyler, 767 F.2d 1350, 1351-52 (9th Cir.1985) (no restitution for the decline in the value of stolen timber where the decline was caused by market forces, not the defendant's conduct). 21 These cases are inapposite. Causation is a question of fact, reviewed for clear error. Bunting v. United States, 884 F.2d 1143, 1145 (9th Cir.1989). Here, Rice sent false quality assurances, packed merchandise itself in violation of Grumman requirements, and sent packaging slips which did not correspond to actual merchandise. That such conduct will render one's inventory suspect and make tracing difficult is foreseeable. Grumman's loss is neither remote nor speculative. See, e.g., Kenney, 789 F.2d at 784 (upholding restitution awarded to a bank to cover the cost of removing surveillance film from the bank's security camera); United States v. Koenig, 952 F.2d 267, 274-75 (9th Cir.1991) (upholding restitution for the cost of reprogramming bank computers after defendants had electronically subverted the bank's automatic teller machine). Like the bank which had an obligation to reprogram its computers to protect its customers, Grumman had an obligation to protect its customers (and the public) by not using fasteners which did not comply with industry standards. The district court found that, in order to fulfill its obligation, Grumman had to impound or refuse to use its Rice-supplied inventory. This finding was not clearly erroneous. 22 23 Rice also argues that Grumman's own conduct impeded its efforts to sort potentially fraudulent fasteners from properly documented ones and contends and that, therefor, Rice's conduct did not proximately cause Grumman's loss. In support of this argument, Rice alleges that Grumman's impounded warehouse is poorly organized and notes that Grumman's practice of sending fasteners to another company for color coding impedes tracing. 24 However, whether or not Grumman might have been able to mitigate its damages by keeping better internal records once it received Rice's shipments affords the criminal perpetrator no excuse. A crime victim is not required to mitigate damages. United States v. Soderling, 970 F.2d 529, 534 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2446, 124 L.Ed.2d 663 (1993). The district court did not err in finding that Rice's fraud proximately caused Grumman's loss. Abundant evidence supports its finding. 25 26 Rice also contends that Grumman could have tested the fasteners and argues that Grumman has made no effort to recall aircraft previously built with Rice-supplied fasteners. In support of these arguments, Rice makes a number of inflammatory comments about Grumman's own misconduct, contending that Grumman has been involved in criminal conduct and has accepted fasteners from other companies which have falsified supporting documentation. 27 These arguments and attacks on Grumman's credibility are typical of Rice's effort to evade responsibility. They are also attempts to relitigate the factual issues underlying the restitution award. The district court evidently accepted Grumman's testimony that recalling aircraft with Rice fasteners was unnecessary because unsound fasteners would fail immediately during flight testing. It also accepted Grumman's argument that testing fasteners would be impossible (or prohibitively expensive) due to the mixing of various lots in its warehouses and Rice's own failure to adhere to Grumman's packaging requirements. These findings are not clearly erroneous. 28 29 Rice also argues that the district court improperly considered evidence that Rice sent false packaging slips. Rice contends that, since it pled guilty to falsifying test results, not packaging slips, this conduct was outside the offense of conviction and could not be considered. 30 We review for abuse of discretion a district court's decision regarding the relevancy of evidence. United States v. Schaff, 948 F.2d 501, 505 (9th Cir.1991). No such abuse of discretion occurred here: Grumman introduced the packaging slip issue to explain its inability to trace Rice-supplied fasteners. It submitted evidence that Hi-Shear packaging slips were found in the desk drawer of one of the bribed Hi-Shear employees, that the Hi-Shear employee in question sent Rice packaging slips to enable Rice to indicate that certain fasteners had been packaged by Hi-Shear, when in fact Rice packaged them itself, that Rice obtained a packaging machine in order to package fasteners itself, and that Rice bribed Hi-Shear employees to send fasteners in bulk, so that Rice could package them itself, contrary to Grumman quality control procedures. This evidence was relevant to explain why Grumman could not rely on Rice's packaging slips to determine the origin of its impounded inventory. 31 Rice did not (and does not) dispute the accuracy of this evidence. Rather, on appeal, Rice specifically admits that it sent Grumman packaging slips which did not correspond to any actual shipments and argues that Grumman is double-counting parts by relying on Rice's packing slips. This argument itself supports Grumman's claim that it cannot accurately trace fasteners, and amounts to a request that this court protect Rice from its own fraud. We decline to do so. A company which sends false paperwork in an effort to mislead its customers should not be surprised when it injures itself by its own mendacity. The district court did not abuse its discretion in considering the packaging slip issue as an explanation of Grumman's inability to trace its Rice-supplied inventory and any double-counting caused by Rice's misleading packaging slips is the result of Rice's own fraud. In any event, Rice has not shown that any double-counting occurred. 32 33 Finally, Rice objects that Grumman's impounded inventory includes fasteners purchased after the conspiracy allegedly ended on October 31, 1987. However, Count II, the mail fraud count, alleged that Rice's illegal conduct continued until at least October 31, 1987. The district court therefor did not abuse its discretion in awarding restitution for purchases made in 1988. Moreover, Grumman is apparently unable to sort fasteners by shipment due to the effect of Rice's false packaging slips on Grumman's internal procedures. 4 Given these facts, the district court did not abuse its discretion in calculating restitution based on Grumman's entire inventory.

grumman

8 We consider the propriety of the injunction first, because regardless of whether we affirm or reverse the district court's disposition of the merits of this petition, the injunction operates as a continuing restraint upon appellant's ability to press the claims raised in the petition. We assume arguendo that Hardwick has made rather prodigal use of the privilege of the Great Writ. The question, then, is whether abuse of the opportunity to seek habeas corpus relief is adequate justification for an injunction forbidding relitigation of previously raised claims. 9 In issuing the injunction, the district court relied on its All Writs authority, see 28 U.S.C. § 1651, as interpreted by Kinnear-Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631 (5th Cir. 1971), cert. denied, 404 U.S. 941, 92 S.Ct. 285, 30 L.Ed.2d 255, and International Assoc. of Machinists & Aerospace Workers v. Nix, 512 F.2d 125 (5th Cir. 1975). In Kinnear-Weed, we held that the district court had properly employed All Writs authority to enjoin a private party from further prosecuting issues in a patent infringement suit that had been fully and fairly litigated in the district court and on appeal. We noted, however, that the injunction does no more than embody the principles of res judicata and collateral estoppel. 441 F.2d at 637. In the Nix case, this Court upheld the use of All Writs authority to prevent private relitigation in state court of labor law claims fully and fairly decided in federal court. At the same time, we were careful to point out that the scope of an order prohibiting relitigation must be equal to, but not more than, the scope of the doctrines of res judicata and collateral estoppel. 512 F.2d at 130-132. The lesson of these two cases is that the boundaries of res judicata and collateral estoppel may be protected by an injunction and when necessary to prevent harassment of successful litigants. Accord, Southwest Airlines Co. v. Texas International Airlines, Inc., 546 F.2d 84 (5th Cir. 1977). 10 Neither case, however, is authority for an injunction prohibiting relitigation of claims on habeas corpus, because the doctrines of res judicata and collateral estoppel are not applicable in habeas proceedings. At common law, there was no limit on the number of times a prisoner might attempt to obtain relief via habeas corpus. Sanders v. United States, 373 U.S. 1, 7-14, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). And in the landmark case of Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989 (1924), the Supreme Court confirmed that no such limitation would be enforced in the federal courts. Salinger had previously litigated the merits of his claim in one habeas proceeding and had lost. When he raised the same issue in two separate and additional habeas actions, the Government contended that Salinger's defeat in the first suit barred reconsideration of the issue under the principles of res judicata. A unanimous Supreme Court held: 11 At common law the doctrine of res judicata did not extend to a decision on habeas corpus refusing to discharge the prisoner. . . . (T)his Court has conformed to (that rule) and thereby sanctioned it, although announcing no express decision on the point. . . . we regard the rule as well established . . . . (E)ach application is to be disposed of in the exercise of a sound judicial discretion. 12 265 U.S. at 230-31, 44 S.Ct. at 521. 13 But the Salinger Court also held that habeas courts need give no more than summary consideration to repetitive petitions, see 265 U.S. at 231-32, 44 S.Ct. 519, and applied that rule the same day in the case of Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924). In Wong Doo the petitioner sought habeas corpus on a ground that he had alleged in a prior petition but failed to prove at a hearing. The Court held it was proper to deny relief where 14 (t)he petitioner had full opportunity to offer proof of (the claim) at the hearing on the first petition; and, if he was intending to rely on that ground, good faith required that he produce the proof then. To reserve the proof for use in attempting to support a later petition, if the first failed, was to make an abusive use of the writ of habeas corpus. 15 265 U.S. at 241, 44 S.Ct. at 525. 16 The Supreme Court's more recent decisions make it clear that a state prisoner is not limited as to the number of times he may seek habeas relief in the federal courts. See, e. g., Preiser v. Rodriguez, 411 U.S. 475, 497, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963) (Simply because detention obtained (in contravention of the constitution) is intolerable, the opportunity for redress, which presupposes the opportunity to be heard, to argue and present evidence, must never be totally foreclosed.); Fay v. Noia, 372 U.S. 391, 422-23, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). When a prisoner's actions constitute an abuse of the writ, the remedy is to deny him relief on subsequent applications, not to enjoin him from bringing those applications. See Sanders v. United States, 373 U.S. 1, 10-11, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948). 17 This Court has consistently interpreted the habeas corpus statutes as imposing no numerical limits on a state prisoner's access to the federal courts. See, e. g., Weaver v. Texas, 474 F.2d 1135, 1138 (5th Cir. 1973); Harris v. Wainwright, 470 F.2d 190, 191 (5th Cir. 1972); Pritchard v. Henderson, 440 F.2d 660, 660-661 (5th Cir. 1971); accord, Wilwording v. Swenson, 502 F.2d 844, 848-49 (8th Cir. 1974). Instead, we have held that summary consideration of a petition is the appropriate remedy when an applicant seeks to relitigate a claim. See, e. g., Boles v. Beto, 379 F.2d 614, 614 (5th Cir. 1967); Johnson v. Massey, 516 F.2d 1001, 1002 (5th Cir. 1957); accord, Tannehill v. Fitzharris, 451 F.2d 1322, 1323 (9th Cir. 1971). In these circumstances, to equate the filing of successive petitions with an abuse of habeas is to misunderstand the extraordinary nature of the writ. The doors of the federal courts are never closed to habeas petitioners, but importunate claims of state prisoners need not be entertained, section 2244(b) tells us, unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ. This power of summary disposition furnishes ample defense against paper bombardments. An injunction, backed by the contempt sanction, is not only unnecessary; it is also undesirable because it may deter a prisoner from bringing other, meritorious claims or from working to substantiate a previously raised claim. Cf. Farnsworth v. Zerbst, 98 F.2d 541, 543 (5th Cir. 1938) (denying relief because facts did not prove allegation, but recognizing petitioner's right to make a better presentation of it on another petition, since res judicata is not strictly applied in habeas corpus cases.). 18 We hold that the injunction must be vacated in its entirety. All Writs authority is, after all, limited to the issuance of writs agreeable to the usages and principles of law, 28 U.S.C. § 1651, and in determining that compatibility, federal courts look first to the common law, United States v. Hayman, 342 U.S. 205, 221 n. 35, 72 S.Ct. 263, 273, 96 L.Ed. 232 (1952). Common law practice, Supreme Court decisions, and the habeas corpus statutes as interpreted by this Court compel the conclusion that a federal court injunction barring future habeas petitions cannot be sustained without risking a violation of the Suspension Clause. Cf. Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803) (despite statute authorizing Supreme Court to issue writs of mandamus, Court could not issue writ where to do so would violate constitutional allocation of original and appellate jurisdiction).

res judicata and habeas corpus

The district court stated that: 161 Were CA's [trade secret] allegations premised on a theory of illegal acquisition of a trade secret, a charge that might have been alleged against Arney, who is not a defendant in this case, the preemption analysis might be different, for there seems to be no corresponding right guaranteed to copyright owners by § 106 of the copyright act. 162 Computer Assocs., 775 F.Supp. at 565. However, the court concluded that CA's trade secret claims were not grounded in a theory that Altai violated a duty of confidentiality to CA. Rather, Judge Pratt stated that CA proceeded against Altai solely on a theory that the misappropriation took place by Altai's use of ADAPTER--the same theory as the copyright infringement count. Id. The district court reasoned that the right to be free from trade secret misappropriation through 'use', and the right to exclusive reproduction and distribution of a copyrighted work are not distinguishable. Id. Because he concluded that there was no qualitative difference between the elements of CA's state law trade secret claims and a claim for federal copyright infringement, Judge Pratt ruled that CA's trade secret claims were preempted by section 301. 163 We agree with CA that the district court failed to address fully the factual and theoretical bases of CA's trade secret claims. The district court relied upon the fact that Arney--not Altai--allegedly breached a duty to CA of confidentiality by stealing secrets from CA and incorporating those secrets into OSCAR 3.4. However, under a wrongful acquisition theory based on Restatement (First) of Torts § 757 (1939), Williams and Altai may be liable for violating CA's right of confidentiality. Section 757 states in relevant part: 164 One who discloses or uses another's trade secret, without a privilege to do so, is liable to another if.... (c) he learned the secret from a third person with notice of the fact that it was a secret and that the third person discovered it by improper means or that the third person's disclosure of it was otherwise a breach of his duty to the other.... 165 Actual notice is not required for such a third party acquisition claim; constructive notice is sufficient. A defendant is on constructive notice when, from the information which he has, a reasonable man would infer [a breach of confidence], or if, under the circumstances, a reasonable man would be put on inquiry and an inquiry pursued with reasonable intelligence and diligence would disclose the [breach]. Id., comment 1; Metallurgical Indus., Inc. v. Fourtek, Inc., 790 F.2d 1195, 1204 (5th Cir.1986); Vantage Point, Inc. v. Parker Bros., Inc., 529 F.Supp. 1204, 1210 n. 2 (E.D.N.Y.1981), aff'd, 697 F.2d 301 (2d Cir.1982); see also Rohm and Haas Co. v. Adco Chem. Co., 689 F.2d 424, 431 (3rd Cir.1982) (Defendants never asked where the 'Harvey process' had come from. Defendants therefore were charged 'with whatever knowledge such inquiry would have led to.' ) (citation omitted); Colgate-Palmolive Co. v. Carter Prods., Inc., 230 F.2d 855, 864 (4th Cir.) (per curiam) (defendant 'must have known by the exercise of fair business principles' that its employee's work was covered by an agreement not to disclose) (citation omitted), cert. denied, 352 U.S. 843, 77 S.Ct. 43, 1 L.Ed.2d 59 (1956); 1 Milgrim § 5.04[c]. 166 We agree with the district court that New Jersey's governing governmental interest choice of law analysis directs the application of Texas law to CA's trade secret misappropriation claim. See Computer Assocs., 775 F.Supp. at 566. Texas law recognizes trade secret misappropriation claims grounded in the reasoning of Restatement section 757(c), see, e.g., Fourtek, 790 F.2d at 1204, and the facts alleged by CA may well support such a claim. 167 It is undisputed that, when Arney stole the ADAPTER code and incorporated it into his design of OSCAR 3.4, he breached his confidentiality agreement with CA. The district court noted that while such action might constitute a valid claim against Arney, CA is the named defendant in this lawsuit. Additionally, the district court found, as a matter of fact, that [n]o one at Altai, other than Arney, knew that Arney had the ADAPTER code.... Computer Assocs., 775 F.Supp. at 554. However, the district court did not consider fully Altai's potential liability for improper trade secret acquisition. It did not consider the question of Altai's trade secret liability in connection with OSCAR 3.4 under a constructive notice theory, or Altai's potential liability under an actual notice theory in connection with OSCAR 3.5. 168 The district court found that, prior to CA's bringing suit, Altai was not on actual notice of Arney's theft of trade secrets, and incorporation of those secrets into OSCAR 3.4. However, by virtue of Williams' close relationship with Arney, Williams' general familiarity with CA's programs (having once been employed by CA himself), and the fact that Arney used the ADAPTER program in an office at Altai adjacent to Williams during a period in which he had frequent contact with Williams regarding the OSCAR/VSE project, Williams (and through him Altai) may well have been on constructive notice of Arney's breach of his duty of confidentiality toward CA. The district court did not address whether Altai was on constructive notice, thereby placing it under a duty of inquiry; rather the court's finding that only Arney affirmatively knew of the theft of CA's trade secrets and incorporation of those secrets into OSCAR 3.4 simply disposed of the issue of actual notice in connection with the creation of OSCAR 3.4. CA's claim of liability based on constructive notice, never considered in the district court's opinion, must be determined on remand. 169 With respect to actual notice, it is undisputed that CA's first complaint, filed in August 1988, informed Altai of Arney's trade secret violations in connection with the creation of OSCAR 3.4. The first complaint alleged that Arney assisted in the development of ADAPTER, thereby obtaining knowledge of CA's related trade secrets. It also alleged that Altai misappropriated CA's trade secrets by incorporating them into ZEKE. 170 In response to CA's complaint, Altai rewrote OSCAR 3.4, creating OSCAR 3.5. While we agree with the district court that OSCAR 3.5 did not contain any expression protected by copyright, it may nevertheless still have embodied many of CA's trade secrets that Arney brought with him to Altai. Since Altai's rewrite was conducted with full knowledge of Arney's prior misappropriation, in breach of his duty of confidentiality, it follows that OSCAR 3.5 was created with actual knowledge of trade secret violations. Thus, with regard to OSCAR 3.5, CA has a viable trade secret claim against Altai that must be considered by the district court on remand. This claim is grounded in Altai's alleged use of CA's trade secrets in the creation of OSCAR 3.5, while on actual notice of Arney's theft of trade secrets and incorporation of those secrets into OSCAR 3.4. The district court correctly stated that a state law claim based solely upon Altai's use, by copying, of ADAPTER's non-literal elements could not satisfy the governing extra element test, and would be preempted by section 301. However, where the use of copyrighted expression is simultaneously the violation of a duty of confidentiality established by state law, that extra element renders the state right qualitatively distinct from the federal right, thereby foreclosing preemption under section 301. 171 We are also convinced that CA adequately pled a wrongful acquisition claim before Judge Mishler and Judge Pratt. In ruling that CA failed to properly plead a non-preempted claim, Judge Pratt relied heavily upon two allegations in CA's amended complaint. Id. at 563-64. They read as follows: 172 p 57. By reason of the facts stated in paragraph 39 and by copying from CA-SCHEDULER into ZEKE, ZACK and ZEBB the various elements stated in paragraphs 39-51, 54 and 55, defendant Altai has infringed [CA's] copyright in CA-SCHEDULER. 173

Preemption in this Case

As noted earlier, the plain language of the policy provides that a person is “disabled” from her own occupation if she is unable to perform each of the material duties of the occupation that she regularly performed for her employer. R.115 at 227. Notably, Provident informed Ms. Houston that she was ineligible for disability benefits under the policy because “[t]he physical capacity findings indicate you have the ability to perform not only your own occupation as a legal secretary but also many other sedentary jobs.” R.115 at 3 163-64. Provident maintains, and we agree, that its determination had a reasonable basis when Dr. Ryan and Dr. Suk, both orthopedic specialists, had documented that Ms. Houston’s back injury did not functionally limit her ability to perform the material duties of her occupation. Ms. Houston and the district court consider Dr. Ryan’s opinion the least reliable because he did not account for the results of the MRI exam (his evaluation preceded the MRI). However, as Provident submits, the MRI merely aided the diagnosis of a herniated disc, and the record offers insufficient objective documentation that this medical condition rendered Ms. Houston unable to perform sedentary work. Thus, the absence of the MRI is not fatal to Dr. Ryan’s functional capacity test. Sim- 3 Provident’s ERISA appeals committee denied Ms. Houston’s claim as supplemented on the same grounds—neither her vision problem nor depression rendered her unable to perform her own occupation. R.115 at 102-17; 168-69. No. 03-2776 11 ilarly, although Dr. Suk suspected Ms. Houston of having herniated discs and suggested further neurological evaluation, he more importantly found her capable of a wide range of work activity. Dr. Suk’s physical capacities form indicated that, over a full workday, Ms. Houston could stand, walk, sit and drive without restriction; occasionally lift up to ten pounds; use her hands for grasping, fine manipulation and repetitive motion (but not for pushing or pulling); occasionally bend, squat, kneel and balance; and frequently 4 use a foot control. Further, the form cleared her for light duty work pending neurological evaluation. In sum, we believe that the record here leads firmly to the conclusion that Provident reasonably concluded that Ms. Houston was not “disabled” as defined in the policy based upon Dr. Ryan’s and Dr. Suk’s evaluation that she had the functional capacity to perform the material duties of her occupation. See Blickenstaff, 378 F.3d at 678 (holding that plan administrator reasonably terminated benefits based upon functional capacity evaluation); Sisto v. Ameritech 4 Sidley & Austin’s job description for legal secretaries, a part of the administrative record, is worth noting; it lists the “essential duties” as: (1) using word processing; (2) organizing court filings, clerical functions and work flow; (3) inputing attorney daily time; (4) coordinating attorney travel arrangements and maintaining travel expenses; (5) proofreading documents; (6) receiving and transmitting telephone calls, conference calls and messages; (7) processing mail; (8) coordinating meetings and appointments for attorneys and clients; (9) maintaining attorney calendars; (10) coordinating prompt production and delivery of legal work; (11) obtaining cases from the library; (12) maintaining client and other files; (13) performing secretarial functions, such as processing new client/matter reports and expense reports. In addition, the job description states that Sidley & Austin would make “[r]easonable accommodations” to enable employees to perform those essential duties. R.115 at 29. 12 No. 03-2776 Sickness & Accident Disability Benefit Plan, No. 01 C 8262, 2003 WL 22472022, at -7, 9 (N.D. Ill. Oct. 31, 2003) (finding reasonable basis for denial of disability benefits even though MRI found two herniated cervical discs, because medical consultants concluded that the medical records did not establish that claimant was unable to perform any work); Rivera v. Bd. of Trustees, No. 02 Civ. 7844, 2003 WL 21710763, at , 9 (S.D.N.Y. July 23, 2003) (finding that denial of disability benefits was reasonable even though claimant’s physician diagnosed him with a herniated disc and concluded that he was totally disabled, because independent medical examiner concluded that condition was not so severe as to limit all work-related activity), aff’d, 2004 WL 287154, at (2d Cir. Feb. 12, 2004) (holding that substantial evidence supported the denial of benefits, including examining physician’s conclusion that claimant could return to work).

Benefits Termination Decision