242 F.3d 1070 (D.C. Cir. 2001)
Dynaquest Corp., d/b/a A.C.L., et al.,  Appellantsv.United States Postal Service,  Appellee
No. 99-5326
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2000Decided March 13, 2001

Appeal from the United States District Court  for the District of Columbia (No. 98cv00564)
Max Kravitz argued the cause for appellants.  With him on  the briefs was David B. Smith.
David T. Smorodin, Assistant U.S. Attorney, argued the  cause for appellee.  With him on the brief were Wilma A.  Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.  Attorney.
Before:  Henderson, Randolph and Garland, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:

1
Dynaquest Corp. seeks the release of funds held in escrow in connection with administrative proceedings brought against the company by the United  States Postal Service.  Various incarnations of Dynaquest's  claims have been heard by numerous courts--including this  court and the United States Court of Appeals for the Sixth  Circuit--over a period spanning ten years.  We conclude that  Dynaquest's present efforts to obtain the funds are barred by  the doctrine of res judicata and affirm the district court's  dismissal of Dynaquest's complaint.

2
* Dynaquest, an Ohio corporation, buys and sells discontinued lines, unwanted special order items, liquidated goods, and  other "distressed merchandise."  It also mails unsolicited  advertisements for a training program, which includes a  manual entitled Liquidate Your Way to a Fortune, instructing purchasers in the business of asset location and liquidation.

3
On June 7, 1990, the Postal Service filed an administrative  complaint against the company before a Postal Service Administrative Judicial Officer (AJO) in Washington, D.C.  The  complaint charged Dynaquest with "conducting a scheme for  obtaining money or property through the mail by means of  false representations," in violation of 39 U.S.C. § 3005.  Postal Service Compl. at 1 (J.A. at 54).  The complaint alleged  that the company's mailings contained eleven false representations.1  Eight days later, the Postal Service filed a separate action in the United States District Court for the Southern  District of Ohio, pursuant to 39 U.S.C. § 3007, seeking a  temporary restraining order and preliminary injunction directing the detention of Dynaquest's mail pending the resolution of the § 3005 administrative proceedings.  Section 3007  authorizes the district court in the district in which a defendant receives its mail to enter such interim relief.  39 U.S.C.  § 3007(a).

4
The Ohio district court issued a temporary restraining  order under § 3007, directing the Postal Service to hold all  checks and accompanying information mailed in response to  the Dynaquest advertisements, and scheduled a hearing on  the Postal Service's motion for a preliminary injunction for  June 21, 1990.  Prior to commencement of the hearing, the  parties entered into--and the court approved--an "Agreed  Order."  The Agreed Order required that all checks and  applications be returned to prospective customers, along with  a "bounce-back" letter "clarifying" Dynaquest's offer and  asking whether the customers still wished to purchase Dynaquest's services.  Agreed Order at 1-2 (J.A. at 51-52).  The  Order further directed the Postal Service to forward any  checks sent by customers who had received bounce-back  letters to a co-administered escrow account.  Finally, the  parties stipulated that the Agreed Order would remain in  effect until "the final disposition of the administrative complaint," id. at 1 (J.A. at 51), which would "be deemed to occur  after the conclusion of any appeal by [Dynaquest] from the  ... decision of the Postal Service Judicial Officer," id. at 2-3  (J.A. at 52-53).

5
Following entry of the Agreed Order, the parties proceeded  to litigate the § 3005 proceeding in Washington, D.C., and  then returned to Ohio to litigate the § 3007 proceeding.  In  1996, Dynaquest once again went to Washington to file the  pleadings that led to the instant appeal.  We describe each of these three courses of litigation below, in order to provide the  background necessary to understand our disposition of this  case.

6
* During the summer of 1990, the AJO conducted a full trial type hearing in the § 3005 proceeding in Washington, D.C. Following the hearing, the AJO concluded that Dynaquest  had violated the statute by making four of the materially false  representations alleged in the Postal Service's complaint.  In  re A.C.L., P.S. Docket No. 36/90 (U.S. Postal Serv. Dec. 28,  1990).  Dynaquest was ordered to cease and desist from  making those representations.

7
On March 18, 1991, Dynaquest moved for reconsideration  of the AJO's decision, challenging the false representation  findings and requesting the release of the funds held in  escrow.  Resp't Mot. for Recons. (J.A. at 259).  With respect  to the latter request, Dynaquest argued that because the  escrow funds were sent by customers who had received the  bounce-back letters, any initial misrepresentations had been  cured.  Thus, Dynaquest argued, it would be unjust to deprive the company of those funds.  Id. at 12-16 (J.A. at 27074).

8
The AJO denied Dynaquest's motion in its entirety.  In re  A.C.L., P.S. Docket No. 36/90 (U.S. Postal Serv. May 15,  1991).  He rejected the company's challenges to the false  representation findings, and dismissed the request for the  release of funds on the ground that the escrow accounts had  been established under the Agreed Order of the district court  in Ohio.  Only that court, the AJO held, had jurisdiction over  the interpretation and enforcement of its own Order.  Id. at  4.

9
Dynaquest sought review of the AJO's decisions in the  United States District Court for the District of Columbia,  pursuant to the Administrative Procedure Act, 5 U.S.C.  §§ 701-706 (1994).  It sought a declaratory judgment that the  false representation findings were not supported by substantial evidence and an injunction against enforcement of the AJO's order.  Dynaquest did not, however, reassert its claim  that the bounce-back letters had cured any alleged misrepresentations, nor did the company otherwise appeal the AJO's  determination that he lacked jurisdiction over the escrow  funds.  On cross motions for summary judgment, the district  court affirmed the AJO's findings regarding three of the four  representations, vacated the fourth, and sustained the Postal  Service's order.  Dynaquest Corp. v. United States Postal  Serv., No. 91-1582 (D.D.C. Mar. 5, 1992).  Dynaquest appealed to this court, contending that two of the three findings  upheld by the district court were not supported by substantial  evidence.  We affirmed the district court's decision on January 18, 1994.  Dynaquest Corp. v. United States Postal Serv.,  12 F.3d 1144 (D.C. Cir. 1994).  Dynaquest did not seek  further review.

B

10
In early 1994, the parties filed cross motions for summary  judgment in the still-pending § 3007 proceeding in the Southern District of Ohio, seeking to resolve the disposition of the  escrow funds.  On June 2, 1994, the district court granted  judgment for the Postal Service and directed that the funds  be returned to Dynaquest's customers.  United States Postal  Serv. v. Klass, No. C2-90-450, slip op. at 9, 11 (S.D. Ohio  June 2, 1994).  The court interpreted the language of the  Agreed Order to require that, upon final disposition of the  administrative complaint, the funds were to go to the party  prevailing in the § 3005 proceeding in Washington.  Id. at 9. This interpretation was confirmed, the court said, by statements of Dynaquest's counsel at a status conference held in  the § 3007 proceeding in February 1992.  Id. at 9-10.  In  light of this circuit's affirmance of the AJO's findings of  misrepresentation, and Dynaquest's failure to seek further  review, the Ohio district court concluded that final disposition  of the § 3005 administrative complaint had occurred and that  the Postal Service was the prevailing party.  Id. at 8-9.  The  court rejected as irrelevant Dynaquest's claim that the  bounce-back letters had cured the misrepresentations.  Section 3007 did not give it authority to make such a determination, the court said.  Whether customers were misled was a  question for the § 3005 proceeding, and that proceeding was  now closed.  Id. at 9-10.

11
Dynaquest appealed the Ohio district court's refusal to  award it the escrow funds to the United States Court of  Appeals for the Sixth Circuit.  The company made two  principal points.  First, it argued that the district court erred  in not determining whether the bounce-back letters cured the  misrepresentations.  The Sixth Circuit rejected this argument, holding that the district court was indeed without  authority to decide, in a § 3007 proceeding, whether the  bounce-back letters violated the false representations statute. That, the court said, could only have been decided in the  § 3005 proceeding in Washington, and Dynaquest should  have amended its administrative pleadings to raise the issue  there.  United States Postal Serv. v. Klass, 74 F.3d 1241,(6th Cir.1996) ("Section 3007  specifies that the district court issuing the injunction has no  authority to 'determine any fact at issue in the statutory  proceeding.' " (quoting 39 U.S.C. § 3007(a) (repealed 1999))).

12
Second, Dynaquest argued that the district court erred in  construing the Agreed Order to require disposition of the  escrow funds to the victor in the § 3005 proceeding.  Moreover, the company insisted, the court further erred in interpreting its counsel's statements as confirming that view. Once again, the Sixth Circuit disagreed, this time on the  merits:

13
[F]orwarding the money to Dynaquest would violate the intent of the parties when they entered into the agreement.  Statements from the injunction hearing indicate the parties' understanding that Dynaquest would not receive the funds unless it prevailed on all of the claims of misrepresentation.  The record clearly demonstrates Dynaquest's expectation that it would not receive the escrowed funds unless it prevailed.

14
Id. (citation omitted).  By the terms of the Agreed Order, the  Sixth Circuit held, Dynaquest could not obtain the escrow  funds unless it defeated all of the allegations of misrepresentation.  Id. Because Dynaquest had not, the court affirmed  the award of the escrow funds to the Postal Service.  Id. at  *3.2

C

15
On June 19, 1996, Dynaquest returned to Washington to  file a motion with the AJO seeking, inter alia, an order  directing release of the escrow funds.  Dynaquest argued  that the Postal Service did not have authority under the  AJO's original order to return remittances to those who had  received bounce-back letters.  Dynaquest Mot. at 16 (J.A. at  35).  Dynaquest also argued that it had never received a  hearing on the merits of its claim that it was entitled to the  escrow funds because the bounce-back procedures had cured  any misrepresentations in its initial solicitations.  Id.

16
On December 30, 1997, the AJO denied Dynaquest's request.  In re A.C.L., P.S. Docket No. 36/90 (U.S. Postal Serv.  Dec. 30, 1997).  The AJO held that "the disposition of the  escrowed funds is essentially a question of interpreting the  provisions of the Agreed Order that was negotiated by the  parties and issued by the United States District Court for the  Southern District of Ohio."  Id. at 5.  That court, the AJO  said, had concluded that Dynaquest "had failed to prevail in  the § 3005 proceedings, and that under the terms of the  Agreed Order the funds held in escrow were to be returned  to the consumers who had ordered [Dynaquest's] materials."  Id.  Moreover, the AJO stressed, the Sixth Circuit had  affirmed the district court's order, concluding that Dynaquest  was "precluded from receiving the escrowed funds by the  terms of the Agreed Order that [it] entered into."  Id. at 5-6. Dynaquest's current motion was, therefore, "in effect, a collateral attack on the judgments of those two courts and seeks  to have the Judicial Officer overrule the courts and direct that  the funds held in escrow be paid" to Dynaquest.  Id. at 6. That, the AJO concluded, he did "not have the authority to  do."  Id.

17
On March 5, 1998, Dynaquest sought review of the AJO's  decision in the United States District Court for the District of  Columbia.  On August 2, 1999, the district court found that  Dynaquest's motion for release of the escrow funds was  barred by the res judicata effect of the initial, 1990 proceeding before the AJO.  "Dynaquest's claim that any false  representations in its solicitations were cured by the bounceback letters," the court said, "was within the purview of the  [1990] administrative proceeding.  Dynaquest's failure to litigate this issue constitutes a waiver of its right to raise it in  subsequent proceedings."  Dynaquest Corp. v. United States  Postal Serv., No. 98-0564, slip op. at 5-6 (D.D.C. Aug. 2,  1999) (citations omitted).  On September 27, 1999, Dynaquest  filed a notice of appeal.3

II

18
Although the course that led the parties to this court was a  tortuous one, disposition of this appeal is not equally difficult. The United States District Court for the Southern District of  Ohio concluded that, by the terms of the Agreed Order  approved by that court, Dynaquest was not entitled to the  escrow funds.  The Sixth Circuit agreed, holding that "the  intent of the parties when they entered into" the Agreed  Order was that "Dynaquest would not receive the [escrow]  funds unless it prevailed on all of the claims of misrepresentation."  Dynaquest, 1996 WL 20504, at *2.  Because Dynaquest had not prevailed on all of the misrepresentation  claims, the Sixth Circuit affirmed the award of the funds to  the Postal Service.  Id. at *3.  Dynaquest sought no further  review.

19
The Sixth Circuit's ruling is a final decision on the merits. The AJO correctly concluded that he was bound by that  decision under the doctrine of res judicata.  See Allen v.  McCurry, 449 U.S. 90, 94 (1980) ("Under res judicata, a final  judgment on the merits of an action precludes the parties or  their privies from relitigating issues that were or could have  been raised in that action.");  Commissioner v. Sunnen, 333  U.S. 591, 601 (1948).4  This court is likewise so bound. Although Dynaquest argues, vehemently, that the Sixth Circuit misconstrued both the language of the Agreed Order and  the statements of its counsel, those issues are foreclosed from  our consideration.  See Federated Dep't Stores, Inc. v. Moitie,  452 U.S. 394, 398 (1981) ("Nor are the res judicata consequences of a final, unappealed judgment on the merits altered  by the fact that the judgment may have been wrong...."). The place for Dynaquest to have raised those concerns was in  a petition for rehearing en banc to the Sixth Circuit, or in a  petition for certiorari to the United States Supreme Court. This circuit, however, has no authority to collaterally review  the decisions of a sister circuit.  See id. ("A judgment merely  voidable because based upon an erroneous view of the law is  not open to collateral attack, but can be corrected only by a  direct review...." (citation omitted));  Fort Sumter Tours,  Inc. v. Babbitt, 202 F.3d 349, 354 (D.C. Cir. 2000).

20
Dynaquest further contends that res judicata cannot bar its  claim regarding the curative effect of the bounce-back letters,  because neither the Sixth Circuit nor the Southern District of  Ohio decided that claim on the merits.  Rather, Dynaquest  notes, those courts merely held themselves without authority  to decide the claim, on the ground that only the AJO in the  § 3005 proceeding had such authority.  See 18 Wright, Miller, & Cooper § 4402, at 11 ("Dismissal of a suit for want of  federal subject matter jurisdiction, for example, should not  bar an action on the same claim in a court that does have  subject matter jurisdiction....").  Moreover, Dynaquest continues, both the Sixth Circuit and the district court in the  present litigation erred in stating that the company had not  raised the issue before the AJO.  As Dynaquest correctly  points out, it did raise the issue in its 1991 motion for  reconsideration, where it was met by the AJO's ruling that he  lacked jurisdiction to decide the question.  See In re A.C.L.,  P.S. Docket No. 36/90, slip op. at 4 (U.S. Postal Serv. May 15,  1991);  Resp't Mot. for Recons. at 16 (J.A. at 274).

21
Unfortunately for Dynaquest, whatever the validity of its  arguments about the merits of the bounce-back cure, or about  our jurisdiction to resolve that issue, those arguments are  now moot.  Their only relevance in the present case is to the  question of whether the escrow funds should be released to  Dynaquest.  But the Sixth Circuit has already construed the  Agreed Order to bar release of the escrow to Dynaquest-irrespective of any bounce-back cure--because three of the  company's initial representations were found to have been  false.  Accordingly, resolving the bounce-back question would  have no impact on disposition of the escrow funds.  And  because a favorable judicial decision on the bounce-back  question would not bring Dynaquest the redress it seeks, we  are without authority to adjudicate the issue.  See Iron  Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70 (1983) ("To  satisfy the Art. III case-or-controversy requirement, a litigant must have suffered some actual injury that can be  redressed by a favorable judicial decision.");  see also Spencer  v. Kemna, 523 U.S. 1, 7 (1998);  United States Parole  Comm'n v. Geraghty, 445 U.S. 388, 404 (1980);  FDIC v.  Kooyomjian, 220 F.3d 10, 14-15 (1st Cir. 2000).5

22
Finally, Dynaquest contends, for the first time on this  appeal, that the decision of the AJO below is invalid because  Postal Service AJOs are appointed in violation of the Appointments Clause of the U.S. Constitution.  U.S. Const. art. II,   2, cl. 2.  Although we normally would not permit a litigant  to present a legal theory that it failed to raise below, see  Grant v. United States Air Force, 197 F.3d 539, 542 (D.C.  Cir. 1999), courts have discretion to consider Appointments  Clause challenges raised for the first time on appeal, see  Freytag v. Commissioner, 501 U.S. 868, 878-79 (1991).6  But  as was true of the bounce-back issue, a victory on its Appointments Clause challenge would not advance Dynaquest's  cause.  In the decision presently on appeal, the AJO held  nothing more than that he was without authority to grant  Dynaquest's motion for release of the escrow funds.  He  based that holding on his conclusion that the Sixth Circuit's  ruling--that the district court's Agreed Order precluded such  release--bound him by the force of res judicata.  As we have  just held, the AJO's resolution of this legal question was  correct.  No AJO, regardless of the validity of his appointment, would have authority to decide the issue otherwise. Indeed, the same is true of this Article III court.  Accordingly, resolution of the Appointments Clause issue in Dynaquest's favor would bring the company no relief and would  amount to nothing more than an advisory opinion.  Issuance  of such an opinion is, of course, beyond our power under  Article III.  See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998);  Hewitt v. Helms, 482 U.S. 755,  761 (1987).7

IV

23
The Sixth Circuit interpreted the district court's Agreed  Order as requiring that the escrow funds be awarded to the  Postal Service.  That holding is res judicata and may not be  collaterally attacked in this court.  Moreover, because that  holding leaves Dynaquest without a remedy even if it were to  obtain a favorable ruling on the additional claims it raises  here, we are without authority to adjudicate those claims. The district court's dismissal of Dynaquest's complaint is  therefore

24
Affirmed.

Notes:

1
  As discussed below, three of the eleven allegations were  ultimately upheld on appeal.  Dynaquest Corp. v. United States  Postal Serv., 12 F.3d 1144 (D.C. Cir. 1994). Those allegations  charged that Dynaquest falsely represented it would:  (1) "assist  purchasers of [its] program to earn ... thousands of dollars without  the need ... to make any additional payments to  [Dynaquest]," (2) "pay a hundred dollars ($100.00) in cash to any addressee who  purchases [the] program," and (3) "provide purchasers of the program with comprehensive training in the merchandise liquidation  field."  Postal Service Compl. pp 10(d), (g), (i) (J.A. at 56-57).

2
  Although the Southern District of Ohio stated that the escrow  funds should be returned to Dynaquest's customers, the Sixth  Circuit described the district court's order as awarding the funds to  the Postal Service.  The Postal Service has indicated that once it  gains possession of the funds, it intends to release them to the  customers.  Further action regarding release of the funds has been  stayed, however, pending resolution of this appeal.

3
  We note that 39 U.S.C. § 3007 was subsequently amended on  December 12, 1999, effective 120 days later, to provide:  "If any  order is issued under [§ 3007(a)] and the proceedings under section  3005 are concluded with the issuance of an order under that section,  any judicial review of the matter shall be in the district in which the  order under [§ 3007(a)] was issued."  39 U.S.C. § 3007(b).

4
  We use "res judicata" in its generic sense to include the  concepts of both issue preclusion (also known as "collateral estoppel") and claim preclusion.  Because the meaning and effect of the  Agreed Order were litigated by the parties and decided by the  court, issue preclusion is the specific concept at work here.  See  Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1  (1984);  18 Charles Alan Wright, Arthur R. Miller, & Edward H.  Cooper, Federal Practice and Procedure § 4402, at 6-8 (1981).

5
  Resolution of the bounce-back question is also barred by the  doctrine of res judicata as a result of Dynaquest's failure to appeal  the AJO's jurisdictional ruling in 1991.  As Dynaquest notes, it  raised the bounce-back issue in its 1991 motion for reconsideration  before the AJO.  In his decision on that motion, the AJO ruled both  that Dynaquest's initial representations were false and that he  lacked jurisdiction over the bounce-back issue.  Although Dynaquest's appeal of the AJO's order challenged the former ruling, it  did not challenge the AJO's conclusion that he was without jurisdiction to decide the bounce-back question.  Accordingly, that issue is  now res judicata between the parties.  See Allen, 449 U.S. at 94  ("Under res judicata, a final judgment on the merits of an action  precludes the parties or their privies from relitigating issues that  were or could have been raised in that action." (emphasis added)); Dozier v. Ford Motor Co., 702 F.2d 1189, 1191 (D.C. Cir. 1983)  ("[T]he doctrine of res judicata applies to dismissal for lack of  jurisdiction as well as for other grounds....");  2 Kenneth Culp  Davis & Richard J. Pierce, Jr., Administrative Law Treatise  § 13.3, at 250 (3d ed. 1994) (noting that res judicata applies to  administrative as well as judicial adjudications, and to questions of  law as well as fact).

6
  We may not, however, consider challenges to the validity of  the AJO's 1990 and 1991 decisions, which were affirmed by this  court in 1994 and are no longer open to attack.  Cf. Baltimore S.S.  Co. v. Phillips, 274 U.S. 316, 325 (1927) ("A judgment merely  voidable because based upon an erroneous view of the law is not  open to collateral attack, but can be corrected only by a direct  review and not by bringing another action upon the same cause."); 18 Wright, Miller, & Cooper § 4428, at 282 ("[F]ederal court  judgments are binding notwithstanding a simple lack of subject  matter jurisdiction, without regard to whether the jurisdictional  question was litigated.");  id. at 282 n.29 ("An assertion of jurisdiction by an administrative tribunal is likely to be treated in the same  way as an assertion by a court if the decision has been subjected to  judicial review." (citing Sunshine Anthracite Coal Co. v. Adkins,  310 U.S. 381, 403 (1940))).

7
  Dynaquest asserts that this court's decision in Landry v.  FDIC, 204 F.3d 1125 (D.C. Cir. 2000), establishes that it is "unnecessary that Dynaquest demonstrate that it was directly harmed by  the Postal Service's unconstitutional appointments mechanism" in  order to obtain judicial review of an Appointments Clause challenge. Dynaquest Br. at 22.  In Landry, we entertained such a challenge  to the authority of an FDIC Administrative Law Judge (ALJ), even  though the FDIC had itself reviewed the ALJ's decision de novo,  arguably curing any harm that might have resulted from the  alleged unconstitutional appointment.  See 204 F.3d at 1132.  In  Landry, however, a properly-appointed ALJ would have had authority to decide Landry's case.  As noted above, in this case even a  properly-appointed AJO would lack authority to collaterally review  the Sixth Circuit's decision.


                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                         _______________________

                               No. 97-30113
                             Summary Calendar
                         _______________________

                             BARBARA LACHNEY,

                                                     Plaintiff-Appellant,

                                   versus

                  LUMBERMENS MUTUAL CASUALTY COMPANY,

                                                       Defendant-Appellee.

_________________________________________________________________

          Appeal from the United States District Court
              for the Western District of Louisiana
                       Alexandria Division
                            (96-CV-901)
_________________________________________________________________
                         October 13, 1997

Before JONES, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:1

        Barbara Lachney appeals the district court’s denial of

her motion to remand as well as the district court’s grant of

summary judgment in favor of Lumbermens Mutual Insurance Company

(“Lumbermens”).     Finding no error in either ruling, we affirm.

        Lachney was injured in an automobile accident in April

1995.   Lachney worked for Johnson & Johnson and, at the time of

     1
       Pursuant to Local Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
the accident, she was driving a car furnished to her by Johnson &

Johnson.     Lorraine Giddings was the other driver involved in the

accident.       Giddings was a permissive user of a vehicle owned by

Donald Smith, the named insured in a $10,000 liability policy

issued by Financial Indemnity Company (“Financial”).

          Lachney     sued       Lumbermens    in    Louisiana     state    court,

alleging that she should receive payment under the uninsured or

underinsured motorist (“UM”) coverage provided by Lumbermens to

Johnson     &     Johnson       on   company-owned     and    leased     vehicles.

Lachney’s       damages   claim      exceeds   the   limits   of   the   Financial

policy covering Donald Smith.

          Lumbermens removed the case to federal court based on

diversity.        After removal, Lachney moved for leave to file an

amended complaint against Giddings and Financial.                   The district

court granted leave to amend.              Since both Lachney and Giddings

were Louisiana citizens, Lachney moved to remand.

          Lumbermens responded by filing a motion to recall the

order   permitting        the    amended   complaint    against    Giddings    and

Financial on the grounds that the joinder was merely to defeat

diversity.       The district court granted this motion and denied the

motion to remand.          The court found the first factor outlined in

Hensgsens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987),

the purpose of the post-removal amendment, to be dispositive:

                                           2
              Plaintiff    has   been  aware   of    Giddings’
              identity and role in the underlying tort from
              day one. At the time plaintiff filed suit in
              state court against Lumbermens on her UM
              coverage claim, she could have easily named
              Giddings and Financial as defendants on the
              related    underlying   tort    claim.       The
              possibility of reaching a settlement with
              these defendants did not excuse plaintiff
              from failing to name them as party defendants
              to this action at the outset. In short, we
              find    that    the   principal    purpose    of
              defendant’s post-removal addition of Giddings
              and Financial is to defeat this court’s
              subject matter jurisdiction.

The    district      court    also    reasoned      that   Lachney      would      not    be

prejudiced by the denial of joinder because it could still pursue

Giddings      and    Financial       in     state    court,     Financial       had      the

resources to cover any liability on the part of Giddings, and

Financial had made a settlement offer indicating that a state

trial might not even be necessary.

         On    appeal,       Lachney      argues    that   the      district       court’s

decision is not justified on the basis of a fraudulent joinder

rationale     because     she   can       obviously    state    a    cause    of    action

against Giddings and Financial.                  Lachney also complains that she

does   not    have    a   settlement        with    Financial    and    has    been      put

through the burden of pursuing this case in two forums.

         We    can    not     say    that    the    district        court    abused      its

discretion in denying Lachney’s attempts to join Giddings and

Financial post-removal.              Under 28 U.S.C. §1447(e), the district

court has discretion to deny post-removal attempts to join non-

                                             3
diverse     defendants,      and        the       Hensgsens      factors     are       still

appropriately      employed        by     the       court     in     exercising        that

discretion. See Tillman v. CSX Transportation, Inc., 929 F.2d

1023, 1029 (5th Cir.), cert. denied, 502 U.S. 859 (1991).                               The

authorities cited by Lachney deal with the broad ability of the

plaintiff to add parties pre-removal, rather than any limits on

the district court’s discretion in allowing the addition of non-

diverse parties post-removal.

          After the denial of remand, Lumbermens filed a motion for

summary    judgment     on   the   grounds          that    Johnson    &   Johnson      had

executed a valid waiver of UM coverage in its policy.                          Louisiana

law dictates that UM coverage is automatically provided in a

liability     policy,    and   requires            that    any     rejection      of   such

coverage be unambiguous to be effective. See Tugwell v. State

Farm   Ins.    Co.,   609    So.2d      195       (La.    1992).    See    also    La.R.S.

22:1406.      An insured has three options: 1) UM coverage equal to

the bodily injury limits on the liability policy, 2) UM coverage

lower than the bodily injury limits on the liability policy, but

not less than $20,000, or 3) no UM coverage. Id. at 197.

          The district court found that Johnson & Johnson, through

its manager of risk management, effectively rejected UM coverage

in the Lumbermens policy by signing a rejection form that had an

“x” placed in boxes next to the statements “I reject Uninsured

Motorists Coverage Bodily Injury for owned automobiles” and “I

                                              4
reject Uninsured Motorists Coverage Bodily Injury for hired and

non-owned automobiles ... .”                 The district court found that the

rejection form properly informed the insured of the three options

available under Louisiana law.                   The district court also noted the

affidavit of Wayne Klokis stating that he was adequately informed

of    his    three      options      and    affirmatively             chose           to    reject     UM

coverage.

            On   appeal,       Lachney      contends         that         the     district        court

overlooked        ambiguities        in    the       rejection        form        and       improperly

relied on        the    Klokis      affidavit         as    evidence         of       the    insured’s

intent.       Specifically, Lachney notes that the rejection form does

not   include      $20,000,         the    statutory         minimum,            in    the     list    of

“available limits” under the policy.                            Similarly, Lachney faults

the    form      for    not    listing      $5,000,000,              or    the        limit     on    the

liability policy, as one of the “available limits.”

            However, the policy does state that “[a]s required by

Louisiana        law    your     policy      has       been       issued          with       Uninsured

Motorists        Coverage      at     limits         equal       to       your        bodily     injury

liability limits.              You may choose to select lower or higher

limits, but not less than the Financial Responsibility Limit of

$20,000.00       per    ‘accident.’”             This      is    a    correct          statement       of

Louisiana law, and the rejection form included a blank for the

insured to write in the amount of UM coverage desired.                                         Thus, we

agree   with      the    district         court      that       the       form    “permitted          the

                                                 5
insured to make a meaningful selection from among the insurance

options required by Louisiana law, even if the ‘available limits’

listed did not include every dollar amount between $20,000 and

$5,000,000.”      We also agree that the form “presented a clear,

unambiguous,     and    unmistakable   rejection     of   UM   coverage   under

Louisiana law.”        The district court’s interpretation finds ample

support in the recent decision in Daigle v. Authement, 691 So.2d

1213 (La. 1997).2

         For the foregoing reasons, the judgment of the district

court is AFFIRMED.

          AFFIRMED.

      2
        In addition, although it is unclear to what extent the district court
relied on the Klokis affidavit, Louisiana courts are not as hostile to the use
of such documents to show intent as Lachney claims. See Moyles v. Cruz, 682 So.2d
326, 328-331 (La. Ct. App. 1996).

                                       6


                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 05-1267
GAIL ANDERSON,
                                           Plaintiff-Appellant,
                              v.

MILWAUKEE COUNTY and MILWAUKEE
TRANSPORT SERVICES, INC.,
                                 Defendants-Appellees.
                    ____________
          Appeal from the United States District Court
             for the Eastern District of Wisconsin.
            No. 03 C 536—Lynn Adelman, Judge.
                        ____________
 ARGUED SEPTEMBER 28, 2005—DECIDED JANUARY 11, 2006
                   ____________

  Before FLAUM, Chief Judge, and MANION and EVANS,
Circuit Judges.
  EVANS, Circuit Judge. In this case, filed pursuant to
42 U.S.C. § 1983, Gail Anderson alleges that Milwaukee
County and Milwaukee Transport Services, Inc., the
operator of the Milwaukee County bus system, violated
her First and Fourteenth Amendment rights by their
“tariff,” which prohibits the distribution of literature on
county buses.
  Ms. Anderson, a woman in her mid-fifties, lives in
Milwaukee. She doesn’t drive a car and so is a regular
customer on Milwaukee’s buses. But she is not, it would
2                                                 No. 05-1267

appear, your typical bus rider. As anyone who rides buses
in urban communities knows, most passengers mind their
own business. Most avoid conversation, and many even
avoid eye-contact, with other passengers. Not Ms. Ander-
son. She (here, of course, we take her allegations as true)
has a “sincerely held religious belief” and a wish to “share
her faith with those sitting next to her on the bus by talking
to them and giving them religious literature.” She also
wants to give her literature to other passengers who pass by
her seat on the bus. It’s unclear just how long, and how
often, she has followed her urge to share her views with
other riders.
   Ms. Anderson’s urge to “share her faith” and the bus
company’s tariff collided on July 8, 2003. On that day, she
boarded a bus and took a seat near the front. From there,
she attempted to hand out copies of a book, later identi-
fied as “The Book of Hope.” The book contains stories from
the Bible. In the past, she says she has been allowed to
hand out the book on the bus, but this time the driver,
Rozell Smith, observed what she was doing and asked her
to stop. Despite repeated requests, Ms. Anderson did not
stop and, in fact, said, “I will not stop.” At this point, Smith
did not know the book contained religious material.
  Because Ms. Anderson refused to stop handing out copies
of her book, Smith called the transit system dispatch office.
He spoke to dispatcher Valdis Salmins. The transcript of
the call is as follows:
    Operator:    . . . 63 on 63, bus 4442, badge 2637. . . . OK,
                 I want the company rules on passing out
                 literature on the bus, there. I’m sure we
                 have some kind of regulation, there. Is that
                 possible for people to pass out literature, all
                 different types of literature, over?
    Dispatch:    That’s a negative. There is no solicitation of
                 any kind allowed on our buses. (S0)
No. 05-1267                                                 3

                whether it’s free or for charge or what-
                ever. . . . Nothing is to be given out on the
                buses.
    Operator:   Well, that’s affirmative on that. I thought
                that was a rule. I got a lady on here who’s
                passing out books on the bus, annoying
                the passengers, and I told her that she
                couldn’t do that. She told me I couldn’t stop
                her from doing that, over.
    Dispatch:   Ok, I’ll send the CPOs to intercept you. If
                she gets off before you’re intercepted, please
                give us a call back.
    Operator:   Roger.
Mr. Salmins called system security. The transcript of that
call:
    CPO:        CPO 8, dispatch . . . we’re in the downtown
                area, what do you have?
    Dispatch:   EB from 107th and Silver Spring, I have
                vehicle 4442, 63 on 63, badge 2037. Female
                on board trying to hand out booklets. I don’t
                know if they’re religious or political, or
                what, but no solicitation allowed on
                our buses whatsoever.
Two security officers intercepted the bus, boarded it,
approached Ms. Anderson, and asked whether they could
talk to her off the bus. At that point, they did not know
what she was handing out. After she was off the bus, Ms.
Anderson told the officers about “The Book of Hope.” The
officers explained to her that the Transit System had a rule
against distributing literature on buses. They asked her
whether she wanted to board the next bus to continue her
trip. Being within six blocks of her home, she decided to
walk.
4                                                No. 05-1267

  The “rule” discussed by the bus driver and the dispatcher
is one of the “Passenger Tariffs,” under which the bus
system operates. The tariffs set out fare information and
rules regarding passenger conduct. Tariff 116 says “No
person furnished transportation under fares named in
this tariff shall be permitted to enter or remain in the
system’s buses: (a) For purpose of distributing any form
of advertising or literature.”
   Based on these facts, the district judge (the Honorable
Lynn Adelman) granted the defendants’ motion for sum-
mary judgment. Ms. Anderson now appeals, claiming that
the tariff is impermissibly vague, overbroad, and unreason-
able. She also claims it discriminates against religious
literature. We review a summary judgment determina-
tion as well as any questions of constitutional law under the
de novo standard of review. Weinberg v. City of Chicago, 310
F.3d 1029, 1035 (7th Cir. 2002).
  We will turn first to Ms. Anderson’s claims that the tariff,
on its face, is unconstitutionally vague and overbroad. The
tariff is vague, she says, because it is unclear what “distrib-
uting” means. She poses several hypothetical examples. For
instance, is handing out one book distributing? A bus
company witness said no. But, she asks, is handing out one
item a day for more than one day considered distribution?
How about the businessman who hands a seat mate his
business card? Her examples of the outer limits of possible
meanings of the word “distributing” fall short of convincing
us that the tariff is unconstitutionally vague. Common
sense must not be and should not be suspended when
judging the constitutionality of a rule or statute.
  A law is void for vagueness if it fails to give fair warn-
ing of what is prohibited, if it fails to provide explicit
standards for the persons responsible for enforcement
and thus creates a risk of discriminatory enforcement,
and if its lack of clarity chills lawful behavior. Grayned v.
No. 05-1267                                                  5

City of Rockford, 408 U.S. 104 (1972). On the other hand,
the Court has said that “perfect clarity and precise guidance
have never been required even of regulations that restrict
expressive activity.” Ward v. Rock Against Racism, 491 U.S.
781, 794 (1989). There are, of course, limits to how precise
language can be in the context of a law, ordinance, or, for
that matter, a bus system tariff. In United States Civil
Service Commission v. National Association of Letter
Carriers, 413 U.S. 548, 578-79 (1973), the Court remarked
that “there are limitations in the English language with
respect to being both specific and manageably brief . . . .”
Looking at the Civil Service Rules interpreting the then-
existing version of the Hatch Act, 5 U.S.C. § 7324(a)(2), the
Court said the “ordinary person exercising ordinary com-
mon sense” knows perfectly well what they mean.
  Ms. Anderson’s arguments that the tariff is vague are
reminiscent of those in Schultz v. Frisby, 877 F.2d 6, 8 (7th
Cir. 1989), which involved abortion opponents who
wished to picket the home of an abortion provider.1 The
plaintiffs claimed that an ordinance which outlawed
picketing that was “directed at” a particular home was
unconstitutionally vague. We set out their concern:
    Will it be enough to go ‘round and ‘round the block?
    Could the picketers march in front of the five houses on
    either side of the [providers’]? May they stop for one
    minute, or two, or five, in front of the . . . place before
    moving along? Surely they can’t evade the law by
    standing in front of the . . . home and occasionally
    jumping one house on either side. How much longer
    must the route be?
We rejected these concerns in favor of common sense:

1
  We take the background facts from a Supreme Court decision in
the same case—Frisby v. Schultz, 487 U.S. 474 (1988).
6                                                No. 05-1267

    No matter how clear the ordinance seems, a hundred
    nice questions may follow in its wake. The Constitution
    does not require [the town] to answer each of these
    before it may enforce the law. Incompleteness is a curse
    of language, as of human imagination. To say that
    precision is a precondition to enforcement is to say that
    no ordinance regulating speech may stand—a proposi-
    tion the Supreme Court has rejected over and again.
Id. In our case, we cannot imagine that the tariff would
have a chilling effect, for instance, on a bus-riding business-
man who wanted to hand his business card to a seat mate.
In short, we do not find the ordinance unconstitutionally
vague.
  Neither can the tariff be seen as facially overbroad. The
overbreadth doctrine allows a plaintiff to ask that a law
be struck down based not on how it affects the plaintiff
but on how it might be applied to third parties not before
the court. Because that is “strong medicine,” the “over-
breadth of a statute must not only be real, but substantial
as well, judged in relation to the statute’s plainly legitimate
sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 614-615
(1973). Again, in Virginia v. Hicks, 539 U.S. 113 (2003), the
Court emphasized that to be overbroad, the law’s applica-
tion to protected speech must be substantial. That simply
is not the case here. The tariff is narrowly drawn and
applies—as we shall see—in a limited environment. More
importantly, Ms. Anderson has not shown that the tariff
would significantly affect the rights of individuals not
before us in any way differently from the way it affects her.
Accordingly, as the Court said in City Council v. Taxpayers
for Vincent, 466 U.S. 789, 802 (1984), “It would therefore be
inappropriate in this case to entertain an overbreadth
challenge to the ordinance.”
  Ms. Anderson’s primary contention is that to the extent
the tariff prevents her from sitting on the bus and hand-
No. 05-1267                                                7

ing out literature, it is unconstitutional as applied to
her. We agree that her activities are a form of speech
protected under the First Amendment. Further, the bus is a
governmentally controlled forum. But, it is well-settled that
the government is not required to permit all forms of speech
on all of the property it owns. Int’l Soc’y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672 (1992). We use
“forum analysis” to determine when the government’s
interest in limiting the use of its property to its intended
purpose outweighs the interests of those wishing to use the
property for other purposes, such as First Amendment
activities. Cornelius v. NAACP Legal Def. & Educ. Fund,
Inc., 473 U.S. 788 (1985). Under this approach, on property
that has traditionally been available for public expression,
regulation of speech is subject to the highest scrutiny.
Similarly, the government is bound by the same standard
in the “designated public forum”—property the government
has opened up for limited or unlimited public expressive
activity. Finally, there is the “nonpublic forum”; that is,
“[p]ublic property which is not by tradition or designation
a forum for public communication . . . .” Perry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983). As
Ms. Anderson properly concedes, the interior of a city-
operated transit vehicle is a nonpublic forum. See Lehman
v. City of Shaker Heights, 418 U.S. 298 (1974).
  In a nonpublic forum, the government may restrict speech
to a greater extent than in a public or designated public
forum. Restrictions must be viewpoint-neutral
and reasonable. In other words, restrictions need only
pass the test of reasonableness so long as they are not
an attempt to stifle a viewpoint based on its content. Int’l
Soc’y for Krishna Consciousness, Inc. v. Lee at 683. A
restriction does not need to be “the most reasonable or
the only reasonable limitation”; it does not need to be
narrowly tailored; nor does the governmental interest
need to be compelling. Cornelius at 808-809. In fact,
8                                                No. 05-1267

simple common sense is sufficient to uphold a regulation
under reasonableness review. United States v. Kokinda, 497
U.S. 720, 734 (1990). Using this approach, the Court has
found reasonable, for instance, a ban on soliciting in an
airport terminal, Int’l Soc’y for Krishna Consciousness, Inc.
v. Lee, and a restriction on political advertising on public
transit. Lehman v. City of Shaker Heights. See also Chil-
dren of the Rosary v. City of Phoenix, 154 F.3d 972 (9th Cir.
1998). In Chicago Acorn v. Metropolitan Pier and Exposition
Authority, 150 F.3d 695, 704 (7th Cir. 1998), we found that
leafleting should not be permitted in places where “pedes-
trian traffic will be obstructed.” See also Hawkins v. City
and County of Denver, 170 F.3d 1281 (10th Cir. 1999).
   Here, the restriction is clearly reasonable. Bus passengers
are a captive audience. While riding on the bus, many
passengers have an interest in avoiding unwel-
come communications. It is reasonable for the bus company
to attempt to ensure their comfort. In Lehman, the Court
concluded that a city was entitled to protect unwilling
viewers against intrusive advertising on its buses in order
to provide rapid, convenient, pleasant, and inexpensive
public transportation for them. It is also reasonable to wish
to avoid disagreements among passengers which the
distribution of literature might inspire. Furthermore, the
bus company has an interest in passenger safety. The
company expresses concern that a driver could be distracted
by literature distribution and that abandoned literature can
cause a safety hazard and certainly a littering problem.
Given the nature of the forum, a ban on the distribution of
literature on buses passes constitutional muster.
  Finally, Ms. Anderson also seems to claim that the
restriction as applied in this case is, in fact, content-based
and therefore unconstitutional. She says there is an
“unwritten scheme” by which there are exceptions from
the total ban on literature distribution—exceptions
which arise out of the discretion bus operators have to
No. 05-1267                                                 9

choose which people they will ask to stop distributing
literature. She says that discretionary enforcement of
the tariff results in discrimination against religious litera-
ture; therefore, the tariff is subject to strict scru-
tiny analysis. We see no factual basis for this claim. As
we said, at the time the driver asked her to stop passing out
her book, he had no idea what it was about. Neither did the
security officers who took Ms. Anderson off the bus. Fur-
thermore, Ms. Anderson offers no evidence that anyone has
been allowed to distribute nonreligious literature on the
bus. Her main support for her claim that enforcement is
discriminatory is that the bus company has a rack behind
the driver’s seat which holds copies of bus route schedules
and monthly newsletters. She says that if the company can
provide that literature, she can pass out her book. We reject
this contention out of hand. The comparison between
passively providing bus riders with schedules and informa-
tion about the very system on which they are riding cannot
be compared to a passenger distributing literature of any
kind. Ms. Anderson’s argument on this point rests on thin
air.
  Ms. Anderson has failed in her attack on the tariff,
and accordingly we AFFIRM the judgment of the district
court.
10                                        No. 05-1267

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit

               USCA-02-C-0072—1-11-06


90 Ga. App. 372 (1954)
83 S.E.2d 185
WORSHAM
v.
PALMER.
35213.
Court of Appeals of Georgia.
Decided July 9, 1954.
*377 Samuel L. Eplan, Frank D. Holcomb, for plaintiff in error.
C. Eugene Gilbert, Wendell J. Helton, contra.
GARDNER, P. J.
1. The defendant contends that the court *378 erred in not sustaining the general demurrer to the original petition as amended, because the amendment filed did not add any new facts or any sufficient facts, construed with the original petition, to set out a cause of action. As to this phase of the defendant's contention, counsel calls attention to the following decisions: Jones v. Butler, 191 Ga. 126 (12 S. E. 2d 326); Wood v. Southern Trust Co., 12 Ga. App. 155 (76 S. E. 991); Baker v. City of Atlanta, 22 Ga. App. 483 (96 S. E. 332); Pasco Flour Mills Co. v. City Supply Co., 23 Ga. App. 95 (97 S. E. 558); Garmany v. Henson, 30 Ga. App. 100 (117 S. E. 107); Jenkins v. Atlanta Police Relief Assn., 54 Ga. App. 209 (187 S. E. 597); Lavenden v. Haseman, 157 Ga. 275 (121 S. E. 646).
The defendant further calls our attention to Weyman v. Maynard, 24 Ga. App. 94 (100 S. E. 25), in which this court held that, if prior to the tenant's injuries, dangerous defects in the premises were actually known to the tenant or were so plainly observable that the tenant must necessarily have had equal opportunity with the landlord to discover and understand the defects, the landlord would not be liable for injuries sustained as a result of such defects. Kleinberg v. Lyons, 39 Ga. App. 774 (148 S. E. 535) and Mendel v. Lyons, 39 Ga. App. 783 (148 S. E. 540), held that, if the tenant knows of dangerous conditions of the premises, and continues to use same, recovery for injuries will not lie. See Finley v. Williams, 45 Ga. App. 863 (166 S. E. 265), to the same effect. In King v. Investors Mortgage &c. Co., 51 Ga. App. 235 (1) (179 S. E. 910), this court held that the landlord is not liable if the tenant knows as much about the premises as the landlord. Our attention is called also to Cone v. Lawhon, 61 Ga. App. 797 (3) (7 S. E. 2d 597), in which this court held simply that notice or knowledge by a landlord of separate and independent patent defects in no way connected with latent defects, which latent defects allegedly caused injuries to the tenant, could not be taken as conclusive notice to the landlord of latent defects or as devolving upon the landlord any duty of inspection. Those are not the facts as alleged in the amended petition. Under the allegations of the instant petition, the patent defects were connected with the latent defects which allegedly occasioned injuries to the plaintiff. The defendant calls our attention to Waddell v. Wofford Oil Co., 84 Ga. App. 617 (66 *379 S. E. 2d 806). In that case the court held that the landlord is not liable for patent defects which are known also or which the tenant had means of knowing equal to the landlord, at the time the premises were rented to the tenant. The allegations of fact in that case are not of sufficient similarity to the allegations of fact in the instant case to render the landlord in the instant case not liable. The defendant calls our attention to Ween v. Saul, 88 Ga. App. 299 (76 S. E. 2d 525). It will be noticed that in that case the court held that the plaintiff was entitled to proceed under her petition where she knew that a certain portion of the plaster was loose and she moved her bed to another portion of the same room where the plaster appeared to be sound. The trial court sustained a demurrer to her petition, and this court reversed the trial court. We do not think that the allegations of fact in that case support the contentions of the defendant in the instant case.
2. Again referring to Ween v. Saul, supra, this court held as follows: "The petitions in these cases being actions for damages resulting to a tenant from a defect in the premises of which the landlord had actual or constructive notice, stated causes of action and the trial court erred in sustaining the general demurrers and in dismissing the actions."
In Shattles v. Blanchard, 87 Ga. App. 15 (1) (73 S. E. 2d 112), it was held: "The question of what is reasonable time for the performance of an act required to be performed upon `reasonable notice,' is usually, if not always to be determined by the character of the act contemplated, considered with its purposes and the attendant facts and circumstances. Accordingly, where, as here, the only means of ingress and egress from an apartment rented by the landlord is a set of outside steps, whether two days' notice of a defect in the steps is such reasonable notice as would raise a duty on the part of the landlord to repair same within such period of time is a jury question."
Headnote 2 of that same opinion held: "Questions as to negligence and contributory negligence are, except in plain and indisputable cases, for the determination of the jury, and where the allegations of the petition do not, even when construed against the pleader, demand the conclusion that the plaintiff's own negligence so preponderated as to preclude a recovery by her, this issue should be left for determination by a jury."
*380 On page 18 of that same opinion this court held: "Except in clear and palpable cases it is a jury question as to whether the plaintiff was in the exercise of ordinary care for her own safety."
On page 16 of that same opinion this court held: "Notice of a defect given by the tenant to the landlord, charges the latter with notice of any and all other defects such as might reasonably have been discovered by a compliance with a request for repairs."
In Stack v. Harris, 111 Ga. 149 (36 S. E. 615), the Supreme Court held: "Though a landlord will not be liable in damages for injuries to a tenant resulting from the defective condition of a plank in the floor of the rented building, of which the landlord had no notice, a petition which alleges that the plaintiff, a tenant, was injured by reason of such a defect and that the landlord, the defendant, had notice of the `defective condition of the floor,' sufficiently alleges as against a general demurrer, that the defendant had notice of the defective condition of the plank."
See, in this connection, Shaddix v. Eberhart, 55 Ga. App. 498 (190 S. E. 408); Kimpson v. Wingo, 84 Ga. App. 189 (65 S. E. 2d 837); Seal v. Stodghill, 44 Ga. App. 643 (162 S. E. 638); Marr v. Dieter, 27 Ga. App. 711 (2) (109 S. E. 532); MeYere v. Withers, 15 Ga. App. 688 (84 S. E. 163).
Under the allegations of this petition, the court did not err in overruling the general demurrer to the petition.
Judgment affirmed. Townsend and Carlisle, JJ., concur.


256 F.2d 278
MISSOURI PACIFIC RAILROAD COMPANY, Appellant,v.Ludwic FUSILIER, Appellee.
No. 17000.
United States Court of Appeals Fifth Circuit.
June 9, 1958.

Edward Dubuisson, Opelousas, La., M. Truman Woodward, Jr., New Orleans, La., for appellant.
J. Nilas Young, Eunice, La., and L. O. Fusilier, Ville Platte, La., for plaintiff-appellee.
Before HUTCHESON, Chief Judge, and TUTTLE and BROWN, Circuit Judges.
PER CURIAM.

1
On April 10, 1957 the jury returned a general verdict for the plaintiff, Fusilier, for $5,000 accompanied by answers to two special interrogatories, (1) was the defendant Railroad guilty of negligence which was a proximate cause of the accident in suit and (2) was the plaintiff guilty of such negligence, both of which were in the affirmative. Thus, under Louisiana law which makes contributory negligence a complete bar to recovery by a plaintiff, a clear conflict between the general and special verdicts was disclosed. After further instruction to the jury and conference between court and counsel, the trial court, expressly exercising its discretion under F.R.C.P. 49 (b), 28 U.S.C.A., ordered a new trial on its own motion. The reason assigned by the District Court for this action was that there could be no question that there was confusion in the minds of the jury after long deliberation which made it apparent that the real intent was in accord with the general verdict. It is from this order that appeal is sought.

2
The parties briefed and argued the case on the intrinsic merits, the defendant-appellant claiming that an instructed verdict ought to have been granted, and plaintiff-appellee denied this and contended as well that the discretionary granting of a new trial sua sponte is not generally reviewable, Fairmont Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 53 S.Ct. 252, 77 L.Ed. 439. We do not get that far.

3
Appeal on such an order cannot be maintained. Appeal must be based upon a final judgment below. 28 U.S.C.A. §§ 1291, 1292; Milprint, Inc., v. Donaldson Chocolate Co., 8 Cir., 222 F.2d 898, 902; Bass v. Baltimore & O. Terminal R. Co., 7 Cir., 142 F.2d 779; Aubertin v. State Farm Mutual Automobile Ins. Co., 5 Cir., 252 F.2d 96. There is no such judgment here. The appeal is therefore dismissed.

4
Appeal dismissed.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                      8X8, INC.,
                  Plaintiff-Appellant

                          v.

                  UNITED STATES,
                  Defendant-Appellee
                ______________________

                      2016-1959
                ______________________

    Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00478-EDK, Judge Elaine Kaplan.
                 ______________________

                Decided: April 27, 2017
                ______________________

    H. CHRISTOPHER BARTOLOMUCCI, Kirkland & Ellis
LLP, Washington, DC, argued for plaintiff-appellant.
Also represented by CHRISTOPHER GEORGE MICHEL.

    JUDITH ANN HAGLEY, Tax Division, United States De-
partment of Justice, Washington, DC, argued for defend-
ant-appellee.     Also represented by TERESA E.
MCLAUGHLIN, CAROLINE D. CIRAOLO.
                ______________________

  Before WALLACH, CHEN, and HUGHES, Circuit Judges.
WALLACH, Circuit Judge.
2                                  8X8, INC. v. UNITED STATES

    Appellant 8x8, Inc. (“8x8”) sued Appellee the United
States (“Government”) in the U.S. Court of Federal
Claims, seeking a refund of more than $1 million in
Federal Communications Excise Tax (“FCET” or “excise
tax”). The parties subsequently filed cross-motions for
summary judgment, and the Court of Federal Claims
denied 8x8’s Motion and granted the Government’s Cross-
Motion, thereby denying 8x8’s claim for a refund of the
FCET remitted. See 8x8, Inc. v. United States, 125 Fed.
Cl. 322, 331 (2016).
   8x8 appeals. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(3) (2012). We affirm.
                       BACKGROUND
                   I. 8x8’s VoIP Services
    8x8 is a provider of local and long-distance telephone
services over a broadband internet connection via Voice
over Internet Protocol (“VoIP”). This service allows
customers to make and receive calls over the internet via
a digital terminal adapter (“DTA”), which contains 8x8’s
proprietary firmware and software. J.A. 246. Part of
8x8’s VoIP service included the use of other transmission
services from Level(3) and Global Crossing—i.e., tradi-
tional telecommunications carriers. J.A. 246. The cus-
tomer’s call would be switched over to Level(3)’s or Global
Crossing’s traditional lines and circuits when necessary. 1
J.A. 365–66. However, 8x8 did not pay any FCET to
Level(3) or Global Crossing because it provided them with
an “exemption certificate[],” which “represent[ed] that

    1    8x8 purchased service from Level(3) or Global
Crossing in order to hand over the VoIP signal, “which
would then convert the digital signal back to a voice
signal (if necessary) and deliver the signal to the recipient
of the call.” Appellant’s Br. 17.
8X8, INC. v. UNITED STATES                                  3

[8x8] was a provider of telephone service and was exempt
from the excise tax in [I.R.C.] § 4253 [(2006)].” 2 J.A. 246.
     Subscribing to a plan offered by 8x8 included several
steps. First, customers seeking access to 8x8’s VoIP
service needed to purchase a DTA. J.A. 246. After mak-
ing the necessary physical connections to the DTA, the
customer then “went to 8x8’s website and signed up for a
subscription plan,” which included “accept[ing] 8x8’s
Terms and Conditions of Service.” J.A. 247. These Terms
and Conditions provided that 8x8 would collect the FCET
from its customers and remit the FCET to the Internal
Revenue Service (“IRS”) for the customers’ use of 8x8’s
VoIP domestic telephone service. See J.A. 259 (“8x8
will . . . bill all charges invoiced to End User’s ac-
count . . . . Such charges shall include . . . monthly service
fees, . . . toll charges, taxes and any other applicable
charges.”), 260 (“Prices for the Services do not include
any . . . sales, use, value added, excise, federal, state,
local, public utility or other similar taxes. All such taxes
shall be paid by the End User and will be added to any
amounts otherwise charged[,] unless [the] End User
provides 8x8 with an appropriate exemption certificate.”).
The subscription plans included (1) an unlimited local and
long distance plan permitting calls that were within
“reasonable personal use” for a set fee, J.A. 247; or
(2) plans for a set amount of minutes at a set price,
J.A. 246. After selecting a subscription plan, “the cus-
tomer would provide 8x8 with a credit card which would

    2   Relevant here, § 4253 provides “[c]ommon carriers
and communications companies” an exemption from the
FCET “for any toll telephone service . . . to the extent that
the amount so paid is for use by a common carrier, tele-
phone or telegraph company, or radio broadcasting sta-
tion or network in the conduct of its business as such.”
I.R.C. § 4253(f).
4                                  8X8, INC. v. UNITED STATES

be used to pay all charges, fees, and taxes for the 8x8
service.” 3 J.A. 247. Finally, “the customer would be
provided with a 10 digit code that would be used to acti-
vate the 8x8 service.” J.A. 247.
             II. Relevant History of the FCET
    8x8’s VoIP services were subject to the FCET.
J.A. 246; see I.R.C. § 4251(a)(1) (imposing the FCET on
“communications services”); id. § 4251(b)(1) (defining
“communications services”). Beginning in 2005, several
appellate courts held that § 4251 did not permit the IRS
to tax telephone services that billed customers based on a
fixed per-minute, non-distance-sensitive rate. See, e.g.,
Reese Bros., Inc. v. United States, 447 F.3d 229, 234 & n.2
(3d Cir. 2006) (collecting cases).
    In response to these rulings, the IRS ceased collecting
the FCET on “amounts paid for time-only service.” I.R.S.
Notice 2006-50, § 1(a), 2006-25 I.R.B. 1141 (“2006 No-
tice”) 4; see I.R.S. Notice 2007-11, 2007-5 I.R.B. 405 (clari-
fying and modifying the 2006 Notice). The IRS also
stated that VoIP services were non-taxable, 2006 Notice,
§ 3(a), (d), and established a process for taxpayers to seek
a refund of the FCET that had been exacted on non-
taxable services during the period between February 2003
and August 2006, id. § 5(d). Finally, the 2006 Notice

    3    “In order for a customer’s VoIP bundled domestic
service to be active, the customer’s account had to be
prepaid in advance.” J.A. 247. However, any other appli-
cable charges were billed to the subscriber’s account at
the end of the month, along with the next month’s fee.
See J.A. 259.
    4    The 2006 Notice was “prospectively vacated” on
April 9, 2012. 8x8, 125 Fed. Cl. at 324 n.1. “Because this
vacatur was not retroactive, it does not affect the outcome
of this case.” Id.
8X8, INC. v. UNITED STATES                               5

stated that a “collector” 5 can request a refund of the
FCET collected from customers during the relevant period
if the collector either (1) “establishes that it repaid the
amount of the tax to the person from whom the tax was
collected”; or (2) “obtains the written consent of such
person to the allowance of such credit or refund.” Id.
§ 5(d)(4)(i); see I.R.C. § 6415(a) (similar).
    8x8 subsequently filed a refund claim with the IRS for
the FCET imposed between March 2003 to July 2006.
J.A. 245–46. After its refund claim was denied in part,
8x8 exhausted its administrative remedies with the IRS.
J.A. 232–42. 8x8 then sued the Government in the Court
of Federal Claims, seeking a refund of more than $1
million for the FCET remitted to the IRS. J.A. 19–29.
The Court of Federal Claims concluded that 8x8 lacked
standing and granted the Government’s motion for sum-
mary judgment. 8x8, 125 Fed. Cl. at 330–31.
                        DISCUSSION
    The parties have stipulated to the material facts of
this case. See J.A. 245–48. The legal issue in this appeal
is whether 8x8 is entitled to claim a refund of the FCET.
After articulating the applicable standard of review and
legal framework, we address this issue below.
        I. Standard of Review and Legal Framework
   We review the Court of Federal Claims’s “grant of
summary judgment de novo.” Frankel v. United States,

    5   According to the 2006 Notice, I.R.C. § 4291 defines
a “collector” as “the person receiving the payment,” 2006
Notice, § 2(a)(3), and § 4291 states that “every person
receiving any payment for facilities or services on which a
tax is imposed upon the payor thereof under this chapter
shall collect the amount of the tax from the person mak-
ing such payment,” I.R.C. § 4291.
6                                 8X8, INC. v. UNITED STATES

842 F.3d 1246, 1249 (Fed. Cir. 2016) (citation omitted).
“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Court of Federal Claims Rule 56(a); see Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A genuine
dispute exists when “the evidence is such that a reasona-
ble jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A material fact is one that “might affect the outcome” of
the case. Id. The party seeking summary judgment has
the initial burden of establishing that there is no genuine
dispute as to any material fact. See Celotex, 477 U.S. at
323.
II. The Court of Federal Claims Did Not Err in Granting
     Summary Judgment in Favor of the Government
    The Court of Federal Claims stated that “the material
facts have been stipulated by the parties and are not in
dispute” and that the “sole issues before the [c]ourt are
legal ones.” 8x8, 125 Fed. Cl. at 327. The Court of Feder-
al Claims then moved to the legal issue and concluded
that 8x8 lacked standing to seek a refund because it did
not pay the FCET; it only collected the FCET from paying
customers and then remitted that money to the IRS. See
id. at 327–28. In reaching this conclusion, the Court of
Federal Claims noted “the undisputed facts establish that
8x8 did not bear the economic burden of the taxes it
remitted to IRS.” Id. at 328; see J.A. 247 (stipulating to
the language of the “TAXES” provision included in the
Terms and Conditions).
    8x8 argues that “under the special statutory rules
governing prepaid arrangements, 8x8 is not a collector.”
Appellant’s Br. 45. It contends that “the excise tax was
‘treated as paid,’ when 8x8 received the transfer of ser-
vices from Level[(3)] and Global Crossing, and 8x8 was
‘the person paying for such services.’” Id. at 46 (quoting
8X8, INC. v. UNITED STATES                                  7

I.R.C. § 4251(a)(2), (d)(1)(B)). According to 8x8, it “was
the ‘transferee’[6] and thus the ‘person liable for the tax.’”
Id. (quoting 26 C.F.R. § 49.4251-4(d)(1)). 8x8 further
argues that I.R.C. § 6415 does not bar its refund because
“8x8 is not a ‘person who collected’ excise tax,” id. at 49;
instead, 8x8 “paid the tax” and “pass[ed] along and sepa-
rately state[d] the amount of accrued federal excise tax on
its customers’ bills,” id. at 51. Thus, it contends that this
passing along is “an utterly commonplace economic trans-
action in which a retailer subjected by the [G]overnment
to higher costs of doing business raises customer prices.”
Id.
    “[T]he ultimate question presented for decision, upon
a claim for refund, is whether the taxpayer has overpaid
his tax.” Lewis v. Reynolds, 284 U.S. 281, 283 (1932),
modified, 284 U.S. 599 (1932) (internal quotation marks
and citation omitted). To sue for a refund, “it is incum-
bent upon the claimant to show that the United States
has money which belongs to him.” Id. (internal quotation
marks and citation omitted). I.R.C. § 6415 allows a
“person who collected the tax and paid it” to the IRS to
seek a refund only if “such person establishes . . . that he
has repaid the amount of such tax to the person from
whom he collected it[] or obtains the consent of such
person to the allowance of such credit or refund.” I.R.C.
§ 6415(a).
    We agree with the Court of Federal Claims that 8x8 is
a collector of the FCET and, as a collector, 8x8 has failed
to fulfill the necessary requirements of I.R.C. § 6415(a).
The overwhelming weight of the record demonstrates
8x8’s role as a collector and refutes 8x8’s argument to the
contrary. See J.A. 139 n.1 (IRS stating in the Notice of

    6   “Transferee” is defined as “the first person that is
not a carrier to whom a [prepaid telephone card] is trans-
ferred by a carrier.” 26 C.F.R. § 49.4251-4(b) (2006).
8                                 8X8, INC. v. UNITED STATES

Proposed Adjustment that “8x8 admitted . . . that it
collected an additional 3% [excise tax] from its [custom-
ers] in addition to the monthly service fee” and that 8x8’s
Fiscal Year 2006 Form 10-K filing with the U.S. Securi-
ties and Exchange Commission stated “that it ceased
‘collecting and remitting’ Federal Excise Taxes in June
2006 pursuant to the [U.S.] Treasury Department’s news
release addressing collection of the [excise tax]”), 348
(Form 10-K filing stating that 8x8 “do[es] not collect state
and federal telecommunications taxes, other than federal
excise tax” (emphasis added)), 389 (8x8’s Chief Financial
Officer admitting the same). The Terms and Conditions
to which customers agreed also states that “[p]rices for
the Services do not include any . . . excise . . . or other
similar taxes. All such taxes shall be paid by End User
and will be added to any amounts otherwise charged to
End User . . . .” J.A. 247; see J.A. 248 (“Each of the
monthly invoices separately stated the [excise tax] appli-
cable to the telephone service used by the customer that
month.”).
    The record also demonstrates that 8x8 failed to fulfill
the requirements of I.R.C. § 6415(a) because 8x8 neither
refunded its customers the FCET nor obtained their
consent to seek the refund. First, the record shows that
8x8 did not refund the FCET that it collected from its
customers. See J.A. 247 (“[A]pplicable taxes may not be
refundable.”). The only discussion of refunding money to
customers appears when 8x8 addresses its obligations to
customers when services are terminated. Yet, this only
covers refunding money used to purchase a DTA and any
money paid for services provided by 8x8; it does not cover
the FCET. See J.A. 247 (“In the event a customer termi-
nated its 8x8 service within the first 30 days, 8x8 would
refund the purchase price of the DTA to the customer and
the customer would return the DTA to 8x8.”), 247–48 (“If
a customer decided to terminate its prepaid service during
the month, it was 8x8’s policy to continue the service for
8X8, INC. v. UNITED STATES                                9

the remainder of the month which had already been
prepaid. Occasionally, if a customer requested a refund,
8x8 would refund the monthly charge to the customer, to
avoid arguing over the service fee.”). Second, 8x8 does not
dispute that it did not obtain its customer’s consent to
seek a refund. See generally Appellant’s Br.
     Moreover, 8x8 confirmed its intention to keep any
FCET it may be refunded. See Oral Arg. at 0:32–0:53,
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
16-1959.mp3. In fact, 8x8 and the Government stipulated
“[a] majority of 8x8’s customers probably received refunds
from the IRS of the [excise tax] that 8x8 collected from
them during the period.” J.A. 248. This stipulation
supports the conclusion that 8x8 did not obtain consent
from its customers to seek the FCET. The record unques-
tionably demonstrates that 8x8 failed to comply with the
requirements of I.R.C. § 6415(a) and, thus, may not seek a
refund pursuant to § 6415(a). See Lewis, 284 U.S. at 283.
     Although 8x8 fails to meet the requirements of I.R.C.
§ 6415(a), it may nevertheless obtain a refund if it had
“borne the economic burden of the taxes by paying them
out of [its] own pocket and had not collected them from
members.” Epstein v. United States, 174 Ct. Cl. 1158,
1174 (1966) (footnote omitted). The question that must be
answered here is whether 8x8 passed the expense on to
its customers or bore the burden of the tax by paying it.
See Gumpert v. United States, 155 Ct. Cl. 721, 725 (1961)
(“If [the collector] has passed this expense on to [its]
customers, then [the collector] does not have the proper
standing to maintain” its refund suit.); see also United
States v. Jefferson Elec. Mfg. Co., 291 U.S. 386, 402 (1934)
(“If [the taxpayer] has shifted the burden to the purchas-
ers, they and not he have been the actual sufferers and
are the real parties in interest; and in such a situation[,]
there is nothing arbitrary in requiring, as a condition to
refunding the tax to him, that he give a bond to use the
refunded money in reimbursing them.”).
10                                 8X8, INC. v. UNITED STATES

    8x8 contends that it paid the excise tax by “rais[ing]
customer prices.” Appellant’s Br. 51. Whether an in-
crease in pricing is tantamount to the payment of a tax
generally presents a question of fact, see Worthington
Pump & Mach. Corp. v. United States, 129 Ct. Cl. 87, 93
(1954), and the parties stipulated to the facts relevant
here. Our predecessor court in Worthington, the seminal
case on this question, laid out several factors to consider.
For example, “[c]ourts have laid great stress on an in-
crease in price associated with the imposition of tax as
indicating a shift of the tax burden” to the customers. Id.
at 93–94 (citations omitted). “In some cases the price
increase was explained by other causes, such as a rise in
other costs, and the tax was held not to have been passed
on.” Id. at 94 (citations omitted). “Where there was no
increase in prices and there were other facts indicating
that the seller had absorbed the tax, it was held that the
tax was absorbed.” Id. (citations omitted). Finally, an
intent or attempt “to pass on the tax” can be “taken as
some evidence of its actual occurrence” when better
evidence is absent. Id.
    A comparison of these principles against the undis-
puted record reveals that 8x8 did not bear the economic
burden of the FCET. Rather, the record demonstrates
that “[p]rices for the Services do not include . . . any
excise, federal, . . . or other similar taxes.” J.A. 247. The
customer “would first have to accept 8x8’s Terms and
Conditions of Service” and “[t]hen the customer would
provide 8x8 with a credit card which would be used to pay
all charges, fees, and taxes for the 8x8 service.” J.A. 247
(emphases added). Additionally, “[e]ach of the monthly
invoices separately stated the [FCET] applicable to the
telephone service used by the customer that month.” J.A.
248. These stipulated facts demonstrate that 8x8 passed
the FCET on to its customers. The FCET was a separate
line item on the monthly bill, and the Terms and Condi-
tions explicitly stated the customers were responsible for
8X8, INC. v. UNITED STATES                              11

the FCET. This leaves no room for doubt that 8x8 did not
bear the economic burden of the FCET. Rather, 8x8 is
seeking to recover costs borne by its customers, in direct
contradiction of the Internal Revenue Code. 7 There is no
genuine issue of material fact, and 8x8, a collector of the
FCET, does not have standing as a matter of law to seek a
refund of the FCET paid by its customers.
                         CONCLUSION
    We have considered 8x8’s remaining arguments and
find them unpersuasive. Accordingly, the decision of the
U.S. Court of Federal Claims is
                         AFFIRMED
                             COSTS
    Costs to Appellee.

    7    8x8 makes vague references to unjust enrichment.
See Appellant’s Br. 49, 54–56 (arguing that barring a
refund to 8x8 would mean that no one could collect a
FCET refund and, therefore, the Government would be
unjustly enriched). To the extent 8x8 alleges a separate
equitable claim for unjust enrichment, this argument
fares no better. 8x8 did not allege a claim for unjust
enrichment in its Complaint, see J.A. 19–29, and the
Court of Federal Claims does not have jurisdiction over
such unjust enrichment claims, see Brown v. United
States, 105 F.3d 621, 624 (Fed. Cir. 1997) (explaining that
the Tucker Act generally does not provide jurisdiction
over claims for equitable relief); Cleveland Chair Co. v.
United States, 214 Ct. Cl. 360, 364 (1977) (“Unjust en-
richment cannot in itself be the basis for a recovery here,
for it lacks the consensual element needed to find a con-
tract implied in fact, and only provides support for the
remedial device known as a contract implied in law, over
which this court has no jurisdiction.” (citation omitted)).


         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-1687
                 _____________________________

JORGE ANTONIO HERNANDEZ,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________

On appeal from the Circuit Court for Alachua County.
James M. Colaw, Judge.

                       January 11, 2018

PER CURIAM.

    AFFIRMED.

JAY, WINSOR, and M.K. THOMAS, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________
Andy Thomas, Public Defender, and Steven L. Seliger, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.

                               2


867 F.2d 1427
Amen-Rav.Adams*
NO. 88-2154
United States Court of Appeals,Fifth Circuit.
FEB 06, 1989

1
Appeal From:  E.D.Tex.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 25 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS

                             FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 12-30067

               Plaintiff - Appellee,             D.C. No. 3:05-cr-00030-EJL

  v.
                                                 MEMORANDUM *
CHARLES WILLIAM AXTELL,

               Defendant - Appellant.

                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                              Submitted June 18, 2013 **

Before:        TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

       Charles William Axtell appeals pro se from the district court’s order denying

his second 18 U.S.C. § 3582(c)(2) motion for reduction of sentence and the order

denying his motion for reconsideration. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Axtell contends that he is entitled to a sentence reduction because the Fair

Sentencing Act of 2010 (“FSA”) applies retroactively to reduce the mandatory

minimum sentence imposed for his crack cocaine conviction and because

subsequent amendments to the Sentencing Guidelines lowered the applicable

sentencing Guidelines range. We review de novo whether the district court had

authority to modify a defendant’s sentence under section 3582(c)(2). See United

States v. Austin, 676 F.3d 924, 926 (9th Cir. 2012).

      Axtell’s 120-month sentence was the statutory mandatory minimum at the

time of sentencing. See 21 U.S.C. § 841(b)(1)(A) (2005). Because the FSA’s

reduced mandatory minimums do not apply to defendants sentenced before its

effective date, a reduction in Axtell’s sentence would not be consistent with the

policy statements issued by the Sentencing Commission, and the district court

therefore lacked authority to modify Axtell’s sentence. See 18 U.S.C.

§ 3582(c)(2); U.S.S.G § 1B1.10 cmt. n.1(A); United States v. Augustine, 712 F.3d

1290, 1295 (9th Cir. 2013). Accordingly, the district court properly denied

Axtell’s motions.

      AFFIRMED.

                                                                              12-30067


878 P.2d 98 (1994)
ANDERSON BONELESS BEEF, INC., a Colorado corporation, Plaintiff-Appellant,
v.
SUNSHINE HEALTH CARE CENTER, INC., a Colorado corporation, Defendant, and
Omnibank Denver, Garnishee, and
Eden Foundation, Inc., a Missouri corporation, Intervenor-Appellee,
and concerning Nathan M. Berger, Appellant.
No. 93CA0575.
Colorado Court of Appeals, Div. V.
March 10, 1994.
Rehearing Denied April 7, 1994.
Certiorari Denied August 22, 1994.
*99 Berger & Berger, Nathan M. Berger, Commerce City, for plaintiff-appellant.
No appearance for intervenor-appellee.
Berger & Berger, Nathan M. Berger, Commerce City, for appellant.
Opinion by Judge CASEBOLT.
Anderson Boneless Beef, Inc., (Anderson) and its attorney, Nathan M. Berger, appeal from the order of the trial court imposing sanctions for attempting to garnish an account at Omnibank Denver. We affirm in part and reverse in part.
Anderson obtained a money judgment against Sunshine Health Care Center, Inc., (Sunshine) after it went out of business as a nursing home operator. Although operation of the nursing home had been taken over by Eden Foundation, the federal government continued to issue monthly checks naming Sunshine as the representative payee for Medicaid patients at the facility. Anderson apparently learned that Eden was depositing these checks in its account with Omnibank Denver, and it therefore served the bank with a writ of garnishment. The bank denied holding any funds belonging to Sunshine, and the case proceeded to a hearing after Anderson filed a traverse.
At the hearing, Anderson relied on the Uniform Commercial Code, § 4-1-101, et seq., C.R.S. (1992 Repl.Vol. 2), as the basis for its claim to the federal checks. Specifically, Anderson noted that the checks were made out to "Sunshine Health Care Center for [the named Medicaid beneficiary]" and signed by Eden with "deposit only" followed by its account number. The words "deposit only" did not constitute an endorsement, and Anderson argued that crediting Eden's account with the proceeds from the checks was the legal equivalent of payment on a forged instrument, thereby subjecting the bank to liability to Sunshine for conversion.
The court declined to rule on this argument, and instead concluded that the case turned on the narrower issue of whether the bank had correctly answered the writ of garnishment by stating it held no funds belonging to Sunshine. As to this issue, the court also noted Anderson's writ did not specify a particular account number, and it thus ruled that the bank's obligation was limited to determining whether it had an account in Sunshine's name. Since the bank had fulfilled this obligation, the court discharged the garnishment. This ruling was affirmed on appeal in Anderson Boneless Beef, Inc. v. Sunshine Health Care Center, Inc., 852 P.2d 1340 (Colo.App.1993).
Immediately after the trial court issued its ruling, Anderson obtained a second writ of garnishment, this time specifically identifying Eden's account number. Eden moved to discharge the writ, and it requested an award of attorney fees as a "sanction ... for wrongful garnishment." The court discharged this writ, and it subsequently ruled that, in view of the information presented in the first hearing, Anderson's attorney knew or should have known the second garnishment was substantially frivolous and groundless. Consequently, the court entered an order imposing sanctions jointly and severally against Anderson and its attorney pursuant to the attorney fees act, § 13-17-101, et seq., C.R.S. (1987 Repl.Vol. 6A). This appeal followed.

I.
Initially, we reject Anderson's contention that its second attempt to garnish Eden's bank account was not frivolous.
*100 Anderson was attempting to collect its judgment by obtaining from the bank any money, credits, debts, or property belonging to Sunshine. See Union Colony Bank v. United Bank, 832 P.2d 1112 (Colo.App.1992). The bank's liability, as a garnishee, was therefore measured in terms of its liability to Sunshine, and Anderson had the burden of proving the existence of Sunshine's right to recover from the bank. See Martinez v. Dixon, 710 P.2d 498 (Colo.App.1985). However, after the hearing on the first writ, Anderson's attorney was on notice that Sunshine had no claim against the bank under either state or federal law.
Sunshine was named as the representative payee only because of a clerical error by the federal government, and Sunshine suffered no detriment from any irregularity in the bank's processing of the checks, since the federal payments were applied as intended, for the use of the Medicaid patients in Eden's care. See, e.g., Lund v. Chemical Bank, 797 F.Supp. 259 (S.D.N.Y.1992) (under the Uniform Commercial Code, there can be no cause of action by anyone on a forged endorsement when the proceeds of the check reach the intended payee).
Given this background, it should have been readily apparent that there was no rational legal basis for the second writ of garnishment. Consequently, the trial court was correct in deeming the writ frivolous and imposing sanctions on that basis. See Western United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo.1984); Nienke v. Naiman Group, Ltd., 857 P.2d 446 (Colo.App.1992).

II.
We also reject Anderson's assertion that the sanctions order must be reversed because Eden's motion did not adequately "explain the basis upon which fees are sought," as required by C.R.C.P. 121 § 1-22, and did not give Anderson and its attorney proper notice of the claim for fees.
C.R.C.P. 121 is a practice standard establishing a uniform procedure for requesting attorney fees. The requirement that a motion "explain" the basis for the fee request is designed to provide notice so that the opposing party can present a meaningful response on whether an award is warranted.
Eden's motion requested an award of attorney fees as a "sanction ... for wrongful garnishment." Although the motion did not specify that sanctions were being sought under the attorney fees act, Anderson's attorney admitted during the hearing on the motion that he was prepared to address the issue of whether the second garnishment was "wrongful" in the sense of being legally deficient.
While Anderson's attorney initially claimed surprise that attorney fees were being requested under C.R.C.P. 11 and § 13-17-101, et seq., C.R.S. (1987 Repl.Vol. 6A), and further claimed that there was a conflict of interest between himself and his client, he nevertheless failed to request a continuance.
Finally, the trial court granted Anderson itself thirty days to present arguments on its responsibility, as well as to contest the amount being requested.
Under these circumstances, we conclude that Eden's failure to refer to the attorney fees act in its motion was harmless, and further conclude that the issue of notice, if any, was waived.

III.
Also without merit is Anderson's assertion that the attorney fees act, which by its terms applies only to "civil actions," cannot serve as the basis for imposing sanctions here because garnishment is considered an "ancillary proceeding."
The original version of the attorney fees act was limited to "any suit involving money damages." Colo.Sess.Laws 1977, ch. 189, § 2, at 796. Based upon this restriction, a division of this court held that the act did not apply to garnishment proceedings. Commercial Claims, Ltd. v. First National Bank, 649 P.2d 736 (Colo.App.1982). The amendments enacted in 1984, however, significantly expanded the scope of the act, so that a trial court is now authorized to impose sanctions whenever "any part" of "any civil action of any nature" lacks justification. Sections 13-17-102(1), 13-17-102(2), and 13-17-102(4), C.R.S. (1987 Repl.Vol. 6A). Therefore, even *101 though garnishment is characterized as an "ancillary proceeding ... in aid of execution issued pursuant to an existing judgment," Wright v. Nelson, 125 Colo. 217, 223, 242 P.2d 243, 246 (1952), it is nonetheless a "part" of a civil action, and it falls within the ambit of the attorney fees act.

IV.
Anderson contends for the first time on appeal that the General Assembly's enactment of the attorney fees act violates the constitutional doctrine of separation of powers by interfering with the supreme court's rule-making authority. Anderson further contends, also for the first time on appeal, that the attorney fees act is unconstitutional because it neither requires nor allows a hearing prior to imposition of fees for groundless or frivolous actions.
We decline to address these issues since they were not raised in the trial court. See Committee for Better Health Care v. Meyer, 830 P.2d 884 (Colo.1992); Wholesale Specialties, Inc. v. Village Homes, Ltd., 820 P.2d 1170 (Colo.App.1991).

V.
Anderson contends that the trial court erred in assessing sanctions jointly rather than solely against its attorney. We agree.
The attorney fees act authorizes a trial court to impose sanctions against an attorney, the client, or both. Section 13-17-102(3), C.R.S. (1987 Repl.Vol. 6A). However, in exercising this authority, a trial court should allocate sanctions between the attorney and the client according to their relative degrees of responsibility for the violation of the act. Cf. Maul v. Shaw, 843 P.2d 139 (Colo.App.1992) (applying C.R.C.P. 11).
Here, following the hearing on Eden's motion, Anderson's attorney filed a document with the trial court in which he accepted "full responsibility for the decision to proceed with the second writ of garnishment." In light of this admission, filed within the thirty days granted to Anderson, the trial court erred in imposing a sanction against Anderson.
The portion of the order assessing attorney fees against Anderson is reversed. The remainder of the order is affirmed.
HUME and RULAND, JJ., concur.