[Cite as State v. Francis, 2014-Ohio-443.]

                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY

STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2013-05-078

                                                   :            OPINION
    - vs -                                                       2/10/2014
                                                   :

JAMES C. FRANCIS,                                  :

        Defendant-Appellant.                       :

       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2011-09-1533

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Repper, Pagan, Cook, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio
45044, for defendant-appellant

        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, James C. Francis, appeals from the decision and entry of

the Butler County Common Pleas Court denying his petition for postconviction relief. Francis

argues the trial court erred in denying his PCR petition because he presented sufficient

evidence to demonstrate that his trial counsel provided him with ineffective assistance by

giving him erroneous sentencing information regarding the four counts of child rape to which
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he pled guilty and by not filing a timely notice of appeal from his conviction on those offenses.

For the reasons that follow, we conclude that the trial court did not abuse its discretion in

denying Francis' ineffective assistance claim regarding erroneous sentencing information but

did err in denying, on the basis that it lacked jurisdiction to rule on it, his ineffective

assistance claim regarding the failure to file a timely notice of appeal. Therefore, we remand

this matter to the trial court, with instructions that it rule on Francis' ineffective assistance

claim regarding his trial counsel's failure to file a timely notice of appeal.

       {¶ 2} In 2012, Francis pled guilty to four counts of rape, and in return, the state

dismissed specifications that alleged the victims were under the age of ten. A "plea of guilty

and a jury waiver" executed by Francis specified that the maximum prison term for each of

the offenses to which he was pleading guilty was life in prison, and that a prison term was

mandatory and presumed necessary. At Francis' sentencing hearing, Francis' trial counsel

requested leniency for Francis, asking that his sentences on each of the counts be made to

run concurrently so that he would be eligible for probation after ten years. The trial court

imposed a ten-year prison sentence on Francis on each of the four counts, ordering that

Francis' ten-year sentences on counts one and two were to be served concurrently and that

his ten-year sentences on count three and four were to be served concurrently. However,

the trial court ordered that Francis' concurrent sentences on counts three and four were to be

served consecutive to his concurrent sentences on counts one and two, thereby sentencing

Francis to a minimum 20-year prison term. Francis filed a notice of appeal from his

conviction, but this court dismissed it because it was filed one day too late. Francis then filed

a motion for a delayed appeal, which this court also denied.

       {¶ 3} Francis then filed the PCR petition that forms the basis of this appeal, in which

he argued that his trial counsel provided him with ineffective assistance by failing to provide

him with accurate sentencing information regarding the four counts of rape to which he pled
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guilty and by failing to file a timely notice of appeal from his convictions. Francis attached to

his PCR petition his affidavit and his trial counsel's affidavit. The state moved for summary

judgment on Francis' PCR petition, and Francis filed a motion for cross-summary judgment.

        {¶ 4} The trial court denied Francis' PCR petition, determining that (1) "it lacks

jurisdiction to counter or overturn a decision by an appellate court as to whether or not

Francis timely filed a Notice of Appeal"; (2) "Francis' petition for postconviction relief fails

because the claimed ineffective assistance regarding the plea and subsequent imposition of

sentence, even with [trial] counsel's affidavit, is diametrically opposite of reality as evidenced

by the recorded proceedings"; and (3) Francis "fail[ed] to establish substantive grounds for

relief in his petition."

        {¶ 5} Francis now appeals from the trial court's decision and entry denying his PCR

petition and assigns the following as error:

        {¶ 6} Assignment of Error No. 1:

        {¶ 7} THE TRIAL COURT ERRED IN OVERRULING FRANCIS' POST-CONVICTION

PETITION.

        {¶ 8} Francis presents a number of arguments in support of his contention that the

trial court erred in overruling his PCR petition. We shall address them in an order and

manner that will facilitate our analysis of the issues presented in this appeal.

        {¶ 9} First, Francis argues this court should apply a de novo standard of review in

considering the trial court's decision to overrule his PCR petition, because this matter is a

"postconviction summary judgment case" under R.C. 2953.21(D). He further argues that

since this matter is a postconviction summary judgment case, the trial court erred by not

construing, in his favor, the facts set forth in his and his trial counsel's affidavits.

        {¶ 10} R.C. 2953.21 states in pertinent part:

              (A)(1)(a) Any person who has been convicted of a criminal offense *
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            * * and who claims that there was such a denial or infringement of
            the person's rights as to render the judgment void or voidable under
            the Ohio Constitution or the Constitution of the United States * * *
            may file a petition in the court that imposed sentence, stating the
            grounds for relief relied upon, and asking the court to vacate or set
            aside the judgment or sentence or to grant other appropriate relief.
            The petitioner may file a supporting affidavit and other documentary
            evidence in support of the claim for relief.

            ***

            (C) * * * Before granting a hearing on a petition filed under division
            (A) of this section, the court shall determine whether there are
            substantive grounds for relief. In making such a determination, the
            court shall consider, in addition to the petition, the supporting
            affidavits, and the documentary evidence, all the files and records
            pertaining to the proceedings against the petitioner, including, but
            not limited to, the indictment, the court's journal entries, the
            journalized records of the clerk of the court, and the court reporter's
            transcript. * * * If the court dismisses the petition, it shall make and
            file findings of fact and conclusions of law with respect to such
            dismissal.

            (D) Within ten days after the docketing of the petition, or within any
            further time that the court may fix for good cause shown, the
            prosecuting attorney shall respond by answer or motion. Within
            twenty days from the date the issues are raised, either party may
            move for summary judgment. The right to summary judgment shall
            appear on the face of the record.

            (E) Unless the petition and the files and records of the case show
            the petitioner is not entitled to relief, the court shall proceed to a
            prompt hearing on the issues even if a direct appeal of the case is
            pending. If the court notifies the parties that it has found grounds
            for granting relief, either party may request an appellate court in
            which a direct appeal of the judgment is pending to remand the
            pending case to the court.

      {¶ 11} R.C. 2953.21 provides three methods for adjudicating a PCR petition. First,

under R.C. 2953.21(D), either party may move for summary judgment on the issues raised.

In ruling on a summary judgment motion in proceedings involving a PCR petition, the trial

court must use the same standards set forth in Civ.R. 56(C), i.e., a party is entitled to

summary judgment only if there is no genuine issue of material fact and reasonable minds

can come to but one conclusion and that conclusion is adverse to the party against whom the

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                                                                         Butler CA2013-05-078

motion for summary judgment is made. State v. Williams, 165 Ohio App. 3d 594, 2006-Ohio-

617, ¶ 23 (11th Dist.2006). Also, in granting summary judgment, the trial court must construe

any conflicts in the evidence in favor of the nonmoving party. Id. Summary judgment in

postconviction proceedings is appropriate only if the right to summary judgment appears on

the face of the record. R.C. 2953.21(D); State v. Halliwell, 134 Ohio App. 3d 730, 736 (8th

Dist.1999). Therefore, the trial court is not authorized to consider evidence "dehors" the

record i.e., outside the record, in determining the motion. Williams at ¶ 25.

       {¶ 12} Second, under R.C. 2953.21(C), "a trial court properly denies a defendant's

petition for postconviction relief without holding an evidentiary hearing where the petition, the

supporting affidavits, the documentary evidence, the files, and the records do not

demonstrate that petitioner set forth sufficient operative facts to establish substantive

grounds for relief." State v. Calhoun, 86 Ohio St.3d 279, paragraph two of the syllabus

(1999). "In reviewing a petition for postconviction relief filed pursuant to R.C. 2953.21, a trial

court should give due deference to affidavits sworn to under oath and filed in support of the

petition, but may, in the sound exercise of discretion, judge the credibility of the affidavits in

determining whether to accept the affidavits as true statements of fact." Id. at paragraph one

of the syllabus. If the court summarily dismisses the petition without holding an evidentiary

hearing, it must make and file findings of fact and conclusions of law with respect to such

dismissal. R.C. 2953.21(C).

       {¶ 13} Third, under R.C. 2953.21(E), if the petition and the files and records of the

case fail to show that the petitioner is not entitled to relief, the court must hold a prompt

evidentiary hearing on the issues raised.

       {¶ 14} Here, the parties filed cross-motions for summary judgment on the issues

raised by Francis' PCR petition. The trial court mentioned this fact in its decision and entry

denying Francis' PCR petition, though, notably, the trial court did not expressly state that it
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was granting summary judgment to the state on Francis' PCR petition. Indeed, the trial court

was not permitted to award Francis summary judgment under R.C. 2953.21(D) on his

ineffective assistance claims in his PCR petition because resolution of those claims was

dependent on evidence dehors the record, namely, Francis' and his trial counsel's affidavits.

R.C. 2953.21(D). Williams, 165 Ohio App. 3d 594, 2006-Ohio-617, ¶ 25. The trial court was

also not permitted to award summary judgment to the state under R.C. 2953.21(D) on

Francis' claims in his PCR petition because the trial court would have been obligated in the

summary judgment proceedings to construe the evidence Francis presented in support of his

PCR petition, i.e., his and his trial counsel's affidavits, in the light most favorable to Francis

as the adverse party. Id. at ¶ 23.

       {¶ 15} A review of the trial court's decision and entry shows that the trial court failed to

set forth the distinction between granting summary judgment to the state on a PCR petition

under R.C. 2953.21(D) and summarily dismissing a PCR petition under R.C. 2953.21(C).

Nevertheless, we interpret the trial court's decision as one that summarily dismissed Francis'

petition under R.C. 2953.21(C) rather than as one that granted summary judgment to the

state under R.C. 2953.21(D). We base this determination on the fact that, in denying

Francis' PCR petition, the trial court undoubtedly considered Francis' and his trial counsel's

affidavits, both of which were evidence dehors the record, in evaluating Francis' ineffective

assistance claims. Additionally, the trial court noted toward the end of its decision and entry,

that while neither party had requested an evidentiary hearing, such a hearing was not

necessary "where the petition, the supporting affidavits, the documentary evidence, the files,

and the records do not set forth sufficient operative facts to establish substantive grounds for

relief[,]" and that "Francis fail[ed] to establish substantive grounds for relief in his petition."

       {¶ 16} Turning now to Francis' argument that this court should apply a de novo

standard of review with regard to the trial court's decision to deny his PCR petition, we note
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that in State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58, the Ohio Supreme Court

stated:

            The court of appeals erred by using a de novo standard of review in
            reversing the trial court's findings. We hold that a trial court's
            decision granting or denying a postconviction petition filed pursuant
            to R.C. 2953.21 should be upheld absent an abuse of discretion; a
            reviewing court should not overrule the trial court's finding on a
            petition for postconviction relief that is supported by competent and
            credible evidence.

See also State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, ¶ 45-46 (following Gondor).

       {¶ 17} Francis requests that we follow the Eleventh District Court of Appeals' decision

in State v. Williams, 11th Dist. Trumbull No. 2007-T-0105, 2008-Ohio-3257, ¶ 25-26 (Williams

II), which held that a trial court's decision to grant summary judgment to the state and against

a PCR petitioner under R.C. 2953.21(D) is to be reviewed under a de novo standard, and

that "White and Gondor are distinguishable * * * on the grounds that in those cases the trial

courts ruled on postconviction relief petitions after holding evidentiary hearings." However,

Williams II is distinguishable from this case in that, in Williams II, summary judgment was

granted to the state under R.C. 2953.21(D). In this case, by contrast, we have interpreted

the trial court's decision as one that summarily dismissed Francis' PCR petition under R.C.

2953.21(C). Nevertheless, there is at least one court of appeals that has refused to apply

Gondor in cases in which a PCR petition was summarily dismissed without holding an

evidentiary hearing.

       {¶ 18} In State v. Harrington, 172 Ohio App.3d 595, 2007-Ohio-3796, ¶ 9 (4th

Dist.2007), the court refused to apply the abuse of discretion standard set forth in Gondor to

cases in which the trial court summarily dismisses a PCR petition without holding an

evidentiary hearing. The Harrington court stated at ¶ 9:

            There appears to be some uncertainty concerning the appropriate
            standard of review conducted by an appellate court on this type of
            proceeding. Appellate courts, including this one, have applied
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              varying standards, including de novo, see State v. Gibson,
              Washington App. No. 05CA20, 2005-Ohio-5353, 2005 WL
              2472063, abuse of discretion, see State v. Lemaster (Sept. 28,
              1999), Pickaway App. No. 98CA46, 1999 WL 787915, and a mixed
              question of fact and law, see State v. Hoffner, Lucas App. No. L-01-
              1281, 2002-Ohio-5201, 2002 WL 31162813, at ¶ 6. The Supreme
              Court of Ohio recently held that courts of appeal are to apply an
              abuse-of-discretion standard in the context of reviewing a trial
              court's decision on a petition after it conducts an evidentiary
              hearing. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860
              N.E.2d 77, ¶ 1 and 58. However, Gondor did not address the
              situation in which the trial court summarily dismisses a petition
              without holding a hearing. Absent such a determination, we
              conclude that the better approach is to apply a mixed question of
              law and fact analysis to determine whether the petition states
              substantive grounds for relief. See Hoffner at ¶ 6.

       {¶ 19} In support of his claim that Gondor and White apply only to proceedings

involving PCR petitions in which the trial court has held an evidentiary hearing, Francis points

to the following language in Gondor at ¶55-56:

              The postconviction judge sees and hears the live postconviction
              witnesses, and he or she is therefore in a much better position to
              weigh their credibility than are the appellate judges.

              A de novo review by appellate courts would relegate the
              postconviction trial court to a mere testimony-gathering apparatus.
              Nothing in R.C. 2953.21 indicates that that should be the case.

       {¶ 20} However, Francis is ignoring other language in Gondor that supports applying it

to PCR proceedings in which no evidentiary hearing was held. In particular, Francis

overlooks that Gondor relied on its prior decision in Calhoun in which no evidentiary hearing

was held, in determining that the proper standard of appellate review was abuse-of-

discretion.

       {¶ 21} As stated in Gondor at ¶ 51-52:

              In postconviction cases, a trial court has a gatekeeping role as to
              whether a defendant will even receive a hearing. In State v.
              Calhoun (1999), 86 Ohio St.3d 279, 714 N.E.2d 905, paragraph two
              of the syllabus, this court held that a trial court could dismiss a
              petition for postconviction relief without a hearing "where the
              petition, the supporting affidavits, the documentary evidence, the
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             files, and the records do not demonstrate that petitioner set forth
             sufficient operative facts to establish substantive grounds for relief."
             This court reversed the judgment of the appellate court in Calhoun,
             holding that "the trial court did not abuse its discretion in dismissing
             the credibility of [the] affidavits," which served as the basis for his
             petition. (Emphasis added.) Id. at 286, 714 N.E.2d 905.

             We thus determined in Calhoun that the trial court's gatekeeping
             function in the postconviction relief process is entitled to deference,
             including the court's decision regarding the sufficiency of the facts
             set forth by the petitioner and the credibility of the affidavits
             submitted. We established in Calhoun that a court reviewing the
             trial court's decision in regard to its gatekeeping function should
             apply an abuse-of-discretion standard. The consistent approach is
             to grant that same level of deference to the trial court in regard to its
             post-hearing decision.

       {¶ 22} In light of the foregoing, we conclude that under Gondor, a court of appeals

must use an abuse-of-discretion standard, rather than a de novo standard, in reviewing a trial

court's decision to summarily deny a PCR petition without holding an evidentiary hearing.

       {¶ 23} Turning now to Francis' ineffective assistance claims, we note that in order to

establish ineffective assistance of counsel, a defendant must show that his trial counsel's

representation fell below an objective standard of reasonableness, and that there is a

reasonable probability that but for that defective representation, the outcome of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688-694,

104 S.Ct. 2052 (1984). A reasonable probability is a probability sufficient to undermine

confidence in the outcome of the proceeding. Id. at 694.

       {¶ 24} Francis' first claim is that his trial counsel provided him with ineffective

assistance by promising him that he would receive a "flat 10-year sentence" for pleading

guilty to the four counts of child rape. In support of this claim, Francis points to his affidavit in

which he stated that a few days before his plea hearing, his trial counsel told him that he had

spoken with the trial judge and that his sentence would be "a flat ten years if I pled and that I

would be eligible for Judicial Release after five (5) years and good time under House Bill

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86[,]" and "[t]hat my plea of guilty was based on my counsel's representation that I would

receive a ten year sentence with the possibility of Judicial Release and good time." Francis

also points to his trial counsel's affidavit in which counsel averred that "[d]uring plea

negotiations, it was my understanding that if Mr. Francis plead guilty [sic], he would receive a

sentence of 10 years imprisonment."

       {¶ 25} Francis asserts that his claim that his trial counsel "promise[d]" him that he

would receive a flat ten-year sentence was "corroborated" by his trial counsel's affidavit.

However, a review of trial counsel's affidavit and the entire record of this case, including the

plea and sentencing hearing transcripts, belies Francis' claim that his trial counsel promised

him that he would he receive a flat, ten-year sentence if he pled guilty to the four counts of

child rape.

       {¶ 26} As noted earlier, the Ohio Supreme Court has stated that in reviewing a PCR

petition, "a trial court should give due deference to affidavits sworn to under oath and filed in

support of the petition, but may, in the sound exercise of discretion, judge the credibility of

the affidavits in determining whether to accept the affidavits as true statements of fact."

Calhoun, 86 Ohio St.3d 279, paragraph one of the syllabus. "In determining the credibility of

supporting affidavits in postconviction relief proceedings," courts "should consider all relevant

factors[,]" including:

              (1) whether the judge reviewing the postconviction relief petition
              also presided at the trial, (2) whether multiple affidavits contain
              nearly identical language, or otherwise appear to have been drafted
              by the same person, (3) whether the affidavits contain or rely on
              hearsay, (4) whether the affiants are relatives of the petitioner, or
              otherwise interested in the success of the petitioner's efforts, and
              (5) whether the affidavits contradict evidence proffered by the
              defense at trial. Moreover, a trial court may find sworn testimony in
              an affidavit to be contradicted by evidence in the record by the
              same witness, or to be internally inconsistent, thereby weakening
              the credibility of that testimony. Id. at 754-756, 651 N.E.2d at 1323-
              1324.

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             Depending on the entire record, one or more of these or other
             factors may be sufficient to justify the conclusion that an affidavit
             asserting information outside the record lacks credibility. Such a
             decision should be within the discretion of the trial court. A trial
             court that discounts the credibility of sworn affidavits should include
             an explanation of its basis for doing so in its findings of fact and
             conclusions of law, in order that meaningful appellate review may
             occur.

Calhoun at 284-285.

       {¶ 27} Applying these factors to this case we note that the same judge reviewing the

PCR petition in this case also presided at Francis' plea and sentencing, and thus was in the

best position to judge the credibility of Francis' claim that his trial counsel promised him that

he would be sentenced to a "flat ten years" in prison if he pled guilty. Francis is obviously

interested in the success of his own petition. Francis' argument that he was promised that he

would be sentenced to prison for only ten years is contradicted by his statement during the

plea colloquy that the only promise he received in return for his guilty plea was that the state

would delete the language in the indictment regarding the age of his victims.

       {¶ 28} Francis's trial counsel did state in his affidavit that "[d]uring plea negotiations, it

was my understanding that if Mr. Francis plead [sic] guilty, he would receive a sentence of 10

years imprisonment." However, Francis' trial counsel does not state in his affidavit that he

promised Francis that he would only receive a ten-year sentence. Additionally, there is

nothing in the transcript of the sentencing hearing to show that either Francis or his trial

counsel objected when the trial court stated that Francis could be sentenced to four

consecutive terms, and there is nothing in the transcript of the sentencing hearing to show

that Francis or his trial counsel were surprised when the trial court ordered Francis to serve

his concurrent ten-year terms on counts three and four consecutive to his concurrent ten-year

terms on counts one and two. In light of these circumstances, we conclude that the trial court

did not abuse its discretion in determining that Francis failed to present sufficient evidence to

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establish a substantive ground for relief by his ineffective assistance claim regarding the

sentencing advice he received from his trial counsel. However, we conclude that the trial

court did err in denying Francis' second claim in his PCR petition, i.e., his trial counsel

provided him with ineffective assistance by failing to file a timely notice of appeal from his

conviction, on the basis that it lacked jurisdiction to rule on it.

       {¶ 29} Francis stated in his affidavit that "I asked my retained attorneys to preserve my

right to appeal, but they told me that their obligation to me ended at the conclusion of the

sentencing hearing[.]" Francis' trial counsel's affidavit stated that, after sentencing, he

advised Francis that Francis could appeal the trial court's decision but that trial counsel would

not represent Francis in that appeal because his law office did not have an appellate practice

and he did not have the experience to handle such an appeal and that Francis should seek

other representation. Francis' trial counsel also stated in his affidavit that he did not file a

notice of appeal for Francis.

       {¶ 30} Francis cited Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 1035

(2000) in support of his second ineffective assistance claim. Flores-Ortega states in

pertinent part:

             We have long held that a lawyer who disregards specific
             instructions from the defendant to file a notice of appeal acts in a
             manner that is professionally unreasonable. See Rodriquez v.
             United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969);
             cf. Peguero v. United States, 526 U.S. 23, 28, 119 S.Ct. 961, 143
             L.Ed.2d 18 (1999) ("[W]hen counsel fails to file a requested appeal,
             a defendant is entitled to [a new] appeal without showing that his
             appeal would likely have had merit"). This is so because a
             defendant who instructs counsel to initiate an appeal reasonably
             relies upon counsel to file the necessary notice. Counsel's failure to
             do so cannot be considered a strategic decision; filing a notice of
             appeal is a purely ministerial task, and the failure to file reflects
             inattention to the defendant's wishes.

       {¶ 31} In its decision and entry denying Francis' PCR petition, the trial court

characterized Francis' second ineffective assistance claim as an assertion by Francis that "he

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was denied effective assistance of counsel as the appellate court rejected his Notice of

Appeal as untimely." The trial court then dismissed Francis' second claim on the basis that

the trial court "lacks jurisdiction to counter or overturn a decision by an appellate court as to

whether or not Francis timely filed a Notice of Appeal." We agree with Francis that the trial

court's ruling on this claim missed the point of his argument. Francis was not asking the trial

court "to counter or overturn" this court's decision as to whether or not Francis filed a timely

notice of appeal. Instead, Francis was arguing that his trial counsel provided him with

ineffective assistance by failing to file a timely notice of appeal. We conclude that the trial

court erred by refusing to rule on this claim on the ground that it lacked jurisdiction to rule on

it.

       {¶ 32} The state acknowledges, in a footnote to its brief, that "the trial court did not

address the merits of this issue," but contends that the trial court's decision denying Francis'

PCR petition should be affirmed on the principle that a correct judgment should not be

reversed merely because erroneous reasons have been assigned in support of it. This

principle cannot apply here, however, as the decision whether to grant or deny a PCR

petition is committed to the trial court's discretion, and this court must not overturn the trial

court's decision unless it constitutes an abuse of discretion. Gondor, 112 Ohio St.3d 377,

2006-Ohio-6679 at ¶ 58. Therefore we must remand this matter to the trial court with

instructions that it exercise its discretion in determining whether to grant or deny the second

claim in Francis' PCR petition.

       {¶ 33} In light of the foregoing, Francis' assignment of error is sustained to the extent

indicated. On remand, the trial court shall rule on Francis' second claim in his PCR petition in

which Francis asserts that his trial counsel provided him with ineffective assistance by failing

to timely file a notice of appeal on his behalf.

       {¶ 34} The trial court's judgment is reversed as to Francis' second claim, which shall
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be remanded for further proceedings consistent with this opinion.

      S. POWELL and RINGLAND, JJ., concur.

                                           - 14 -


995 So.2d 514 (2008)
SHANNON
v.
STATE.
No. 5D08-2131.
District Court of Appeal of Florida, Fifth District.
November 10, 2008.
Decision without published opinion. Affirmed.


101 F.3d 708
Ballardv.Chater*
NO. 95-6849
United States Court of Appeals,Eleventh Circuit.
Oct 29, 1996

1
Appeal From:  N.D.Ala., No. 94-01215-CV-HM-NE

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 34-3


                                Court of Appeals
                         Sixth Appellate District of Texas

                                   JUDGMENT

 Jermaine Damon Davis, Appellant                       Appeal from the 6th District Court of Lamar
                                                       County, Texas (Tr. Ct. No. 27880).
 No. 06-19-00167-CR         v.                         Memorandum Opinion delivered by Justice
                                                       Stevens, Chief Justice Morriss and Justice
 The State of Texas, Appellee                          Burgess participating.

       As stated in the Court’s opinion of this date, we find no error in the judgment of the court
below. We affirm the judgment of the trial court.
       We note that the appellant, Jermaine Damon Davis, has adequately indicated his inability
to pay costs of appeal. Therefore, we waive payment of costs.

                                                      RENDERED APRIL 6, 2020
                                                      BY ORDER OF THE COURT
                                                      JOSH R. MORRISS, III
                                                      CHIEF JUSTICE

ATTEST:
Debra K. Autrey, Clerk


480 F.2d 657
UNITED STATES of America, Appellee,v.Gregory Crawford LAVIN, Appellant.
No. 519, Docket 72-2028.
United States Court of Appeals,Second Circuit.
Argued Jan. 18, 1973.Decided June 5, 1973.

M. James Spitzer, Jr., New York Civil Liberties Union, New York City, for appellant.
George E. Wilson, Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty., Peter L. Truebner and Richard J. Davis, Asst. U. S. Attys., New York City, on the brief) for appellee.
Before FRIENDLY, OAKES and TIMBERS, Circuit Judges.
TIMBERS, Circuit Judge:

1
Gregory Crawford Lavin appeals from a judgment of conviction entered June 9, 1972 following a nonjury trial in the Southern District of New York, Milton Pollack, District Judge, 346 F.Supp. 76 (S.D.N.Y.1972), for refusing to submit to induction into the Armed Forces of the United States, in violation of the Military Selective Service Act of 1967, 50 U.S.C. App. Sec. 462(a) (1970), and 32 C.F.R. Sec. 1632.14 (1972).

2
On appeal, appellant raises two claims of error, each of which was considered and rejected by the district court: (1) that his Selective Service file, which was the basis for the government's case, was not properly authenticated and therefore was erroneously admitted in evidence; and (2) that he was denied the required consideration by his local board of an alleged medical defect.  For the reasons below, we affirm.I.

3
On February 26, 1970, appellant, at the time a college senior with a 2-S (full-time undergraduate college student) draft classification, was given a pre-induction physical examination.  Pursuant to that examination, he was recalled for specialty consultations on June 1, 1970, at which time he was seen by a cardiologist and an ophthalmologist.  The result of the examination and consultations was that he was found acceptable for induction into the Armed Forces.

4
During March and April of 1970, appellant had applied for reclassification as a conscientious objector.  That claim was denied on August 20, the local board having concluded that he opposed only the war in Southeast Asia.  He was reclassified from 2-S to 1-A (available for military service).

5
Following an unsuccessful appeal of that reclassification, appellant was ordered on December 14 to report for induction on December 28.  He complied with that order to the extent of reporting to the Armed Forces Examining and Entrance Station in New York City where he was given another physical examination.  He again was found acceptable for induction.  When called upon to step forward, however, he refused to submit for induction.

6
On August 13, 1971, appellant was charged in a one count indictment with refusing to submit for induction.  He waived jury trial.  The case was tried before Judge Pollack on May 17 and 18, 1972.  The government introduced appellant's Selective Service file and called a number of witnesses.1  Appellant did not testify and offered no evidence.  On June 9, the court filed a written opinion finding appellant guilty as charged.  On August 16, he was sentenced to two years imprisonment, six months to be served in a jail-type institution and the balance suspended.  A two year probation term was also imposed to commence upon his release from confinement, during which he is required to secure and hold employment of national importance, to the satisfaction of the Probation Officer.  He has been enlarged on bail pending appeal.

7
Although appellant urged a number of legal grounds in the district court2 in support of his motion for acquittal, all of which were carefully considered and rejected by Judge Pollack in his well reasoned opinion, appellant raises on appeal only the two claims of error stated above, to which we now turn.

II.

8
Appellant's first contention is that the district court erred in admitting in evidence his Selective Service file on the basis of an authentication by an employee of the New York City, rather than the New York State, Selective Service System.

9
To prove the essential elements of its case, the government relied largely on appellant's Selective Service file.  To establish the required foundation for the file, the government called Mrs. Kathryn Broadhurst to authenticate it.  She had been employed by the New York City Selective Service System for 28 years.  Appellant, having registered originally in Peekskill, New York, was a registrant of a local board there which was included in the New York State Selective Service System.  The applicable regulation clearly provides that the City system is not a component of the State system, the two being in all respects independent of each other.3

10
Mrs. Broadhurst identified appellant's registration card and other documents in the file as records which were made, received and kept in the regular course of business of the local board and she testified that it was the regular course of business of the local board to make, receive and keep such records.  She admitted, however, that she had no personal knowledge of the documents in the file or of their genuineness; that her knowledge of the contents of the file was based on her examination of the file and her familiarity with Selective Service System practices; and that she had never seen the file prior to the afternoon of May 17, 1972, the date on which she appeared as a witness.4

11
Appellant argues from these facts that his file was never properly authenticated, because Mrs. Broadhurst, the witness presented at the trial as the custodian of the file, was not the proper custodian within the meaning of the law.

12
Under the applicable Selective Service regulation, 32 C.F.R. Sec. 1606.35(a) (1972), "[a]ny officer or employee of the Selective Service System who produces the records of a registrant in court shall be considered the custodian of such records for the purpose of this section."  (emphasis added).  This provision broadens the class of persons who may authenticate such records under the federal statute and rules5 so as to include officers and employees of the Selective Service System other than those with actual permanent custody over, and familiarity with, a registrant's records.  See, e. g., Yates v. United States, 404 F.2d 462, 466-67 (1 Cir. 1968), cert. denied, 395 U.S. 925 (1969).

13
The question presented here is whether an employee of the Selective Service System other than a person employed by the local board where the registrant's file was maintained may authenticate that file once it has been removed from a continuous chain of custody within the Selective Service System-here, removed solely for the purpose of placing it in the custody of the Assistant United States Attorney in charge of the criminal case.  While the decisions that have dealt with the general problem of authentication of Selective Service records uniformly have adopted a liberal interpretation of Section 1606.35(a), none has faced this precise issue.

14
In Yates, the defendant originally had registered with a local board in South Carolina.  When ordered to report for induction, he requested a transfer of induction to Boston where he then lived.  Upon his refusal to submit to induction, he was indicted and tried in Massachusetts.  At trial, his Selective Service file, which had been maintained in South Carolina, was offered in evidence by the government through the Deputy Director of Selective Service for Massachusetts, who testified that (1) the file was an official government record; (2) that he was the custodian of the file; and (3) that the material contained therein was made and kept in the ordinary course of Selective Service business.  The Court of Appeals, in rejecting the defendant's contention that the jurisdiction of the witness was limited to Massachusetts whereas the file had been maintained in South Carolina, held, first, that under the regulation (Section 1606.35(a)) the Massachusetts Deputy Director was properly considered the custodian of the file, he being an officer of the Selective Service System; and, second, that his status as custodian was not defeated simply because he had no personal knowledge of the substance of the file: "A custodian of records is not obliged to possess personal knowledge of the content of the file.  He need only authenticate its source." 404 F.2d at 467.

15
Other cases involving similar facts have reached like results.  In United States v. Rogers, 454 F.2d 601 (7 Cir. 1971), for example, the defendant's file was held properly authenticated by an Air Force Lt. Colonel assigned to the Illinois Selective Service System who had testified only that he had read the file and that it had been kept in the ordinary course of the System's business.  Numerous other cases (including those cited below by Judge Pollack, 346 F.Supp. at 83) have sanctioned authentication by state supervisory personnel who lacked knowledge of the precise record-keeping methods utilized by the registrant's local board.  E. g., United States v. Holmes, 387 F.2d 781, 783-84 (7 Cir. 1967), cert. denied, 391 U.S. 936 (1968); Pardo v. United States, 369 F.2d 922, 925-26 (5 Cir. 1966).  Cf. United States v. Ward, 173 F.2d 628 (2 Cir. 1949) (clerk in Office of Selective Service Records).6

16
The rationale of these cases is unmistakable-that the peculiar administrative problems of the Selective Service System justify some relaxation of the strict rules of authentication in order to avoid undue disruption of the System with little or no benefit to the defendant.  The wisdom of that policy is well exemplified here where the file gives no hint of unreliability and appellant does not challenge the regularity of anything contained therein.  In cases of this sort, therefore, the courts uniformly have sanctioned authentication of a file, as the regulation provides, by "[a]ny officer or employee of the Selective Service System" (emphasis added)-not limited to those employees assigned either to the particular local board where the registrant's file is maintained or to the state system with jurisdiction over that local board.  We see no justification, under the circumstances of the instant case, for imposing a limitation upon the effect of the regulation which no court, so far as we are aware, has seen fit to impose.

17
This does not end our inquiry, however, for the chain of custody within the Selective Service System that was present in Yates and other cases7 was interrupted here for a period of time.  While we have not been informed exactly when the file was removed from appellant's local board, it is clear that the file was delivered to Mrs. Broadhurst on May 17, 1972 by the Assistant United States Attorney in charge of the case.

18
The theory behind the exception to the hearsay rule for records made in the regular course of business is "to permit the admission of business memoranda which impart a circumstantial guarantee of trustworthiness.  The test is one of reliability."  United States v. Hickey, 360 F.2d 127, 143 (7 Cir.), cert. denied, 385 U.S. 928 (1966).  See Ross v. American Export Isbrandtsen Lines, Inc., 453 F.2d 1199, 1201 n. 2 (2 Cir. 1972).  A critical element of "reliability" is a continuous chain of custody that is not likely to defeat that guarantee of trustworthiness.  What must be demonstrated is that "the possibilities of misidentification and adulteration be eliminated, not absolutely, but as a matter of reasonable probability."  Gass v. United States, 416 F.2d 767, 770 (D.C. Cir. 1969).  In the final analysis, the determination of whether that reliability exists must be left to the sound discretion of the trial judge.  E. g., United States v. S. B. Penick & Co., 136 F.2d 413, 415 (2 Cir. 1943).

19
Here the district court was satisfied that the file retained that essential trustworthiness the absence of which would defeat its admissibility.  On the particular facts of this case, we are unwilling to overturn that determination.  In so holding, however, we place special reliance upon two factors: (1) that the only break in the Selective Service System's continuous chain of custody was when the file was in the possession of the Assistant United States Attorney in charge of the case-a break which, without more, does not suggest any increased likelihood of unreliability; and (2) that appellant has made no claim that the file as received in evidence contained any irregularities, and our examination of the file discloses none.

20
In short, while we do not condone the laxity with which the government approached the laying of a proper foundation for the introduction of appellant's file in evidence, neither the authentication by Mrs. Broadhurst nor the temporary possession of the file by the Assistant United States Attorney created sufficient doubt as to its reliability to render it inadmissible.

21
We hold that the district court did not err in admitting the file in evidence.

III.

22
Appellant's second contention is that his local board violated both the Selective Service regulation and the requirements of due process when it failed to consider in advance of his pre-induction physical examination on February 26, 1970 two medical reports which had been submitted by appellant on February 20 and 26.

23
On February 20, six days before he was scheduled to report for a pre-induction physical, appellant submitted to his local board a letter from Dr. Philip Knapp, a New York ophthalmologist.  The letter states that Dr. Knapp had examined appellant in 1966 and that he had shown an esotropia.8  A second letter from Dr. Maurice Tannenbaum, submitted by appellant at the Armed Forces Examining and Entrance Station on the date of his physical, stated that he had shown "Alternating Esotropia since birth".9  Each of these documents bears a stamp indicating that it was reviewed and considered by the local board on June 1, 1970.  Appellant contends that he was entitled to have the letters considered by the local board in advance of his February 26 physical, and that the board's failure to do so violated both the applicable regulation and due process of law.10

24
Under the Selective Service regulation then in effect, "[w]henever a registrant . . . claims that he has one or more of the disqualifying physical defects which appear in the list [prescribed by the Surgeon General], the local board shall order him to present himself for interview with the medical advisor." 32 C.F.R. Sec. 1628.2(b) (1970) (revoked, 35 Fed.Reg. 13719, August 27, 1970).  Included in the list in effect at the time appellant's letters were submitted was the following provision:

25
"2-12 Eyes.  The causes for rejection for appointment, enlistment, and induction are

26
***

27
* * *

28
h. Ocular mobility and motility

29
***

30
* * *

31
(4) Strabismus of 40 prism diopters or more, uncorrectable by lenses to less than 40 diopters.

32
(5) Strabismus of any degree accompanied by documented diplopia."

33
Army Reg. 40-501, p 2-12h(4), (5).

34
Appellant's medical letters indicated that he had shown alternating esotropia, a form of strabismus.  Nothing in the letters, however, indicated that his condition was of the degree specified in p 2-12h(4), or that his condition was accompanied by diplopia as specified in p 2-12h(5).  Since the medical information presented by appellant to the local board did not claim one of the disqualifying physical defects specified in the Surgeon General's list, the board was not required under Section 1628.2(b) to refer him for an interview with the medical advisor.  Cf. United States ex rel. Signorelli v. Malleck, 314 F.Supp. 153, 155 n. 4 (D.Conn.), aff'd per curiam on opinion below, 428 F.2d 823 (2 Cir. 1969), cert. denied, 397 U.S. 1008 (1970).

35
By the same token, submission of the medical letters did not require the local board to reopen appellant's file immediately upon request.  The general rule, as stated in Mulloy v. United States, 398 U.S. 410 (1970), is that "where the registrant has set out new facts that establish a prima facie case for a new classification, a board must reopen to determine whether he is entitled to that classification."   Id. at 415.  Nevertheless, "the board need not reopen where the claim is plainly incredible, or where, even if true, it would not warrant reclassification. . . ." Id. at 418 n. 7 (emphasis added).  Here the medical evidence did not establish a prima facie case for reclassification.  The board was not required to reopen the file.  Consideration of the claim was properly left in the first instance to the medical personnel at the examining station.11

36
We affirm the judgment of conviction and we commend Judge Pollack for his characteristically lucid, carefully reasoned opinion.

37
Affirmed.

1
 The government's witnesses were Kathryn Broadhurst, a legal assistant for the New York City Selective Service System, who authenticated appellant's Selective Service file; James A. Vopni, a United States Army Captain, who testified to appellant's refusal to submit to induction on December 28, 1970; Dr. Jay N. Joy, a member of the United States Naval Reserve Medical Corps, who had examined appellant on December 28, 1970 and found him fit for induction; and Dr. Emanuel Krimsky, an ophthalmologist, who testified as an expert witness with regard to the eye defect claimed by appellant

2
 In addition to the claims pressed here, appellant raised at trial such arguments as the failure of the local board to secure and consider the documentation of the rejection (for physical reasons) of his 1966 application for admission to the United States Military Academy; the illegality of the United States' participation in the war in Southeast Asia; and the omission of entries in certain boxes on the Medical Examination Report of appellant's induction physical, purportedly invalidating that examination

3
 32 C.F.R. Sec. 1604.13 (1972)

4
 We note in passing that this entire situation could have been avoided by only slightly greater attention on the part of the government to its case and to the calendar.  Trial originally was set for March 21, 1972, but was adjourned at the government's request.  A number of further delays followed.  Finally, on May 17, appellant's counsel informed the court that appellant was en route from his home in upstate New York; and that, if trial could not begin before Judge Pollack either that day or the next, he would request that the case be assigned to another judge.  Judge Pollack agreed to begin the trial immediately after the submission to a jury of another case then before him.  Accordingly, the clerk called appellant's case on May 17 at 6:00 P.M. In the brief period available to it, the government was unable to transport an employee of appellant's local board to the courthouse.  As the headquarters office for the City system was close to the courthouse, the government arranged for an employee of that office to be used for authentication purposes at the trial
Particularly in view of appellant's stated willingness to go to trial on either May 17 or 18, we have no doubt that, even if appellant's counsel had refused to stipulate that Mrs. Broadhurst could testify as a custodian, the court would have granted a government request to adjourn the trial until the morning of May 18 to permit the attendance of an employee of appellant's local board.  That surely would have been the preferable course.
In ruling as we do, we nevertheless suggest in the future that the government take all necessary steps to assure that the authenticating witness is able to comply with the spirit, as well as the letter, of the applicable rules of authentication.

5
 The government records counterpart of the Federal Business Records Act, 28 U.S.C. Sec. 1733(a) (1970), provides that books or records of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence of which the same were made
Fed.R.Civ.P. 44(c) provides that such an official record may be evidenced by an official publication or by a copy attested by the officer having legal custody of the record or by his deputy.
Fed.R.Crim.P. 27 makes applicable to criminal cases the civil action provisions referred to above.

6
 Moreover, a lengthy line of cases has established the admissibility of Selective Service files authenticated by a clerk of a registrant's local board, who, while having personal knowledge of the methods used, was not the maker of the records and lacked knowledge of the substantive accuracy of the contents.  E. g., Nelloms v. United States, 399 F.2d 295, 296 (5 Cir. 1968), cert. denied, 393 U.S. 1071 (1969); Fults v. United States, 395 F.2d 852, 854 (10 Cir. 1968); Doty v. United States, 218 F.2d 93, 96 (8 Cir. 1955); United States v. Borisuk, 206 F.2d 338, 340 (3 Cir. 1953).  Cf. United States v. Rucker, 435 F.2d 950, 951 (8 Cir. 1971); United States v. Daniels, 429 F.2d 1273, 1274 (6 Cir. 1970) (both involving authentication by executive secretary for several local boards)

7
 In Yates, the file was mailed from the South Carolina board to the Massachusetts board.  In the intra-jurisdiction cases, the typical procedure is for the file to be delivered by the local board to the authenticating official who maintains possession until trial.  See, e. g., Pardo v. United States, supra, 369 F.2d at 926 n. 6

8
 This letter, dated February 19, 1970, reads as follows:
"TO WHOM IT MAY CONCERN:
Gregory C. Lavin asked that I send a report of his eye findings of January 14, 1966 to you.
The visual acuity in each eye is 20/20 for distance and near without correction and the near point of accommodation is thirteen centimeters in each eye.  He shows an esotropia of 25 for distance and 30 for near with a double hypertropia.  He has some peripheral fusion and gross steropsis on the Synoptophor.  He had normal retinal correspondence on the above instrument and with the the [sic] after-image test.
Sincerely yours,
/s/ Philip Knapp
Philip Knapp, M.D."

9
 This letter, dated February 24, 1970, was from Dr. Maurice Tannenbaum of Peekskill, New York.  The report contained therein was said to have been "[c]opied from the records of S. Karash M.D.  [deceased]." The report reads: "Alternating Esotropia since birth.  Last vision Nov. 1964 20/20 OD, 20/20 OS.  No fusion present."

10
 Appellant also argues that the two medical letters were not considered by the board at its meeting on August 20, 1970 when it rejected his conscientious objector application and reclassified him from 2-S to 1-A.  No evidence was offered in support of this claim.  As the district court correctly held, it therefore was entitled "to presume that the board acted in compliance with the regulations and considered all the material in the file including all of defendant's medical papers. . . ." 346 F.Supp. at 80.  See also Oestereich v. Selective Service System Local Bd. No. 11, 393 U.S. 233, 241 (1968) (Harlan, J., concurring); United States v. Harris, 436 F.2d 775, 777 (9 Cir. 1970), cert. denied, 402 U.S. 981 (1971)

11
 The cases urged by appellant to the contrary involved new information presented in settings of far greater immediacy than that present here-e. g., subsequent to a 1-A classification and the passing of a preinduction physical, United States v. King, 455 F.2d 345 (1 Cir. 1972); United States v. Moyer, 307 F.Supp. 613 (S.D.N.Y.1969), or subsequent to a notice to report for induction, United States v. Jackson, 454 F.2d 821 (5 Cir. 1972); United States v. Ford, 431 F.2d 1310 (1 Cir. 1970); Helden v. Laird, 306 F.Supp. 1351 (S.D.N.Y.1969)


636 F.3d 641 (2011)
AMERICAN BAR ASSOCIATION, Appellee
v.
FEDERAL TRADE COMMISSION, Appellant.
No. 10-5057.
United States Court of Appeals, District of Columbia Circuit.
Argued November 15, 2010.
Decided March 4, 2011.
*642 Michael D. Bergman, Attorney, Federal Trade Commission, argued the cause for appellant. With him on the briefs were Willard K. Tom, General Counsel, and John F. Daly, Deputy General Counsel for Litigation.
Mark D. Harris argued the cause for appellee. With him on the brief was James F. Segroves.
*643 Jack R. Bierig was on the brief for amici curiae American Medical Association, et al. in support of appellee.
Matthew M. Wright was on the brief for amici curiae State and Local Bar Associations in support of appellee.
Daniel E. Loeb was on the brief for amicus curiae American Institute of Certified Public Accountants in support of appellee.
Before: ROGERS and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court by Senior Circuit Judge EDWARDS.
EDWARDS, Senior Circuit Judge:
The Fair and Accurate Credit Transactions Act of 2003 ("FACT Act"), Pub.L. No. 108-159, 117 Stat.1952, amended the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and authorized the Federal Trade Commission ("FTC" or "Commission") to promulgate regulations requiring financial institutions and creditors to establish internal procedures to prevent identity theft. In November 2007, following notice-and-comment rulemaking, the FTC adopted Identity Theft Rules (the "Red Flags Rule" or "Rule"), 16 C.F.R. § 681 et seq., requiring financial institutions and creditors to implement and maintain programs to protect consumers from identity theft. Id. § 681.1. The Red Flags Rule incorporated, without amplification, the FACT Act's definitions of "credit" and "creditor." See id. § 681.1(b)(4) & (5). Neither the Rule nor the statute indicated whether lawyers or law firms were covered.
In April 2009, in response to some public confusion over the Rule's coverage, the FTC issued an Extended Enforcement Policy, explaining that "professionals, such as lawyers or health care providers, who bill their clients after services are rendered," would be considered "creditors" under the statute and, therefore, subject to the Rule's requirements. FTC, FTC Extended Enforcement Policy: Identity Theft Red Flags Rule, 16 CFR 681.1 ("Extended Enforcement Policy" or "Policy") at 1 n.3 (Apr. 30, 2009), reprinted in Joint Appendix ("J.A.") 76. In August 2009, appellee American Bar Association ("ABA") filed suit in the District Court challenging the Commission's Extended Enforcement Policy. The ABA claimed that the Commission had "intruded upon an area of traditional state regulation," Compl. ¶ 57 (Aug. 27, 2009), reprinted in J.A. 22-23, and that the Policy was unlawful absent "a clear statement from Congress" authorizing federal regulation over the practice of law, id. ¶ 41, J.A. 19. The District Court agreed with the ABA and enjoined the FTC from enforcing the Red Flags Rule against lawyers. ABA v. FTC, 671 F.Supp.2d 64 (D.D.C.2009). The FTC appealed to this court.
Oral arguments were heard by this court on November 15, 2010. Shortly thereafter, Congress passed the Red Flag Program Clarification Act of 2010 ("Clarification Act"), Pub.L. No. 111-319, 124 Stat. 3457 (to be codified at 15 U.S.C. § 1681m(e)(4)). On December 18, 2010, the President signed the act into law. The Clarification Act expressly amended the FACT Act, changed the definition of "creditor," and made it clear that a creditor's allowance of deferred payments alone could not trigger the identity theft protection requirements.
The enactment of the Clarification Act moots this case. It is well established that a case must be dismissed as moot if new legislation addressing the matter in dispute is enacted while the case is still pending. See, e.g., Dep't of Treasury v. Galioto, 477 U.S. 556, 559-60, 106 S.Ct. 2683, 91 L.Ed.2d 459 (1986) (holding that *644 when intervening legislation "alters the posture" of a pending case, "it is the duty of the appellate court" to vacate the judgment of the district court and dismiss the case as moot) (quotation omitted); Clarke v. United States, 915 F.2d 699 (D.C.Cir. 1990) (en banc) (same). In its current posture, this case concerns: (1) the enforcement of statutory provisions in the FACT Act that have been amended; and (2) a complaint that challenges an agency policy statement that purports to interpret a rule that was promulgated before the statute was amended. Because the new legislation has clearly altered the posture of the case, there is no longer a live "case or controversy" before this court. Accordingly, we are constrained to vacate the District Court's judgment and opinion, and remand the case to the District Court with directions to dismiss the case as moot.

I. Background
Congress enacted the FACT Act to "prevent identity theft, improve resolution of consumer disputes, improve the accuracy of consumer records, [and] make improvements in the use of, and consumer access to, credit information." Pub.L. No. 108-159, 117 Stat.1952, 1952. As noted above, the FACT Act amended the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and, among other things, authorized the FTC to "prescribe regulations requiring each financial institution and each creditor to establish reasonable policies and procedures" to prevent identity theft. 15 U.S.C. § 1681m(e)(1)(B). Acting pursuant to its delegated authority under the FACT Act, the FTC conducted notice-and-comment rulemaking proceedings, which resulted in the agency's promulgation of the Red Flags Rule. Identity Theft Red Flags and Address Discrepancies Under the Fair and Accurate Credit Transactions Act of 2003, 72 Fed.Reg. 63,718 (Nov. 9, 2007) (codified at 16 C.F.R. § 681 et seq.). The Red Flags Rule did not address whether lawyers or law firms were covered by the statute or the Rule.
The FTC initially set November 1, 2008, as the deadline for compliance with the Red Flags Rule. This deadline was extended to May 1, 2009, due to uncertainty regarding the Rule's coverage. Press Release, FTC, FTC Will Grant Six-Month Delay of Enforcement of `Red Flags' Rule Requiring Creditors and Financial Institutions to Have Identity Theft Prevention Programs (Oct. 22, 2008), reprinted in J.A. 70-71. In April 2009, the FTC issued the Extended Enforcement Policy to explain the Rule's coverage and delayed the compliance deadline to August 1, 2009. Extended Enforcement Policy, J.A. 76-78. The Extended Enforcement Policy stated that, in the agency's view, the term "creditor," as used in the Red Flags Rule and the FACT Act, included "all entities that regularly permit deferred payments for goods or services," including professionals "such as lawyers or health care providers, who bill their clients after services are rendered." Id. at 1 n. 3, J.A. 76. This amplification of the statute and the Rule was never the subject of notice-and-comment rulemaking.
The ABA filed a three-count complaint against the FTC in the District Court, seeking injunctive and declaratory relief against the Commission. In Count I, the ABA alleged that the Extended Enforcement Policy was unlawful under the "clear statement doctrine," because "the regulation of the practice of law is traditionally the province of the [S]tates" unless Congress grants the agency regulatory authority through clear and unambiguous statutory language. See Compl. ¶¶ 55-59, J.A. 22-23 (alteration in original) (quoting ABA v. FTC, 430 F.3d 457, 471 (D.C.Cir.2005)). Count II sought an injunction on the grounds that the FTC's action was arbitrary and capricious. Count III sought a *645 declaratory judgment. The ABA moved for summary judgment on Count I, urging the trial court to "set aside the Extended Enforcement Policy to the extent the FTC purports to apply the Red Flags Rule to lawyers engaged in the practice of law, as well as any other application of the Red Flags Rule to lawyers engaged in the practice of law." Id. ¶ 60, J.A. 23.
The District Court granted the ABA's motion for summary judgment. ABA v. FTC, 671 F.Supp.2d 64 (D.D.C.2009). Following the ABA's voluntary dismissal of Counts II and III, the District Court issued a final judgment enjoining the Commission from enforcing the Red Flags Rule "against lawyers engaged in the practice of law." Judgment at 1, J.A. 218. The District Court found that,
[g]iven the plain-meaning and statutorily assigned definitions of the terms interpreted by the Commission, the aim of the legislation, and the ill-adapted application of these terms to the legal profession, it becomes clear that the intent of Congress is unambiguous: it did not grant to the Commission the broad authority to exercise regulatory control over attorneys pursuant to the FACT Act, and accordingly the Red Flags Rule similarly cannot be properly promulgated in such a broad manner.
ABA, 671 F.Supp.2d at 82. The District Court further noted that, even if the statutory language were ambiguous, the agency's broad interpretation of "creditor" as including any lawyer who bills clients on a monthly basis would be unreasonable, "and therefore not `entitled to respect' because it lacks the `power to persuade.'" Id. at 83 (footnote omitted) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)).
The FTC appealed the judgment of the District Court, and oral arguments were heard by this court on November 15, 2010. On November 30, 2010, the United States Senate passed the Red Flag Program Clarification Act, S. 3987, 111th Cong. (2010), to amend section 1681m(e)(4) of the FACT Act. 156 CONG. REC. S8289 (daily ed. Nov. 30, 2010). The same bill was passed by voice vote in the House of Representatives on December 7, 2010. 156 CONG. REC. H8060 (daily ed. Dec. 7, 2010). On December 18, 2010, the legislation was signed into law by the President. Clarification Act, Pub.L. No. 111-319, 124 Stat. 3457 (2010).

II. Analysis

A. The ABA's Claims Have Been Rendered Moot by the Clarification Act

The mootness doctrine, deriving from Article III, limits federal courts to deciding actual, ongoing controversies. Even where litigation poses a live controversy when filed, the doctrine requires a federal court to refrain from deciding it if events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future.
Clarke, 915 F.2d at 700-01 (quotations omitted). In this case, the intervening event that ended the ongoing controversy between the ABA and the FTC was Congress' enactment of the Clarification Act. The portions of the Commission's Extended Enforcement Policy that were the subject of the ABA's complaint have been effectively vitiated by the Clarification Act. The ABA's claims were thus rendered moot by the intervening legislation. See, e.g., Galioto, 477 U.S. 556, 106 S.Ct. 2683 (dismissing challenge to statute denying access to firearms based on prior mental institutionalization as moot due to intervening redraft of statute providing an administrative remedy for those affected); Nat'l Black Police Ass'n v. Dist. of Columbia, *646 108 F.3d 346 (D.C.Cir.1997) (finding challenge to voter initiative capping campaign contribution levels moot due to subsequent legislation raising the caps above the voter initiative levels); Defenders of Wildlife, Inc. v. Endangered Species Scientific Auth., 725 F.2d 726 (D.C.Cir.1984) (holding that congressional amendments to Endangered Species Act mooted challenge to guidelines issued under the previous version of the statute).
There can be no confusion here that the Clarification Act served to moot the ABA's claims in this case. The new legislation is clearly aimed at the precise matter in dispute.
Before the enactment of the new legislation, a "creditor" under the FACT Act was defined as
any person who regularly extends, renews, or continues credit; any person who regularly arranges for the extension, renewal, or continuation of credit; or any assignee of an original creditor who participates in the decision to extend, renew, or continue credit,
15 U.S.C. § 1691a(e), and credit was defined as
the right granted by a creditor to a debtor to defer payment of debt or to incur debts and defer its payment or to purchase property or services and defer payment therefor.
Id. § 1691a(d). These provisions were materially altered by the Red Flag Program Clarification Act.
Under the Clarification Act, a "creditor" is now defined as follows:
(4) DEFINITIONS.As used in this subsection, the term `creditor'
(A) means a creditor, as defined in section 702 of the Equal Credit Opportunity Act (15 U.S.C. 1691a), that regularly and in the ordinary course of business
(i) obtains or uses consumer reports, directly or indirectly, in connection with a credit transaction;
(ii) furnishes information to consumer reporting agencies, as described in section 623, in connection with a credit transaction; or
(iii) advances funds to or on behalf of a person, based on an obligation of the person to repay the funds or repayable from specific property pledged by or on behalf of the person;
(B) does not include a creditor described in subparagraph (A)(iii) that advances funds on behalf of a person for expenses incidental to a service provided by the creditor to that person; and
(C) includes any other type of creditor, as defined in that section 702, as the agency described in paragraph (1) having authority over that creditor may determine appropriate by rule promulgated by that agency, based on a determination that such creditor offers or maintains accounts that are subject to a reasonably foreseeable risk of identity theft.
Pub.L. No. 111-319, § 2(a), 124 Stat. at 3457 (internal quotation marks omitted). The Clarification Act thus clarifies that, to be a "creditor" subject to the Red Flags Rule requirements, one must not only regularly extend, renew, or continue credit under § 1691a(e), but must also "regularly and in the ordinary course of business," (i) obtain or use consumer reports, (ii) furnish information to consumer reporting agencies, or (iii) advance funds with an obligation of future repayment. Id.
Most importantly, at least with respect to the matters in dispute in this case, the Clarification Act makes it plain that the granting of a right to "purchase property or services and defer payment therefore" *647 is no longer enough to make a person or firm subject to the FTC's Red Flags Rule  there must now be an explicit advancement of funds. In other words, the FTC's assertion that the term "creditor," as used in the Red Flags Rule and the FACT Act, includes "all entities that regularly permit deferred payments for goods or services," including professionals "such as lawyers or health care providers, who bill their clients after services are rendered," Extended Enforcement Policy at 1 n.3, J.A. 76, is no longer viable.
The legislative history of the new Clarification Act also confirms Congress' intention to bar the regulation of lawyers based solely on deferred billing practices. Representative John Adler, who introduced the legislation in the House, stated that "[w]hen I think of the word `creditor,' dentists, accounting firms, and law firms do not come to mind.... It is clear when Congress wrote the [FACT Act], they never contemplated including these types of businesses within the broad scope of that law." 156 CONG. REC. H8059 (daily ed. Dec. 7, 2010) (statement of Rep. Adler). See also 156 CONG. REC. S8289 (daily ed. Nov. 30, 2010) (statement of Sen. Dodd) ("The legislation also makes clear that lawyers, doctors, ... an[d] other service providers will no longer be classified as `creditors' for the purposes of the red flags rule just because they do not receive payment in full from their clients at the time they provide their services, when they don't offer or maintain accounts that pose a reasonably foreseeable risk of identity theft.") (commenting as chairman of the Senate Banking Committee regarding "what the Red Flag Program Clarification Act of 2010 will accomplish").
The parties' supplemental briefs to this court trade arguments as to whether attorneys might be subject to regulation by the FTC under the amended statute. But this question was not raised in the ABA's complaint, nor could it have been. The complaint focused on the FTC's Extended Enforcement Policy, which purported to amplify a rule that was promulgated pursuant to a statute that has since been amended. In these circumstances, there is no "live" case or controversy before this court. Why? Because the policy, rule, and statute that gave rise to this suit are no longer in the same posture.
It does not matter that the FTC might hereafter pursue notice-and-comment rulemaking to promulgate new rules pursuant to which the agency may seek to regulate lawyers and law firms. Nor does it matter that the agency may pursue a new enforcement policy against lawyers and law firms. These are merely hypothetical possibilities  indeed, the parties may even view them as likely possibilities. But they are nothing more than possibilities regarding regulations and enforcement policies that do not presently exist. This is not enough to give rise to a live dispute. "The mootness doctrine, deriving from Article III, limits federal courts to deciding actual, ongoing controversies." Clarke, 915 F.2d at 700-01 (quotation omitted). The case now before the court is moot.

B. No Exceptions to Mootness Are Present in This Case

The only remaining question is whether there are any exceptions to mootness that are applicable to this case.
There are two [principal] exceptions to mootness. The first pertains to situations in which "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration," yet there is a "demonstrated probability that the same controversy will recur involving the same complaining party." Murphy v. Hunt, 455 U.S. 478, 482 [102 S.Ct. 1181, 71 L.Ed.2d 353] (1982) (per curiam).

*648 ....
The second exception involves a party's "voluntary cessation" of the challenged activity. As a general rule, a defendant's "voluntary cessation of allegedly illegal conduct does not deprive [a court] of power to hear and determine the case." County of Los Angeles v. Davis, 440 U.S. 625, 631 [99 S.Ct. 1379, 59 L.Ed.2d 642] (1979). Voluntary cessation will only moot a case if "there is no reasonable expectation ... that the alleged violation will recur" and "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Id. The defendant carries the burden of demonstrating "that there is no reasonable expectation that the wrong will be repeated," and "[t]he burden is a heavy one." United States v. W.T. Grant Co., 345 U.S. 629, 633 [73 S.Ct. 894, 97 L.Ed. 1303] (1953).
HARRY T. EDWARDS & LINDA A. ELLIOTT, FEDERAL STANDARDS OF REVIEW  REVIEW OF DISTRICT COURT DECISIONS AND AGENCY ACTIONS 114-15 (2007) (second and third alterations in original). Neither exception applies in this case.
This case does not fall within the "capable of repetition, yet evading review" exception, Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam), because recurrence of the challenged activity will not "evade review" should the parties' dispute recur. Even if the Commission were to adopt a revised regulatory scheme under the amended statute that purports to regulate attorneys, the new regulation will be subject to judicial review at that time. As we noted in National Wildlife Federation v. Hodel, 839 F.2d 694 (D.C.Cir.1988), any new "regulations [will be] in no danger of expiring before judicial review is complete[, and i]t would be entirely inappropriate for this court to ... issue an advisory opinion to guide the [agency's] rulemaking." Id. at 742 (refusing to find the Secretary of the Interior's withdrawal of a challenged regulation to be an exception to mootness).
Likewise, the "voluntary cessation" exception to mootness has no play in this case. The FTC's abandonment of the Extended Enforcement Policy was not voluntary. The agency most assuredly did not alter its definition of "creditor" in order to avoid litigation. Rather, intervening legislation simply nullified the FTC's policy statement that all lawyers who bill their clients after services are rendered are covered by the Red Flags Rule and the FACT Act. This scenario is not within the compass of the voluntary cessation exception to mootness. Cf. Campbell v. Clinton, 203 F.3d 19, 34 n. 14 (D.C.Cir.2000) ("The President's cessation of the attack on Yugoslavia was not `voluntary' within the [Supreme] Court's [mootness doctrine] meaning; the war ended because the United States won, not because the President sought to avoid litigation.").
In sum, this case is moot due to the enactment of intervening legislation. And no exceptions to mootness are present in this case.

C. Vacatur of the District Court's Decision

In United States v. Munsingwear, Inc., 340 U.S. 36, 40, 71 S.Ct. 104, 95 L.Ed. 36 (1950), the Supreme Court noted that vacatur is normally appropriate once a case is determined to be moot, because it "clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance." Thus, in a matter such as this, in which intervening legislation "alters the posture" of a pending case, the Court has held that "it is the duty of the appellate court" to vacate the judgment of the district court and dismiss the case as moot. Galioto, 477 U.S. at 559-60, 106 S.Ct. 2683.
*649 The Supreme Court later clarified that vacatur is an equitable matter and not automatic in all situations in which a pending case is rendered moot. U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 23-25, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). Bancorp indicates that vacatur is usually inappropriate when "the party seeking relief from the judgment below caused the mootness by voluntary action." Id. at 24, 115 S.Ct. 386. The Bancorp presumption is inapposite here because the FTC  the party who would get relief from the judgment below  did nothing to render this case moot. The case is moot because of the congressional enactment of the new Clarification Act.
Furthermore, we have held that the Bancorp presumption rarely applies in situations when, as here, a case is rendered moot by intervening legislation.
Clearly, the passage of new legislation represents voluntary action, and thus on its face the Bancorp presumption might seem to govern. We believe, however, that application of the Bancorp presumption in this context is not required by the Bancorp opinion's rationale and would be inappropriate, at least if there is no evidence indicating that the legislation was enacted in order to overturn an unfavorable precedent. The rationale underlying the Bancorp presumption is that litigants should not be able to manipulate the judicial system by rolling the dice in the district court and then washing away any unfavorable outcome through use of settlement and vacatur. The mere fact that a legislature has enacted legislation that moots an appeal, without more, provides no grounds for assuming that the legislature was motivated by such a manipulative purpose. The legislature may act out of reasons totally independent of the pending lawsuit, or because the lawsuit has convinced it that the existing law is flawed. In American Library Association v. Barr, 956 F.2d 1178 (D.C.Cir.1992), we rejected the argument that vacatur was not appropriate where a case had become moot on appeal due to Congress' passage of new legislation, arguing that Congress' action "to repair what may have been a constitutionally defective statute ... represents responsible lawmaking, not manipulation of the judicial process." Id. at 1187.
....
The presumption of integrity that attaches to legislative action and the difficulties that separation of powers creates for attributing one branch's actions to another support not applying the Bancorp rule to situations where the party seeking vacatur is the government and mootness results on appeal because of legislative action. In this context, absent additional evidence of an illegitimate motive, we believe the general rule in favor of vacatur still applies.
Nat'l Black Police Ass'n, 108 F.3d at 351-52, 354 (citations, quotations, ellipsis, and brackets omitted).
National Black Police Ass'n directly controls the disposition of this case on the matter of vacatur. We therefore adhere to the law of the circuit in our decision to vacate the judgment of the District Court.

III. Conclusion
The judgment and opinion of the District Court is hereby vacated. The case is remanded to the District Court with instructions to dismiss the case as moot.