574 F.2d 411
Curtis Dale MORROW, Appellee,v.Robert F. PARRATT, Jr., Warden, Nebraska Penal andCorrectional Complex, Appellant.
No. 77-1925.
United States Court of Appeals,Eighth Circuit.
Submitted Feb. 13, 1978.Decided April 10, 1978.

Terry R. Schaaf, Asst. Atty. Gen., Lincoln, Neb., argued, Paul L. Douglas, Atty. Gen. of Nebraska, Lincoln, Neb., on brief, for appellant.
James B. Gessford, Perry, Perry, Witthoff & Guthery, Lincoln, Neb., for appellee.
Before HEANEY and STEPHENSON, Circuit Judges, and BECKER,* Senior District Judge.
STEPHENSON, Circuit Judge.

1
This is an appeal from the district court's order1 filed November 11, 1977, granting appellee Morrow's application for a writ of habeas corpus.  We affirm.

2
Morrow was initially charged in 1974 in Douglas County, Nebraska, with one count of robbery and one count of use of a firearm in the commission of a felony.  Pursuant to a plea bargain, Morrow entered a plea of guilty to the robbery charge and the firearm count was dismissed.  The state district court sentenced Morrow to a term of three to five years imprisonment.  On direct appeal Morrow asserted that other charges pending against him should not have been considered by the trial court in fixing the sentence, and that the sentence was excessive.  The Nebraska Supreme Court found the appeal to be frivolous and affirmed the judgment.  State v. Morrow, 194 Neb. 591, 234 N.W.2d 211 (1975).

3
Morrow then pursued a state post-conviction action in which he essentially contended that he was denied effective assistance of counsel.  The state district court denied post-conviction relief and the Nebraska Supreme Court affirmed the district court's judgment.  State v. Morrow, 197 Neb. 627, 250 N.W.2d 247 (1977).

4
Following the exhaustion of his state remedies, Morrow filed the instant habeas corpus action in federal district court claiming that he had been denied effective assistance of counsel in the state court proceedings.  Based on the record before it, the district court concluded that Morrow had demonstrated a failure on the part of his attorney to perform a function which a reasonably competent attorney would perform.  The district court further concluded that Morrow had proven he was prejudiced as a result of his attorney's inactions.  The district court accordingly granted Morrow's application for a writ of habeas corpus.

5
"The evaluation of a habeas corpus petition alleging ineffective assistance of counsel is a two-step process in this circuit."  Rinehart v. Brewer, 561 F.2d 126, 131 (8th Cir. 1977).  First, the defendant must show that his attorney failed to exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.  Benson v. United States, 552 F.2d 223, 224 (8th Cir. 1977), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977); Pinnell v. Cauthron, 540 F.2d 938, 939-40 (8th Cir. 1976); United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977).  Secondly the defendant must show he was materially prejudiced in the defense of his case by the actions or inactions of defense counsel.2 Rinehart v. Brewer, supra, 561 F.2d at 131; Benson v. United States, supra, 552 F.2d at 224; Pinnell v. Cauthron, supra, 540 F.2d at 943; Crimson v. United States, 510 F.2d 356, 358 (8th Cir. 1975).

6
In regard to the first inquiry, the district court concluded that Morrow's attorney failed to adequately investigate the facts before advising Morrow to plead guilty.  This court has recently stated that ordinarily a reasonably competent attorney will conduct an in-depth investigation of the case which includes an independent interviewing of the witnesses.  Benson v. United States, supra, 552 F.2d at 225.  In the instant case the district court found that Morrow's attorney consulted with Morrow in person three times and by telephone several additional times.  Morrow's attorney further reviewed the police reports and spoke with the local prosecutor, who indicated that two of the occupants in Morrow's car who were present at the gas station robbery would testify at trial.  The district court additionally found that Morrow had related to his attorney that prior to the gas station robbery he and four others were riding in his car.  When the robbery at the gas station was suggested, Morrow stopped the car.  When the others told him to drive into the station, he refused and moved to the back seat.  Morrow told the others "they were nuts for doing it," and "told them not to do it."  When the others proceeded to rob the station, Morrow hid beneath a blanket in the back seat of the car.  The district court concluded that in light of the lack of evidence before it that Morrow admitted to his attorney that he intended to rob the gas station or that he rendered assistance to the others, it was incumbent upon Morrow's attorney to further investigate the facts.

7
The record is clear that Morrow's attorney failed to interview the eyewitnesses in an attempt to find evidence supporting his client's position.  Furthermore, it is important to note that the parties stipulated in district court that Morrow would testify that he would not have pleaded guilty but for his attorney's advice.  The district court concluded that Morrow's attorney failed to perform a function which a reasonably competent attorney would perform.  Our review of the record convinces us that the district court's findings of fact are not clearly erroneous.  See Brown v. Swenson, 487 F.2d 1236, 1240 (8th Cir. 1973), cert. denied, 416 U.S. 944, 94 S.Ct. 1952, 40 L.Ed.2d 296 (1974).

8
In regard to the second inquiry of the ineffective assistance claim, the district court found that Morrow was materially prejudiced by his attorney's failure to interview eyewitnesses.  The district court properly noted that had Morrow decided to stand trial, a key factual issue would have centered upon Morrow's intent.  With intent as a critical issue, any corroboration or lack thereof of Morrow's rendition of the robbery would be significant.  The parties stipulated that if a special investigator were called as a witness, he would testify that one of the robbery participants stated that Morrow tried to "keep from being involved in the robbery before it happened."  This testimony, as the district court properly recognized, would have some bearing on the question of Morrow's intent.

9
Furthermore, it is significant that Morrow's attorney testified in the state post-conviction hearing that the fact that Morrow accepted $10 of the robbery money was the final factor which convinced him to advise Morrow to plead guilty.  The district court noted that one of the robbery participants stated to the investigator that Morrow was given money by another participant as payment for a purchased car.  This testimony would raise some question as to Morrow's motivation in accepting the $10.

10
In summary, the evidence described above could have been uncovered by a reasonable investigation by Morrow's attorney.  Its discovery may have completely changed the defense strategy.  Certainly each of the factors would have been helpful to the defense at trial as they bore directly on Morrow's intent.  We conclude that the district court's finding that Morrow was materially prejudiced by his attorney's failure to interview eyewitnesses is not clearly erroneous.

11
Applying the standards as set out earlier, we are persuaded that as a matter of law Morrow received ineffective assistance of counsel.  The district court's findings of fact which underpin this conclusion of law are not clearly erroneous.  Accordingly, we affirm.

12
Affirmed.

*
 The Honorable William H. Becker, Senior United States District Judge for the Western District of Missouri, sitting by designation

1
 The Honorable Warren K. Urbom, Chief Judge, United States District Court for the District of Nebraska, ordered the petitioner released unless the State of Nebraska retries him within 90 days

2
 As this court noted in McQueen v. Swenson, 560 F.2d 959, 961 n.4 (8th Cir. 1977), at least two circuits have held that once ineffective assistance of counsel has been established, harmless error tests do not apply.  Cooper v. Fitzharris, 551 F.2d 1162, 1164-65 (9th Cir. 1977); Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974)


Motion Granted; Appeal Dismissed and Memorandum Opinion filed July 10, 2012.

                                        In The

                     Fourteenth Court of Appeals
                                    ____________

                                 NO. 14-12-00536-CV
                                   _____________

               LANCE SUMMEY AND FRAN SUMMEY, Appellants

                                          V.

 JOHN RICHARD DUFFY, INDIVIDUALLY AND D/B/A MID-CONTINENTAL
    INSURANCE AGENCY AND FIRST AMERICAN TITLE INSURANCE
                      COMPANY, Appellees

                      On Appeal from the 164th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2010-50554

                     MEMORANDUM OPINION

      This is an appeal from a judgment signed May 21, 2012. On June 18, 2012,
appellants filed a motion to dismiss the appeal. See Tex. R. App. P. 42.1. The motion is
granted.

      Accordingly, the appeal is ordered dismissed.

                                        PER CURIAM

Panel consists of Chief Justice Hedges and Justices Seymore and Brown.


            UNITED STATES NAVY-MARINE CORPS
               COURT OF CRIMINAL APPEALS
                    WASHINGTON, D.C.

                              Before
            K.J. BRUBAKER, B.T. PALMER, M.G. MILLER
                     Appellate Military Judges

                   UNITED STATES OF AMERICA

                               v.

                 ZOILO A. UMANZORBUSTILLO
          PRIVATE FIRST CLASS (E-2), U.S. MARINE CORPS

                        NMCCA 201600094
                    SPECIAL COURT-MARTIAL

Sentence Adjudged: 11 December 2015.
Military Judge: LtCol L.J. Francis, USMC.
Convening Authority: Commanding Officer, 3D Marine
Regiment, 3D Marine Division, MCBH Kaneohe Bay, HI .
Staff Judge Advocate's Recommendation: Maj T.S. Taylor,
USMC.
For Appellant: CDR R.D. Evans Jr., JAGC, USN.
For Appellee: Brian Keller, Esq.

                         31 May 2016

    ---------------------------------------------------
                    OPINION OF THE COURT
    ---------------------------------------------------

     After careful consideration of the record, submitted
without assignment of error, we affirm the findings and sentence
as approved by the convening authority. Art. 66(c), Uniform
Code of Military Justice, 10 U.S.C. § 866(c).

                                For the Court

                                R.H. TROIDL
                                Clerk of Court


                                 COURT OF APPEALS FOR THE
                            FIRST DISTRICT OF TEXAS AT HOUSTON

                                      MEMORANDUM ORDER

Appellate case name:      Bradley Ray McClintock v. The State of Texas

Appellate case number:    01-11-00572-CR

Trial court case number: 1280089

Trial court:              182nd District Court of Harris County

        The Court of Criminal Appeals has remanded this case to this court for consideration of
“whether the good-faith exception to the exclusionary rule” applies. McClintock v. State, No.
PD-0925-13, 2014 WL 4843959, at *1 (Tex. Crim. App. Oct. 1, 2014). Because the parties have
not briefed this issue in this court, we order the parties to submit supplemental briefing on the
issue of whether the good-faith exception to the exclusionary rule applies. See id. at *4 (“Neither
party mentioned the good-faith exception to the exclusionary rule in their briefs on direct
appeal.”).
       The appellant’s supplemental brief is due 30 days after the date of this order, the State’s
supplemental brief is due 30 days after the date the appellant’s brief is filed, and the appellant’s
supplemental reply brief, if any, is due 20 days after the date the State’s brief is filed. See TEX.
R. APP. P. 38.6.

       It is so ORDERED.

Judge’s signature: /s/ Michael Massengale
                    Acting individually       Acting for the Court

Date: November 3, 2014


Wynkoop v 622A President St. Owners Corp. (2019 NY Slip Op 01450)

Wynkoop v 622A President St. Owners Corp.

2019 NY Slip Op 01450

Decided on February 27, 2019

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 27, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

ALAN D. SCHEINKMAN, P.J.
JOHN M. LEVENTHAL
JOSEPH J. MALTESE
VALERIE BRATHWAITE NELSON, JJ.

2015-07025
2015-12653
 (Index No. 507156/13)

[*1]Brett Wynkoop, et al., respondents-appellants,
v622A President Street Owners Corp., respondent, Kyle Taylor, et al., appellants-respondents.

Mandel Bhandari, LLP, New York, NY (Rishi Bhandari and Donald Conklin of counsel), for appellants-respondents.
Antony Hilton, New York, NY, for respondents-appellants.
D. Bunji Fromartz, Brooklyn, NY, for respondent.

DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract and breach of fiduciary duty, and for injunctive relief, (1) the plaintiffs appeal from an order of the Supreme Court, Kings County (David I. Schmidt, J.), dated November 7, 2014, and (2), the defendants Kyle Taylor, Hilary Taylor, and Rajeev Subramanyam appeal, and the plaintiffs cross-appeal, from an order of the same court dated April 13, 2015. The order dated November 7, 2014, insofar as appealed from, denied those branches of the plaintiffs' motion which were pursuant to CPLR 3211(a) to dismiss the counterclaims asserted by the defendants Kyle Taylor, Hilary Taylor, and Rajeev Subramanyam and, in effect, to confirm a shareholders' election held on May 16, 2014, and granted the motion of those defendants for preliminary injunctive relief to the extent of declaring invalid the shareholders' election held on May 16, 2014, and directing that a new special shareholders' meeting be held and supervised by a referee. The order dated April 13, 2015, insofar as cross-appealed from by the plaintiffs, upon reargument, adhered to so much of the determination in the order dated November 7, 2014, as denied those branches of the plaintiffs' motion which were to dismiss the counterclaims asserted by the defendants Kyle Taylor, Hilary Taylor, and Rajeev Subramanyam and, in effect, to confirm the shareholders' election held on May 16, 2014, and modified that order by directing the plaintiffs to "immediately add one of the defendants . . . as a co-signatory on the existing 622A President Street Owners Corp. corporate bank account" and to refund to the defendant Rajeev Subramanyam funds that the plaintiffs caused to be withdrawn from that defendant's bank account, and denied the plaintiffs' motion for leave to enter a default judgment against the defendant 622A President Street Owners Corp.
ORDERED that the plaintiffs' appeal from the order dated November 7, 2014, is dismissed, as that order was superseded by the order dated April 13, 2015, made upon reargument; and it is further,
ORDERED that the appeal by the defendants Kyle Taylor, Hilary Taylor, and Rajeev Subramanyam from the order dated April 13, 2015, is dismissed as abandoned, without costs or [*2]disbursements; and it is further,
ORDERED that the order dated April 13, 2015, is affirmed insofar as cross-appealed from by the plaintiffs; and it is further,
ORDERED that one bill of costs is awarded to the defendants Kyle Taylor, Hilary Taylor, and Rajeev Subramanyam.
The plaintiffs and the defendants Kyle Taylor and Rajeev Subramanyam are the only shareholders in the defendant 622A President Street Owners Corp. (hereinafter the corporation). The defendant Hilary Taylor is married to Kyle Taylor. The plaintiffs commenced this action against the individual defendants and the corporation, inter alia, to recover damages for breach of contract and breach of fiduciary duty.
We agree with the Supreme Court's determination to deny that branch of the plaintiffs' motion which was, in effect, to confirm a shareholders' meeting held on May 16, 2014, to elect a board of directors for the corporation. The meeting was held after the parties entered into an on-the-record stipulation in an earlier action in which they agreed that all four shareholders were to serve as directors. Further, the bylaws of the corporation provide that a board member may be removed only upon a vote of a majority of the directors or shareholders. Here, it is undisputed that a majority of the directors or shareholders did not vote for the removal of any director. Under these circumstances, we agree with the court's determination that the purported elections were not valid (see Business Corporation Law § 706[b]). We also agree with the court's determination to direct a new special shareholders' meeting be held and supervised by a referee (see Business Corporation Law § 619; Ronnen v Ajax Elec. Motor Corp., 88 NY2d 582, 591).
We agree with the Supreme Court's determination to direct the return of funds to Subramanyam, finding that the plaintiffs lacked the authority to have caused those funds to be withdrawn from Subramanyam's bank account (see Modern Telecom. v Dalessandro, 185 AD2d 218). In addition, in light of the parties' stipulation that all four shareholders were to serve as directors, we also agree with the court's determination to direct the plaintiffs to add one of the individual defendants as a cosignatory to the corporate bank account (see generally Modern Telecom. v Dalessandro, 185 AD2d 218).
On a motion to dismiss a complaint or counterclaims pursuant to CPLR 3211(a)(7), the court must accept all facts as alleged in the pleading to be true, accord the pleader the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88; Sokol v Leader, 74 AD3d 1180, 1181-1182). In considering a motion to dismiss a complaint or counterclaims pursuant to CPLR 3211(a)(1) based on documentary evidence, dismissal is warranted "only where the documentary evidence utterly refutes [the] factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Sabre Real Estate Group, LLC v Ghazvini, 140 AD3d 724). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) . . . the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Agai v Liberty Mut. Agency Corp., 118 AD3d 830, 832; see Guggenheimer v Ginzburg, 43 NY2d 268, 275).
Here, the counterclaims stated viable causes of action to recover damages for breach of contract, and the counterclaims were not conclusively refuted by any documentary evidence (see Tri-Star Light. Corp. v Goldstein, 151 AD3d 1102, 1105; Tiffany at Westbury Condominium v Marelli Dev. Corp., 40 AD3d 1073, 1075-1076). The counterclaims also stated viable causes of action alleging breach of fiduciary duty relating to, inter alia, alleged misappropriation of corporate funds (see Stinner v Epstein, 162 AD3d 819, 821; cf. Kleinerman v 245 E. 87 Tenants Corp., 105 AD3d 492, 493). Accordingly, we agree with the Supreme Court's denial of that branch of the plaintiffs' motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the counterclaims [*3]asserted by the individual defendants.
We agree with the Supreme Court's denial of the plaintiffs' motion for leave to enter a default judgment against the corporation, as the plaintiffs did not establish proper service of the complaint upon the corporation (see CPLR 3215[f]; Cordero v Barreiro-Cordero, 129 AD3d 899, 900; Todd v Green, 122 AD3d 831, 831-832). Moreover, where the allegations of a complaint or affidavit of facts fail to establish a prima facie case, "the applicant is not entitled to the requested relief, even on default" (Matter of Dyno v Rose, 260 AD2d 694, 698; see Morgenthau v Rodriguez, 261 AD2d 165, 166). At bar, the plaintiffs failed to support their motion with an adequate factual affidavit (see Morgenthau v Rodriguez, 261 AD2d at 166).
The parties' remaining contentions are without merit.
SCHEINKMAN, P.J., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


Matter of Bonilla-Sanchez v Flores (2020 NY Slip Op 02779)

Matter of Bonilla-Sanchez v Flores

2020 NY Slip Op 02779

Decided on May 13, 2020

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 13, 2020
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
SHERI S. ROMAN
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX, JJ.

2019-01102
 (Docket No. V-282-18)

[*1]In the Matter of Alba N. Bonilla-Sanchez, respondent,
vDavid Flores, appellant.

Salvatore C. Adamo, New York, NY, for appellant.
Darla A. Filiberto, Islandia, NY, for respondent.
Katie Anne Berka, Bay Shore, NY, attorney for the child.

DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the father appeals from an amended order of the Family Court, Suffolk County (Rosann O. Orlando, Ct. Atty. Ref.), dated December 28, 2018. The amended order, after a hearing, granted the mother's petition for sole legal and residential custody of the parties' child, with parental access to the father.
ORDERED that the amended order is affirmed, without costs or disbursements.
The parties, who were never married, have one child together, born in 2014. In January 2018, the mother filed a petition seeking sole legal and residential custody of the child, who had been residing with the mother since birth. After a hearing, the Family Court granted the mother's petition, awarding her sole legal and residential custody of the child, with parental access to the father. The father appeals.
"The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child" (Matter of Turcios v Cordero, 173 AD3d 1048, 1049; see Eschbach v Eschbach, 56 NY2d 167, 171). " Factors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent'" (Matter of Lopez v Prudencio, 179 AD3d 690, 690, quoting Matter of Andrade v Salvador, 160 AD3d 826, 827). " The court's determination with respect to custody depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parties. Given the court's opportunity to make firsthand assessments of these crucial considerations, we accord great deference to its credibility findings and will not disturb them unless they lack a sound and substantial basis in the record'" (Matter of Lopez v Prudencio, 179 AD3d at 690-691, quoting Matter of Vaysman v Conroy, 165 AD3d 954, 954-955).
Here, the Family Court considered the totality of the circumstances, and its [*2]determination to award sole legal and residential custody of the child to the mother is supported by a sound and substantial basis in the record and will not be disturbed (see Eschbach v Eschbach, 56 NY2d at 171-172; Matter of Lopez v Prudencio, 179 AD3d at 691; Matter of Vaysman v Conroy, 165 AD3d at 954-955).
RIVERA, J.P., ROMAN, COHEN and HINDS-RADIX, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


247 F.Supp. 423 (1965)
Nicolaos KARAKATSANIS, Plaintiff,
v.
CONQUESTADOR CIA. NAV., S.A., A. Lusi Ltd., Argonaut Trading Agency, Inc., and Ocean Freight & Brokerage, Inc., Defendants.
United States District Court S. D. New York.
February 15, 1965.
*424 George Spiros, New York City, for plaintiff.
Poles, Tublin & Patestides, New York City, for defendants.
McLEAN, District Judge.
This is an action at law by a Greek seaman to recover damages for personal injuries which he allegedly sustained on September 26, 1963 while he was employed aboard the S. S. Constantinos, a vessel of Greek flag and registry, owned by a Panamanian corporation. The vessel was in navigable waters off Tampa, Florida, at the time of the accident.
The complaint alleges that plaintiff is a Greek national, that defendant Conquestador Cia. Nav., S.A. ("Conquestador") is a Panamanian corporation, that defendant A. Lusi Ltd. ("Lusi") is a British corporation, and that defendants Argonaut Trading Agency, Inc. ("Argonaut"), and Ocean Freight & Brokerage, Inc. ("Ocean") are New York corporations. It alleges further (Paragraph Fifth) that "the defendants owned, operated, managed and controlled a certain vessel known as the S. S. Constantinos." It also alleges (Paragraph Sixth) that "all of the defendants and each of them had a principal place for the regular transaction of business in the Borough of Manhattan, City and State of New York, or agents authorized to represent the defendants for the regular transaction of business."
Jurisdiction of the subject matter of this action is alleged to be founded on the Jones Act, the "General Maritime Law," and diversity of citizenship of the parties.
Defendants move to dismiss the action on the grounds of (1) lack of jurisdiction over the persons of defendants Conquestador and Lusi, (2) lack of jurisdiction over the subject matter, and (3) forum non conveniens. The motion is supported by a number of affidavits, i. e., affidavits of an officer of Conquestador, a director of Lusi, an officer of Argonaut, an officer of Ocean, a director of the Greek Shipping Agency, Ltd., an American lawyer and a Greek lawyer. In opposition to this array, we have only an affidavit signed by plaintiff, who obviously has no personal knowledge as to the relationship among the corporate defendants. His affidavit contains no facts, as distinguished from conclusions, to support the allegations of Paragraphs Fifth and Sixth of his complaint quoted above. The facts disclosed by the moving affidavits are as follows:
Conquestador is a Panamanian corporation. Its officers, directors and stockholders are Greeks, residing in Greece. Its principal place of business is in Athens. It also has an office in Panama City. It owns the S. S. Constantinos, a tramp steamer.
Lusi is a British corporation. Its directors reside in London. None of its directors or stockholders resides in the United States or is a citizen of the United States. The office of the corporation is in London. It is general agent of Conquestador and as such manages and directs the operations of the Constantinos.
From September 22, 1963 to September 29, 1964, the Constantinos traded about the world. During the course of that year it touched twice at American ports, at Tampa, Florida, in September 1963, when plaintiff's accident allegedly occurred, and at Houston, Texas, in September 1964.
Argonaut is a New York corporation. Its office is in New York. Its business is that of a "shipping agent." When vessels managed by Lusi call at American ports, Argonaut, at the request of Lusi, acts "as local agent" for the vessel. When the Constantinos called at Tampa in September *425 1963, Argonaut arranged for a "subagent" in Tampa to attend to "the customary formalities and matters dealing with the normal business of the vessel" in that port. It does not appear what, if anything, Argonaut did when the Constantinos called at Houston in September 1964. Argonaut is not authorized to accept service of process on behalf of Conquestador or Lusi.
Ocean is a New York corporation. Its office is in New York. It is in the business of "chartering brokers." It arranges for chartering American and foreign vessels. "On occasion," just when does not appear, it has arranged for chartering the Constantinos. It has never operated or managed that vessel. It is not authorized to accept service of process on behalf of Conquestador or Lusi.
Plaintiff is a Greek national. On November 17, 1962, at Pylos, Greece, he signed a contract of employment, under which he undertook to serve as a seaman on the Constantinos. On November 18, 1962, at Pylos, he signed the ship's articles. Both the contract and the articles provide that his employment was upon the terms of the Greek collective bargaining agreement applicable to Greek seamen. That agreement provides:
"1. Individual contracts of employment, on which the present Collective Agreement applies, will be governed exclusively as to any claim or right arising out of the seafarer's employment, including claims on account of illness or accident, by the provisions of the present Collective Agreement and Greek Law, being judged exclusively by the competent Greek Authorities and Greek Law Courts, resort to any foreign Courts and to any foreign law being prohibited and expressly ruled out."
Greek law provides some remedy for Greek seamen who are injured in the course of their employment. From the affidavit of the Greek lawyer submitted by defendants, it would appear that this remedy in essence is similar to workmen's compensation, with some right of election, under certain circumstances, to sue for a larger sum.
Plaintiff left the Constantinos on October 3, 1963, at Tampa, Florida, and was admitted to a hospital there. A Tampa doctor recommended that he be returned to Greece for appropriate medical care. Argonaut undertook to arrange this. Plaintiff was sent to New York so that he could be shipped from New York to Greece. Such a course was manifestly unacceptable to plaintiff. A series of incidents took place involving a stay in a New York hospital and alleged restraint of plaintiff in a straitjacket. The net upshot is that plaintiff has not gone back to Greece and is still in New York. Plaintiff claims that he is now a New York resident. Defendants say that, on the contrary, he is merely sojourning in this country as an alien seaman at the sufferance of the immigration authorities, subject to deportation whenever they so require.
The purported service of process upon defendants Conquestador and Lusi was made by delivering copies of the summons and complaint, on October 20, 1964, to the president of Argonaut. Defendants Conquestador and Lusi assert, as the first ground of their motion, that this was not a valid service as to them because they were not doing business in New York so as to be subject to the jurisdiction of this court.
In Frank v. N. V. Stoomv. Maatz. "Ootzee", 63 Civ. 2743, decided March 16, 1964 (unreported), I had occasion to write briefly on the subject of the doing of business in this country by foreign steamship companies whose vessels call at American ports. As I there pointed out, the question turns upon the regularity and frequency with which the vessels call here, and the nature and extent of the activities of the "local agent" here on their part. I consider the moving affidavits in the present case insufficient to disclose all the facts which are relevant to this issue. Nothing is said, for example, as to how often the Constantinos has called at New York, or what Argonaut has or has not done when she called here. *426 Argonaut's affidavit is silent as to what, if anything, it did on defendant's behalf when the vessel called at Houston in September 1964. Ocean's affidavit gives no details of the "occasions" when it arranged charters for the Constantinos. If this were the sole question presented by this motion, I would consider it necessary, despite the inadequacy of plaintiff's opposing affidavit, in the interest of justice to hold a hearing and to take testimony on these matters.
I shall not do so, however, for there is another ground upon which this motion can be decided. This involves the jurisdiction of this court over the subject matter. As I have previously pointed out, this is an action at law, not a suit in admiralty. Although plaintiff states in his affidavit: "All of the defendants in this action are as diverse in citizenship and nationality as can be found anywhere," plaintiff has overlooked the fact that nevertheless this court does not have jurisdiction under 28 U.S.C. § 1332 of the controversy between plaintiff and Conquestador and Lusi, because plaintiff and those defendants are all citizens of foreign states. Conquestador and Lusi are incorporated in Panama and Great Britain, respectively, and neither has its principal place of business in New York. Plaintiff is a Greek citizen. His place of residence is immaterial. Controversies between aliens do not come within Section 1332. Cuozzo v. Italian Line, "Italia"-Societa Per Azioni, etc., 168 F. Supp. 304 (S.D.N.Y.1958); Tsitsinakis v. Simpson, Spence & Young, 90 F.Supp. 578 (S.D.N.Y.1950)
28 U.S.C. § 1331 confers jurisdiction upon the district court of civil actions which arise "under the Constitution, laws or treaties of the United States." The "general maritime law" is not a law of the United States within the meaning of this section, and an action based on general maritime law does not arise under the Constitution or laws of the United States. Section 1331, therefore, does not give jurisdiction to this court over this action. Romero v. International Terminal Operating Co., 358 U. S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959)
The third possible basis of jurisdiction is the Jones Act. It is clear that the Jones Act, and for that matter the general maritime law of the United States apart from the statute, does not apply to this action by a Greek seaman on a Greek ship, who has signed an employment agreement in Greece which provides that his rights shall be governed by Greek law and enforceable only in Greek courts. Romero v. International Terminal Operating Co., supra; Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953); Tjonaman v. A/S Glittre, 340 F. 2d 290, (2d Cir. Jan. 11, 1965)
In Romero, the Supreme Court explained that the inapplicability of the Jones Act and the general maritime law of the United States is not to be considered, strictly speaking, a matter of jurisdiction. The court said that the mere assertion of a claim under the Jones Act is enough to give the district court jurisdiction to decide whether the claim is valid, i. e., whether the Jones Act and American maritime law apply. Since they do not apply, the proper procedure is to dismiss, not for lack of jurisdiction, but for failure to state a claim.
In the present case, defendants Conquestador and Lusi have moved to dismiss on various grounds, one of which is lack of jurisdiction over the subject matter, but they apparently have not included the failure to state a claim as one of the grounds. Since it is perfectly apparent, however, that this court has no jurisdiction of the controversy between plaintiff and these two defendants under 28 U.S.C. §§ 1331 or 1332, and since it is equally clear that the complaint does not state a claim against them under the Jones Act or the general maritime law of the United States, it is obvious that the complaint should be dismissed as to them, and I believe it would be uselessly formalistic to insist that the defendants make a new motion specifically listing failure to state a claim as the ground. Accordingly, the action is dismissed as against defendants *427 Conquestador and Lusi. This dismissal is without prejudice to the institution by plaintiff, if he is so advised, of a new action against them in admiralty. If plaintiff does so, then these defendants may, if they wish, move to dismiss for lack of personal jurisdiction, upon papers more adequate than their present ones. They may also, if they wish, move to dismiss on the ground of forum non conveniens. The admiralty judge, having jurisdiction of the action, will be in a position to decide whether or not to exercise it. That question does not properly arise in this present action at law, which must be dismissed for the reasons which I have indicated.
I turn now to the situation of the remaining two defendants, Argonaut and Ocean. Here there can be no doubt as to jurisdiction over their persons. They are each New York corporations doing business in New York. Service was made upon an officer of each.
As to subject matter jurisdiction, 28 U.S.C. § 1332 confers jurisdiction as to them, for in their case the controversy lies between plaintiff, a citizen of a foreign state and two citizens of New York. This is expressly within Section 1332.
The fact that there is no diversity jurisdiction under Section 1332 as between plaintiff and defendants Conquestador and Lusi does not require, and probably does not even permit, the court to dismiss the action as against defendants Argonaut and Ocean where diversity does exist, since Conquestador and Lusi are not indispensable parties. Kerr v. Compagnie de Ultramar, 250 F.2d 860 (2d Cir. 1958); See Romero v. International Terminal Co., supra.
As far as forum non conveniens is concerned, obviously it is not more convenient for Argonaut and Ocean to try this case in Greece than in New York. Hence it is inappropriate to dismiss the action against those defendants on that ground.
What these defendants are really claiming is that they are not liable to plaintiff, that they do not own, operate or control the Constantinos, and that plaintiff's allegation in Paragraph Fifth of his complaint that they do is untrue in fact. In effect, these defendants want summary judgment. But they have not moved for that relief, and I think that it would be inadvisable to treat their present motion as one for summary judgment. If they wish to make such a motion, they should be required to do so in proper form, so that plaintiff will know what he has to meet and will have an opportunity to present whatever he can in the way of facts to support the allegation of his complaint. Accordingly, the motion of defendants Argonaut and Ocean is denied, without prejudice to their right to move for summary judgment if so advised.
Settle order on notice.


                                                                          FILED
                           NOT FOR PUBLICATION                             JAN 04 2010

                                                                      MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS

                           FOR THE NINTH CIRCUIT

 IDRISA SESAY,                                 No. 08-56812

             Petitioner - Appellant,           D.C. No. 3:07-cv-02354-JM-LSP

 v.

 JANET NAPOLITANO,* Secretary of the           ORDER
 Department of Homeland Security; ERIC
 H. HOLDER JR., Attorney General of the
 United States; ROBIN BAKER, Director
 of San Diego Field Office, U.S.
 Immigrations and Customs Enforcement;
 JOHN A. GARZON, Officer-in-Charge,

             Respondents - Appellees.

                   Appeal from the United States District Court
                      for the Southern District of California
                    Jeffrey T. Miller, District Judge, Presiding

                      Argued and Submitted August 5, 2009
                              Pasadena, California

Before: CANBY, WARDLAW and CALLAHAN, Circuit Judges.

      The government’s motion to dismiss this appeal on the ground of mootness

is GRANTED. See Clark v. Martinez, 543 U.S. 371, 376 n.3 (2005) Rodriguez v.

      *
        Janet Napolitano is substituted for her predecessor Michael Chertoff,
Secretary of the Department of Homeland Security, pursuant to Fed. R. App. P.
43(c)(2).
Hayes, 578 F.3d 1032, 1044 (9th Cir. 2009); Picrin-Peron v. Rison, 930 F.2d 773,

776 (9th Cir. 1991). This appeal is dismissed as moot.

      Because this mootness was caused by the unilateral act of the government,

we vacate the decision of the district court and remand with instructions to dismiss

the petition as moot. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership,

513 U.S. 18, 25 (1994) (stating that equitable considerations favor vacatur “when

mootness results from unilateral action of the party who prevailed below”); see

also Alvarez v. Smith, ___ U.S. ___, 2009 WL 4573274, at *5-7 (U.S. Dec. 8,

2009).

      APPEAL DISMISSED; REMANDED with instructions.

                                         2


783 F.Supp.2d 170 (2011)
Stacey A. KITTNER, Plaintiff,
v.
Robert M. GATES, et al., Defendants.
Civil Action No. 09-1245 (GK).
United States District Court, District of Columbia.
May 11, 2011.
*171 Cathy A. Harris, Kator, Parks & Weiser, PLLC, Washington, DC, for Plaintiff.
Marina Utgoff Braswell, U.S. Attorneys Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION
GLADYS KESSLER, District Judge.
Plaintiff Stacey A. Kittner brings this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), against Defendant Robert M. Gates in his official capacity as Secretary of Defense. Kittner also alleges violations of her Fifth Amendment rights under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against several Department of Defense employees sued in their individual capacities. The individually sued Defendants include Deborah Monroe, Deputy Chief, Directorate for Analysis, Office of Counter-Proliferation Technology ("CPT"), Defense Intelligence Agency ("DIA"); Col. William Russel Strosnider, Chief, Operating Base National Capitol Region ("OBNCR"), DIA; Capt. William S. Gieckel, Acting Chief, OBNCR; Scott Darren LaCoss, Chief of Controlled Operations, *172 OBNCR; Brad Ahlskog, Division Chief, CPT; and Claudia Caslow, Korean Team Chief, CPT.
This matter is presently before the Court on Plaintiff's Motion for Reconsideration (May 26, 2010) ("Plaintiff's Mot.") [Dkt. No. 32] of the Court's April 28, 2010 Order [Dkt. No. 27] granting Defendants' Motion to Dismiss Plaintiff's Bivens claim against the individually sued Defendants. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, Plaintiff's Motion for Reconsideration is denied.

I. Standard of Review[1]
Plaintiff properly brings her Motion for Reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b). As the moving party, Plaintiff has the burden of demonstrating that relief under either of these Rules is warranted. Messina v. Krakower, 439 F.3d 755, 758-59 (D.C.Cir.2006); Murray v. District of Columbia, 52 F.3d 353, 355 (D.C.Cir.1995).
It is well-established that a motion for reconsideration is committed to the sound discretion of the court. Murray, 52 F.3d at 355. The granting of such a motion is, however, an unusual measure, occurring in extraordinary circumstances. Firestone v. Firestone 76 F.3d 1205, 1208 (D.C.Cir.1996) (per curiam); Anderson v. District of Columbia, 72 F.3d 166, 167-68 (D.C.Cir.1995) (per curiam).
The court will entertain a motion for reconsideration only "where sufficient grounds for disturbing the finality of the judgment" are shown. Smalls v. United States, 471 F.3d 186, 191 (D.C.Cir.2006) (citations omitted). In particular, such a motion "`need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Messina, 439 F.3d at 758 (quoting Firestone, 76 F.3d at 1208).

II. Analysis
Plaintiff urges the Court to reconsider and vacate its April 28, 2010 Order on the grounds that new evidence obtained from the Government demonstrates that the Court's dismissal of Plaintiff's Bivens claim against the individually sued Defendants will result in manifest injustice. Plaintiff's Mot. 2. Plaintiff argues that various new documents produced by the Government on April 13, 2010, after completion of briefing of Defendants' Motion to Dismiss, demonstrate that "the individual Defendants, acting under the color of law, exceeded the scope of their employment by intentionally and improperly engaging in unlawful and conspiratorial acts such as making false allegations, and perpetuating allegations they knew to be false, in an effort to prevent Plaintiff ... from doing her job." Id. at 7.
As recounted by Plaintiff, the new evidence strongly implicates the individually sued Defendants in discriminatory and retaliatory actions aimed at limiting Plaintiff's employment opportunities. Nonetheless, under applicable case law, Plaintiff's new evidence does not entitle her to a renewed Bivens claim against these parties.[2]
*173 In order to support a motion for reconsideration under Rule 60(b), Plaintiff's new evidence must meet four requirements: (1) it "must have been in existence at the time of trial" [in this case at the time of the Court's April 28, 2010 Order]; (2) it "must be such that if [sic] was not and could not by the exercise of due diligence have been discovered in time to present it in the original proceeding;" (3) it must not be "merely cumulative or impeaching;" and (4) it "must be admissible and credible, and of such a material and controlling nature as will probably change the outcome." Canady v. Erbe Elektromedizin GmbH, 99 F.Supp.2d 37, 44 (D.D.C.2000) (citations omitted).
As it is undisputed that the new evidence was in existence during the relevant time period, and that Plaintiff could not have otherwise obtained it by due diligence in time to include it in briefing on Defendants' Motion to Dismiss, Plaintiff's proffered evidence satisfies the first two Canady requirements. However, the new evidence fails to satisfy the remaining two prongs of Canady's four-part test. As the Government correctly argues, Plaintiff's new evidence is merely cumulative and corroborative of the factual allegations this Court dismissed in its April 28, 2010 Order and that it assumed to be true for purposes of rendering that decision. See April 28, 2010 Memorandum Opinion, 708 F.Supp.2d 47, 48 n. 2 ("April 28, 2010 Mem. Op.") [Dkt. No. 28]. In light of these circumstances, Plaintiff's new evidence cannot change the outcome of the Court's April 28, 2010 Order dismissing her Bivens claim against the individually sued Defendants.
Consequently, because the new evidence fails to meet the last two requirements of Canady, the Court denies Plaintiff's Motion for Reconsideration on the basis of her new evidence.
Plaintiff's remaining arguments in support of her Motion for Reconsideration fall into two categories: (1) arguments relating to Title VII preemption of Plaintiff's Bivens claim; and (2) arguments relating to Plaintiff's need to take discovery from Defendants in their individual capacity.

A. Title VII Preemption

1. Plaintiff Failed to Present Her Preemption Argument When Opposing Defendants' Motion to Dismiss
Plaintiff argues for the first time that Title VII preemption is inapplicable where, as here, evidence demonstrates that the individually sued Defendants acted unlawfully and outside the scope of their employment. Plaintiff's Mot. 12. As Plaintiff concedes, however, her preemption theory is premised, in part, on allegations contained in her Amended Complaint against the individually sued Defendants. Id. Consequently, her argument could have been, but was not, included in her briefing on Defendants' Motion to Dismiss. A motion for reconsideration may not, however, be used to raise arguments or defenses that could have been advanced during the original proceeding. Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C.Cir.1993). Because Plaintiff had the opportunity to, but did not, raise this preemption argument in briefing on the Motion to Dismiss, she has waived it and cannot raise it at this time.[3]
*174 On this basis alone, Plaintiff's Title VII preemption theory is insufficient to sustain her Motion for Reconsideration.

2. Title VII Preempts Plaintiff's Bivens Claim
Plaintiff has also failed to present any case law substantiating her argument that Title VII does not foreclose a Bivens claim brought against federal employees acting unlawfully and outside the scope of their employment. Moreover, applicable case law does establish several principles that do foreclose Plaintiff's new theory as a basis for reviving her Bivens action.
First, in Brown v. General Services Administration, 425 U.S. 820, 835, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), the Supreme Court held that Title VII "provides the exclusive judicial remedy for claims of discrimination in federal employment." In light of this precedent, our Court of Appeals "has repeatedly held that federal employees may not bring suit under the Constitution for employment discrimination that is actionable under Title VII." Ethnic Emps. of Library of Congress v. Boorstin, 751 F.2d 1405, 1415 (D.C.Cir. 1985). As a general rule, then, "where a plaintiff alleges facts that are actionable under Title VII and for which Title VII provides a remedy, Title VII preempts virtually all other federal causes of action...." Rochon v. FBI, 691 F.Supp. 1548, 1555 (D.D.C.1988). Consequently, even assuming that Plaintiff is correct that Defendants' actions exceeded the scope of their employment, Title VII preemption would still be applicable as long as Plaintiff's constitutional claims are ones that are actionable under Title VII and for which Title VII provides a remedy.
As the Court previously held in this case, the claims underlying Plaintiff's Bivens action against the individually sued Defendants represent "the very same claims that form the basis of plaintiff's Title VII claims .... [and] for which Title VII provides the exclusive remedy." April 28, 2010 Mem. Op., 708 F.Supp.2d at 54 (internal quotations and citation omitted). This conclusion is not altered by Plaintiff's "new evidence" and new theory, which arises from the same factual predicate as her Title VII claims.[4] As a result, Brown *175 makes clear that Plaintiff's Bivens action remains presumptively preempted by Title VII, regardless of whether the individually sued Defendants did in fact exceed the scope of their employment.[5]
Second, even if Title VII did not preempt Plaintiff's Bivens claim, the Civil Service Reform Act ("CSRA") would preclude a Bivens remedy in this case. As the Court held in its April 28, 2010 Memorandum Opinion, the CSRA is a special factor counseling against the recognition of Plaintiff's Bivens action. April 28, 2010 Mem. Op., 708 F.Supp.2d at 55-56.
The Supreme Court has made very clear that where an "elaborate remedial system," has been established by Congress it represents a special factor counseling hesitation and, in such cases, the judiciary should decline to exercise its discretion in creating damages remedies against federal officials in their individual capacity. Bush v. Lucas, 462 U.S. 367, 388-90, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). In United States v. Fausto, 484 U.S. 439, 455, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), the Supreme Court squarely held that the CSRA represents precisely such a comprehensive system for "reviewing personnel actions taken against federal employees."
Based upon these precedents, our Court of Appeals has concluded that "`special *176 factors' preclude the creation of a Bivens remedy for civil service employees ... who advance constitutional challenges to federal personnel actions [covered by the CSRA]," even when the CSRA affords "`no remedy whatsoever'" to plaintiff. Spagnola v. Mathis, 859 F.2d 223, 228, 230 (D.C.Cir.1988) (en banc) (citations omitted).
Attempting to avoid these holdings, Plaintiff argues that her Bivens claim should go forward as she is "an excepted civil servant ... not covered by the protections offered ... under the CSRA." Plaintiff's Mot. 11. Although she seeks to distinguish the circumstances of her case from Fausto and Spagnola, Plaintiff's Reply 6-9, those cases involve situations substantially similar to Plaintiff's[6] and directly rebut her claim that the preclusive effect of the CSRA is inapplicable.
As noted in Spagnola, the Supreme Court has made clear that "it is the comprehensiveness of the statutory scheme involved, not the `adequacy' of specific remedies extended thereunder, that counsels judicial abstention [under Bivens special factor analysis]." 859 F.2d at 227 (citing to Schweiker v. Chilicky, 487 U.S. 412, 422, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988)). In accordance with this principle, the relevant inquiry for determining whether the CSRA precludes a federal employee's constitutional claims is whether the action being challenged is cognizable under the CSRA as a "personnel action." Id. at 229. Where this is the case, "a case-by-case examination of the particular administrative remedies available to a given plaintiff [is] unnecessary." Id. at 228.
As detailed in the Court's April 28, 2010 Memorandum Opinion, Plaintiff's constitutional claims against the individual Defendants, which challenge their "decisions to transfer [her] to an allegedly inferior position and to restrict her responsibilities," qualify as "personnel actions" covered by the CSRA. April 28, 2010 Mem. Op., 708 F.Supp.2d at 55-56. Consequently, because the CSRA applies to Plaintiff's challenged actions, she is precluded from seeking judicial relief under Bivens even though she is an excepted civil servant for whom the CSRA affords no remedy. Fausto, 484 U.S. at 455, 108 S.Ct. 668 (holding that CSRA's "deliberate exclusion of employees in respondent's service category from the provisions establishing administrative and judicial review for personnel action" prevented respondent from seeking review in federal court); Id. at 448-49, 108 S.Ct. 668 (holding that the absence of certain types of relief in the CSRA for excepted civil servants "is not an uninformative consequence of the limited scope of the statute, but rather [the] manifestation of a considered congressional judgment that [excepted civil servants] should not have statutory entitlement to review for [certain] adverse action[s]....").
For the foregoing reasons, the Court denies Plaintiff's Motion for Reconsideration based upon her claims relating to Title VII preemption of her Bivens action.

*177 B. Plaintiff Is Not Entitled to Discovery from Defendants in Their Individual Capacity
With regard to her discovery-related claim, Plaintiff argues that dismissal of the individually sued Defendants should be reconsidered on the grounds that her opportunity to take discovery from them would be circumscribed by their removal from the case. Plaintiff's Mot. 9-10. In response, the Government has represented that Plaintiff "is fully entitled to depose each individually sued defendant and to serve the agency with discovery requests that seek information about what each individually sued defendant did, or did not do, with respect to plaintiff and the claims asserted in this case." Gov't Opp'n 7-8.
In light of the Government's representations that it will allow Plaintiff to take full discovery from Defendants, even though they are sued in their official capacity, as well as Plaintiff's failure to demonstrate any prejudice from such discovery, the Court denies Plaintiff's Motion for Reconsideration on the basis of this claim.[7]

III. CONCLUSION
For the reasons set forth above, the Court denies Plaintiff's Motion for Reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b). An Order will accompany this Memorandum Opinion.
NOTES
[1]  The factual background and procedural history of this case were fully detailed in this Court's April 28, 2010 decision, Kittner v. Gates, 708 F.Supp.2d 47 (D.D.C.2010). For purposes of this opinion, familiarity with these facts is assumed.
[2]  The new evidence includes, for example, documentation suggesting that the individually sued Defendants took actions to transfer Plaintiff from her previous position at OBNCR and to restrict employment opportunities available to Plaintiff both before and after her transfer, in retaliation for her decision to report Maj K., her former supervisor, for sexual harassment. Plaintiff's Mot. 4-7; Plaintiff's Reply Memorandum to Defendants' Opposition to Plaintiff's Motion for Reconsideration, 3-6 (July 1, 2010) ("Plaintiff's Reply") [Dkt. No. 40].
[3]  In her Reply brief, Plaintiff denies that she is presenting a new Bivens theory, but rather claims she is simply further supporting her previously-advanced theory, contained in paragraphs 189-191 of her Amended Complaint, "that the individual Defendants are liable to her under Bivens by negatively altering her employment status and impugning her reputation." Plaintiff's Reply 10. Contrary to Plaintiff's characterization, however, there are no allegations in these paragraphs of the Amended Complaint that Defendants acted outside the scope of their employment, nor can it be inferred that the claims contained in these paragraphs, alleging that Plaintiff's employment status and reputation were negatively affected by Defendants' actions, constitute allegations that Defendants necessarily exceeded the scope of their employment by engaging in these activities.
[4]  In her Motion for Reconsideration, Plaintiff again raises her alternative argument, originally presented during briefing on the Motion to Dismiss, that her Bivens claim is separate and distinct from her Title VII claims and is, therefore, not preempted. Plaintiff's Mot. 13-15. Although conceding that her Title VII and non-Title VII claims arise from a "common nucleus of operative facts," Plaintiff argues that, based upon new evidence, her Bivens claim should go forward as it "implicate[s] rights not protected by Title VII and harms not remedied by Title VII." Id. at 13-14. While it is true that Title VII does not preempt constitutional claims for which it provides no protection, Ethnic Emps. of Library of Congress, 751 F.2d at 1415-16, Plaintiff fails to demonstrate that her new evidence implicates constitutional rights that are distinct from her Title VII employment discrimination claims. See id. (dismissing those constitutional claims restating allegations of discrimination or retaliation cognizable under Title VII, while permitting alleged constitutional violations not cognizable under Title VII to go forward); Rochon, 691 F.Supp. at 1556 (dismissing, as preempted by Title VII, Bivens claims that were based upon plaintiff's "right to be free from discriminatory treatment with respect to the terms and conditions of his employment"). Instead, much of Plaintiff's argument amounts to little more than a re-litigation of the issue, which is impermissible on a "`motion to reconsider [as][it] is simply not an opportunity to reargue facts and theories upon which [the] court has already ruled.'" Aliotta v. Bair, 623 F.Supp.2d 73, 75 (D.D.C.2009) (quoting State of New York v. United States, 880 F.Supp. 37, 38 (D.D.C.1995)), aff'd, 614 F.3d 556 (D.C.Cir.2010).

The only new material fact or theory presented by Plaintiff is her allegation that the individual Defendants violated two criminal statutes, 18 U.S.C. § 1001, which prohibit false or fraudulent statements in "any matter within the jurisdiction" of the federal government, and 18 U.S.C. § 372, which prohibits conspiracies to impede or injure a federal officer). Plaintiff's Mot. 8, 14. However, as the Government correctly notes, this allegation cannot support Plaintiff's position that her Bivens action is separate and distinct from her Title VII claims. Defendants' Opposition to Plaintiff's Motion for Reconsideration, 5-7 (June 21, 2010) (Gov't Opp'n) [Dkt. No 37]. First, because the factual predicate for this new allegation was contained in her Amended Complaint, Plaintiff should have raised this claim during briefing on Defendants' Motion to Dismiss and cannot now present it here. Second, even if this allegation was properly raised in a motion for reconsideration, Plaintiff has provided no authority establishing that a Bivens claim can be based upon violations of federal criminal statutes, such as these, for which there is no private cause of action. See Peavey v. Holder 657 F.Supp.2d 180, 190 (D.D.C.2009) (holding that there is no private cause of action under 18 U.S.C. § 1001), aff'd, 2010 WL 3155823 (D.C.Cir. Aug. 9, 2010); Potts v. Howard Univ. Hosp., 598 F.Supp.2d 36, 39 n. 3 (D.D.C.2009) (holding that there is no private cause of action under 18 U.S.C. § 372).
[5]  While a Bivens claim that is actionable under Title VII is preempted by the statute, our Court of Appeals has recognized that nothing in Title VII's legislative history "even remotely suggests that Congress intended to prevent federal employees from suing their employers for constitutional violations against which Title VII provides no protection at all." Ethnic Emps. of Library of Congress, 751 F.2d at 1415. Consequently, where federal employees bring Bivens claims against their employers that are not covered by Title VII, "Congress did not intend for Title VII to displace those claims...." Id. at 1416. See Rochon, 691 F.Supp. at 1555 ("Brown stands for the proposition that Title VII preempts other remedies for discrimination in federal employment only when the federal employee is challenging action directly and singularly related to discrimination in the terms and conditions of his or her employment.") (emphasis in original).
[6]  In Fausto, the Supreme Court held that a federal employee who, like Plaintiff, was a part of the excepted civil service, was precluded from bringing a judicial action challenging a personnel decision covered by the CSRA even though that employee was personally ineligible to seek CSRA review. 484 U.S. at 455, 108 S.Ct. 668. Similarly, in Spagnola, our Court of Appeals directly addressed whether the CSRA precluded Bivens claims brought by federal employees, who were barred from taking advantage of the CSRA's "elaborate administrative protections" and whose remedies under the CSRA were therefore "not so complete." 859 F.2d at 225-26. The court ultimately held that the CSRA remained preclusive in such circumstances. Id. at 226-29.
[7]  In fact, it is clear that Plaintiff would not be prejudiced by the discovery plan offered by the Government. The Court has already ruled that Plaintiff's Bivens claim is barred. Consequently, she has no basis for seeking this type of discovery and there are no further grounds suggested by Plaintiff for taking discovery of Defendants in their individual capacity.


                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

SOUTHERN UNION COMPANY,                         No. 06-17347
                 Plaintiff-Appellee,
                v.                                D.C. No.
                                               CV-99-01294-ROS
JAMES M. IRVIN,
                                                   ORDER
             Defendant-Appellant.
                                          
         Appeal from the United States District Court
                  for the District of Arizona
          Roslyn O. Silver, District Judge, Presiding

                Submitted November 26, 2007*

                    Filed November 7, 2008

       Before: Stephen Reinhardt, John T. Noonan, and
           Ferdinand F. Fernandez, Circuit Judges.

                           Order;
               Concurrence by Judge Reinhardt;
                  Dissent by Judge Noonan

                            COUNSEL

Robert A. Mandel, Greenberg Traurig, LLP, Phoenix, Ari-
zona, for the defendant-appellant.

Tom Q. Ferguson, Doerner, Saunders, Daniel & Anderson,
L.L.P., Tulsa, Oklahoma, for the plaintiff-appellee.

  *The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).

                               15281
15282            SOUTHERN UNION CO. v. IRVIN
                          ORDER

   The jury in this case awarded $975,181 in compensatory
damages to Southern Union Company, of which it assessed
forty percent or $395,072.38 against James M. Irvin, and went
on to assess an additional $60,000,000 of punitive damages
against him. On appeal, we vacated the punitive damage
award, which amounted to punitive damages of over 153
times the compensatory damage award. See S. Union Co. v.
Sw. Gas Corp., 415 F.3d 1001, 1009 (9th Cir. 2005) (S. Union
I). We then remanded for a remittitur or a new trial on dam-
ages. Id. at 1011. The district court offered Southern Union
the opportunity to accept a remittitur of punitive damages to
$4 million, that is a punitive damage award at slightly over
ten times the compensatory damage award. Southern Union
accepted. Irvin again appeals.

  Due Process “prohibits the imposition of grossly excessive
or arbitrary punishments on a tortfeasor.” State Farm Mut.
Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416, 123 S. Ct.
1513, 1519-20, 155 L. Ed. 2d 585 (2003). No “simple mathe-
matical formula” exists in this area. BMW of N. Am., Inc. v.
Gore, 517 U.S. 559, 582, 116 S. Ct. 1589, 1602, 134 L. Ed.
2d 809 (1996).

   Nevertheless, the Court has pointed to three guideposts:
“(1) the degree of reprehensibility of the defendant’s miscon-
duct; (2) the disparity between the actual or potential harm
suffered by the plaintiff and the punitive damages award; and
(3) the difference between the punitive damages awarded by
the jury and the civil penalties authorized or imposed in com-
parable cases.” State Farm, 538 U.S. at 418, 123 S. Ct. at
1520. In considering them, our goal is to determine whether
the punitive damages achieved their ultimate objectives of
deterrence and punishment, without being unreasonable or
disproportionate. See Exxon Shipping Co. v. Baker, ___ U.S.
___, ___, 128 S. Ct. 2605, 2621, 171 L. Ed. 2d 570 (2008);
State Farm, 538 U.S. at 419, 426, 123 S. Ct. at 1521, 1524.
                     SOUTHERN UNION CO. v. IRVIN                      15283
   Here, the parties have not pointed to other similar cases, if,
indeed, there are any, or to comparable penalties authorized
for similar conduct. We therefore begin by looking to the
other two guideposts.

   We have already touched upon the second of them, and we
do find the over ten to one ratio disquieting in this case,
although choosing a correct ratio among the infinite number
of ratios theoretically available is no easy task.1 It is a guide-
post we will return to after first considering the reprehensibil-
ity issue; that is the issue that the Court itself has referred to
as the most important of the guideposts. See BMW, 517 U.S.
at 575, 116 S. Ct. at 1599; see also State Farm, 538 U.S. at
419, 123 S. Ct. at 1521.

   As we see it, most of the indicia of reprehensibility do not
appear here. See State Farm, 538 U.S. at 419, 123 S. Ct. at
1521; Planned Parenthood of Columbia/Willamette Inc. v.
Am. Coal. of Life Activists, 422 F.3d 949, 957-60 (9th Cir.
2005). Any harm caused was not to some poor struggling per-
son; it was inflicted upon a very large company — one that
Irvin claims to have thought was unsavory, by the way. More-
over, the harm was not physical; reckless disregard of the
safety of others was not involved; Southern Union was not
financially vulnerable; and the incident was isolated, although
it was not a mere accident. When we say that the incident was
isolated, we do not intend to condone Irvin’s actions either at
the time of the wrongdoing or at trial.2 That is, we do not
overlook the fact that Irvin held an important public position,
which gave him great power to aid or wrong others.3 Irvin, as
   1
     It is worth noting, however, that when the Supreme Court selected a
ratio for federal maritime law purposes, rather than constitutional pur-
poses, it saw a ratio of one to one as the “fair upper limit.” Exxon Ship-
ping, __ U.S. at __, 128 S. Ct. at 2633.
   2
     At trial, Irvin actually sought to impede the jury’s search for truth. S.
Union I, 415 F.3d at 1008.
   3
     The Commission of which he was a member “has sometimes been
dubbed the fourth branch of the government of Arizona.” S. Union I, 415
F.3d at 1014 (Fernandez, J., concurring and dissenting).
15284             SOUTHERN UNION CO. v. IRVIN
the evidence showed, abused and misused his power and
caused significant damage to Southern Union — he has been
ordered to pay close to $400,000 of compensatory damages
for that. But, the evidence does not prove that Irvin obtained
(or sought) any personal gain from his actions, certainly no
gain of a financial nature, whether or not that was the case.

   So, as is always true, we return to the question of how
much is enough, and of when the constitutional limit is
reached. Irvin is far from commendable, but he has not
inflicted egregious physical or economic harm upon the weak,
and we cannot even say on the basis of the evidence that he
sold his office for financial gain. He will also have to pay
compensatory damages. That award of damages was not pal-
try or minimal by any means. It was substantial. Undoubtedly
Irvin’s behavior outraged the jurors and the district judge, all
of whom listened to and saw him in the close quarters of a
courtroom setting. Still, wrong and wrong-headed though he
is, we do not see constitutional justification for calling down
the wrath of Apollyon upon him and his finances.

   In fine, as we see it, the Constitution permits a three to one
ratio of punitive to compensatory damages in this case, but
not more. That is the sum of $1,185,217.14 in addition to the
compensatory damages of $395,072.38. In selecting this ratio,
we have considered whether the amount of punitive damages
it results in is commensurate with achieving the two purposes
we have mentioned without exceeding the constitutional limit.
We have determined that it is in this case. In so stating, we
emphasize that where the constitutional limit lies with respect
to punitive damages will vary from case to case. Determining
that limit is an art, not a science; no mathematical formula
controls; no single asymptote defines the limit for all cases.

  We see no proper reason to remand this case to the district
court for further proceedings regarding punitive damages.
“Having already afforded the district court an opportunity to
review the award[ ] in the first instance, we believe it is
                 SOUTHERN UNION CO. v. IRVIN             15285
appropriate to remit rather than again to remand.” Planned
Parenthood, 422 F.3d at 963.

   Therefore, we reverse the district court’s judgment regard-
ing the punitive damage award, and vacate it. We reduce the
award to the amount of $1,185,217.14. We also remand so
that the district court may order a new trial unless Southern
Union accepts the remittitur. If accepted, post judgment inter-
est shall run on the reduced award from the date of entry of
the original judgment, August 14, 2003. See Planned Parent-
hood of Columbia/Willamette Inc. v. Am. Coal. of Life Activ-
ists, 518 F.3d 1013, 1022 (9th Cir. 2008).

   REVERSED and VACATED as to the amount of the puni-
tive damage award and REMANDED. The parties shall bear
their own costs on appeal.

REINHARDT, Circuit Judge, concurring:

   Although I concur in the order, I would add another consid-
eration to our discussion of the relevant factors in assessing
punitive damages.

   If punitive damages are to achieve the twin purposes of
deterrence and punishment, see Order at 15282-83, we must
consider the impact of a damage award upon the particular
defendant in determining the constitutional limit. The appro-
priate ratio of punitive to compensatory damages may vary
with the amount of the compensatory damages and the net
worth of the defendant. In some cases, although the conduct
may be similar, because of lower compensatory damages or
the defendant’s higher net worth, a higher ratio may be neces-
sary to achieve a deterrent or punitive effect. In other cases,
where the variables are the opposite, a lower ratio may be
appropriate.
15286            SOUTHERN UNION CO. v. IRVIN
   For example, if $10,000 in compensatory damages is
awarded against a defendant with a net worth of $50,000, then
$10,000 in punitive damages may be an appropriate amount
to achieve both the punitive and deterrent purposes. The same
amount of punitives awarded against a company earning $1
billion a year, with a net worth of $50 billion, would hardly
serve either of these objectives.

   The precept that the defendant’s wealth should be consid-
ered if we are to achieve the intended effects of deterrence
and punishment is hardly novel. See, e.g., Browning-Ferris
Indus. v. Kelco Disposal, 492 U.S. 257, 300 (U.S. 1989)
(O’Connor, J., concurring in part and dissenting in part)
(“Blackstone remarked that the ‘quantum, in particular, of
pecuniary fines neither can, nor ought to be, ascertained by
any invariable law. The value of money itself changes from
a thousand causes; and at all events, what is ruin to one man’s
fortune, may be a matter of indifference to another’s.’ ”)
(quoting William Blackstone, 4 Commentaries *371); H.R.
Rep. No. 102-40, at 73 (1991) (“[J]uries normally take the
defendant’s financial standing into account in awarding puni-
tive damages; courts have recognized that a higher amount
may be appropriate against a particularly large or wealthy
employer, to ensure effective deterrence.”); Restatement (Sec-
ond) of Torts § 908 (1979) (“In assessing punitive damages,
the trier of fact can properly consider the character of the
defendant’s act, the nature and extent of the harm to the plain-
tiff that the defendant caused or intended to cause and the
wealth of the defendant.”).

   In the case before us, an award of over ten times the
amount of the compensatory damages is far in excess of one
that would reasonably accomplish the twin objectives. The
proposed punitive damages are hardly commensurate with the
need to deter the wrong-doer or others like him from commit-
ting similar offenses. Nor are they commensurate with the
need to impose sufficient punishment on this defendant.
                 SOUTHERN UNION CO. v. IRVIN              15287
   In sum, I write separately to express my agreement that the
ratio arrived at today is not a magic figure, although it is the
proper ratio here, but, more important, to make the point
sometimes overlooked, that there should be no fixed ratio;
rather, in a number of cases the ratio must be determined in
light of the two purposes discussed above.

NOONAN, Circuit Judge, dissenting:

   What’s a court of appeals up to when it decides that it is
better equipped to determine a defendant’s delinquency and to
assess the appropriate penalty than the judge who heard the
testimony and who has even experienced the defendant’s mis-
conduct in her court? A federal court of appeals has a definite
duty when it reviews an award of punitives. In a federal case,
it must decide whether the damages are so excessive and so
unexpected that they offend the principle of fairness enshrined
in the Due Process Clause of the Fifth Amendment. See BMW
of North America v. Gore, 517 U.S. 559, 574 (1996). The
legal question is to be decided de novo. Cooper Industries,
Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 435-436
(2001).

   In reaching this determination of constitutional law the
court is to be guided by the degree of reprehensibility of the
offense; the ratio of the punitives to the compensatory dam-
ages awarded; and the civil or criminal penalties that could be
awarded for comparable misconduct. Gore, 512 U.S. at 574-
585. Unavoidably a reviewing court must exercise its own
judgment in applying these guideposts to the facts established
in the case. The court must exercise further judgment in deter-
mining whether its legal conclusion, after applying these legal
guides, is that the constitution has been violated by the award.
Undeniably, in the absence of a mechanical rule, the subjec-
tive views of the judges affect the decision. See Karlan,
“ ‘Pricking the Lines’: The Due Process Clause, Punitive
15288            SOUTHERN UNION CO. v. IRVIN
Damages and Criminal Punishment.” 88 Minn. L. Rev. 880,
883 (2004). But this judgment must be based on facts.

   She who heard the case is in the best position to determine
the facts. In the exercise of this function, she is analogous to
a sentencing judge in a criminal case: she has heard all the
witnesses and formed a judgment of the defendant’s demea-
nor and credibility. Cooper Industries, 532 U.S. at 440. What
the reviewing court is not free to do is to make up facts or
suppress facts established at trial. The legal question before
the court, do the damages awarded offend due process of law,
is not to be confused with the question: would I have awarded
these damages if I were the district judge. Our court, I sug-
gest, has answered the latter, irrelevant query.

   No need here to set out at length the facts established at
trial and stated in our opinion upholding Irvin’s liability.
Southern Union v. Irvin, 415 F.3d 1001 (9th Cir. 2005). I
summarize those facts and what could rationally be inferred
from them: Irvin, the chairman of the Arizona Corporation
Commission, worked determinedly for a period of four
months to promote the merger of an Arizona utility company
with another utility and to defeat a merger proposed by South-
ern Union over $100 million more beneficial to the Arizona
company. In court, Irvin testified that the motive of his machi-
nations was the public good and that his calculated course to
achieve his end was within the scope of his official duties.
The jury did not believe his tale. To the contrary, the jury
awarded punitives that reflected outrage at Irvin’s outrageous
conduct. As his motive was not the public welfare, what
prompted his outrageous behavior? Ruling on the award of
punitives, the district court found as a fact that one motive
consisted in Irvin’s “personal interests.” Southern Union Co.
v. Southwest Gas Corp., 281 F.Supp.2d 1090, 1096 (2003).

   Because Southern Union challenged its rival in court before
the Irvin-backed transaction went through, no bribe was paid.
But consider what a rational jury could have inferred from the
                  SOUTHERN UNION CO. v. IRVIN              15289
fact that a young protégé of Irvin with little else to recom-
mend him except this connection was to be paid a super-large
fee for his help in arranging the deal. One does not need to
look further to identify Irvin’s “personal interests.”

  The district court also found:

    Irvin’s purposeful persistence in this effort was matched by
his efforts at concealment. As far as possible, his activities to
block the merger were kept from his fellow commissioners.
Southern Union Co., 281 F. Supp.3d at 1094. Afterwards he
covered up his wrongdoing to ensure the outcome of the
scheme. Id. When Southern Union challenged him and began
litigation, his effort at concealment continued. He persevered
in hiding his wrongful acts throughout the trial and in particu-
lar while testifying before the jury. Egregiously, he arranged
the manufacture of evidence, purported notes of his wife’s
telephone conversation, which he persuaded his counsel to
present as genuine to the court. Id. at 1096. Such intentional
fabrication of evidence confirmed his consciousness of guilt
and added to the reprehensibility of his conduct.

   It is not apparent to me how this court can overlook,
neglect, or minimize these findings of the trial judge. It is
equally not apparent to me how this court can treat the dere-
liction of duty by a high public official as though it were a
run-of-the-mill tort. I take judicial notice of the existence and
conclusion of a report to the Arizona legislature. Fed. R. Evid.
201(b); Transmission Agency of Northern California v. Sierra
Pacific Power Co., 295 F.3d 918, 924 (9th Cir. 2002). Irvin
was a prominent Republican, holding high elective office in
Arizona. The Republican-controlled Arizona House of Repre-
sentatives conducted an investigation of his conduct as com-
missioner of corporations and recommended his impeachment
for “high crimes and misdemeanor under the Arizona consti-
tution.” In the Matter of the Arizona House of Representatives
Investigation of Certain Allegations Against State Corpora-
tion Commissioner James M. Irvin, Vol. I: Southern Union v.
15290            SOUTHERN UNION CO. v. IRVIN
Irvin, AZ H.R. Rep., 46th Leg., 191 (2003). Irvin resigned a
week after the report became known. Central to the report was
Irvin’s conduct affecting the Southern Union merger.

   I do not cite the report as further evidence of the conduct
already established in court, but as a measure of the reprehen-
sibility of Irvin’s conduct. Punitives cannot be used to punish
a defendant for harming persons not before the court. Philip
Morris, USA v. Williams, 127 S. Ct. 1057, 1063 (2007). At the
same time, “Evidence of actual harm to nonparties can help
show that the conduct that harmed the plaintiff also posed a
substantial risk of harm to the general public, and so was par-
ticularly reprehensible.” Id. As we have already determined,
Irvin’s “exploitation of high public office” and the noneco-
nomic damage done by him in fabricating evidence in his
defense in court were proper factors to be considered in the
punitives award. Southern Union v. Irvin, 415 F.3d 1001,
1011 (2005). Due process has not been denied this man faith-
less in public office and unscrupulous in his own defense.

  I dissent.
                             PRINTED FOR
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The summary, which does not constitute a part of the opinion of the court, is copyrighted
                          © 2008 Thomson Reuters/West.


256 U.S. 402 (1921)
UNITED STATES
v.
AETNA EXPLOSIVES COMPANY.
No. 296.
Supreme Court of United States.
Argued April 27, 28, 1921.
Decided May 16, 1921.
CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS APPEALS.
*403 Mr. Assistant Attorney General Hanson for the United States.
Mr. Addison S. Pratt for respondent.
MR. JUSTICE McREYNOLDS delivered the opinion of the court.
A writ of certiorari to the Court of Customs Appeals was granted under the Act of August 22, 1914, c. 267, 38 Stat. 703. 9 Cust. App. Rep. 298.
The question presented is whether the imports came within paragraph 387 of the free list, Tariff Act of 1913, c. 16, 38 Stat. 114, which provides
"Acids: Acetic or pyroligneous, arsenic or arsenious, carbolic, chromic, fluoric, hydrofluoric, hydrochloric or muriatic, nitric, phosphoric, phthalic, prussic, silicic, sulphuric or oil of vitriol, and valerianic;" or was dutiable under paragraph 5
"Alkalies, alkaloids, and all chemical and medicinal compounds, preparations, mixtures and salts, and combinations thereof not specially provided for in this section, 15 per centum ad valorem."
The imported merchandise was nitric acid, to which approximately 20 per cent. by weight and 5 per cent. according to value of sulphuric acid had been added for the sole purpose of preventing corrosion of steel tank cars essential for transportation of the former acid in large quantities. That the addition of sulphuric acid prevents nitric acid from attacking steel is a well known fact concerning which there is no very satisfactory explanation. The court below found the sulphuric acid was added solely for transportation purposes, and that the result was not a mixture merchantable as such for use in the United States. It accordingly held that no duty should have been demanded and among other things said:
*404 "The word `preparations' [in paragraph 5] implies of course that they are something prepared and adapted to particular uses or services. It is no stretch to say that the word `mixtures' as here employed was used in a similar sense to import mixtures susceptible of commercial use as they exist, or are at least such as are purposely started on their way toward adaptation to such use. While not resting this case solely upon this view, it certainly would appeal with great force were it the only consideration involved." "The testimony fairly tends to show that as a commercial proposition there is only one practical means of transporting strong nitric acid such as that involved in the present importation in quantities sufficient to meet the current demand, and that is to mix it with a sufficient amount of sulphuric acid and ship it in tank cars or drums." "It is evident that the importer sought to introduce nitric acid and had no desire to import sulphuric acid, or nitric and sulphuric acid as a usable mixture. This small percentage of sulphuric acid which was relatively insignificant in its money value was employed solely for the purpose of making it possible to ship the nitric acid into this country in usable quantities. The result was not a mixture merchantable as such for use in the United States. . . . The merchandise had not reached the state of a commercial mixture contemplated by the statute. It was susceptible of no use other than as nitric acid, which must before use be again treated. The mixing of this minimum amount of sulphuric acid should be treated as a means of and part of the shipment, and as an act as essential in the importation of nitric acid as would have been the proper packing of glassware or other goods designed for shipment by rail." "In the present case we are convinced that there was neither an advantage to the importer in adding the requisite amount of sulphuric acid to admit of safe shipment of the nitric acid nor was there any possible loss of revenue to the *405 Government. The sole purpose for which this addition was made was to admit of shipment. It would be sticking in the bark to say that this was such a mixture as the statute in question contemplates. It is not yet prepared. It has not been advanced as a preparation for actual use except to the extent that a small portion of the requisite amount of sulphuric acid which when added in the proper quantity would result in making a mixture which was usable, is found in this tank instead of some other. The quantity is relatively insignificant." "We think that the true rule is that the introduction of a quantity of sulphuric acid solely for the purpose of rendering the transportation of nitric acid safe, and which does not result in a usable mixture, is more in the nature of an act of shipment than an admixture and does not produce a substance which is dutiable under paragraph 5."
We find no reason for disapproving the conclusion reached by the Court of Customs Appeals. The applicable tariff act granted free entry to both nitric and sulphuric acids, and, viewed practically, the commodity in question was nothing more than nitric acid rendered non-injurious to steel tanks by adding sulphuric acid of small value. The two acids do not interact and the result was a mere mechanical mixture not intended or adapted as such for commercial use and not a chemical mixture within the true intent of paragraph 5.
The judgment of the court below must be
Affirmed.
MR. JUSTICE DAY took no part in the consideration or decision of this case.
MR. JUSTICE CLARKE dissents.


Matter of Dah'Marii G. (Cassandra G.) (2017 NY Slip Op 09077)

Matter of Dah'Marii G. (Cassandra G.)

2017 NY Slip Op 09077

Decided on December 22, 2017

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 22, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.

1504 CAF 16-01181

[*1]IN THE MATTER OF DAH'MARII G. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; CASSANDRA G., RESPONDENT-APPELLANT.

EVELYNE A. O'SULLIVAN, EAST AMHERST, FOR RESPONDENT-APPELLANT.
JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.
NANCY J. BIZUB, ATTORNEY FOR THE CHILD, BUFFALO.

	Appeal from an order of the Family Court, Erie County (Eric R. Adams, A.J.), entered June 27, 2016 in a proceeding pursuant to Social Services Law § 384-b. The order, inter alia, terminated the parental rights of respondent with respect to the subject child.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order that revoked a suspended judgment entered upon her admission of permanent neglect and terminated her parental rights with respect to the subject child. We affirm. Preliminarily, we note that the prior order of Family Court finding permanent neglect and suspending judgment was entered on the consent of the parties, and thus it is beyond appellate review (see Matter of Martha S. [Linda M.S.], 126 AD3d 1496, 1497 [4th Dept 2015], lv dismissed in part and denied in part 26 NY3d 941 [2015]; Matter of Xavier O.V. [Sabino V.], 117 AD3d 1567, 1567 [4th Dept 2014], lv denied 24 NY3d 903 [2014]). Here, the mother never moved to vacate the finding of neglect or to withdraw her consent to the order, and thus her contention that her consent was not knowing, intelligent, and voluntary is not properly before us (see Martha S., 126 AD3d at 1497; Xavier O.V., 117 AD3d at 1567). In any event, that contention lacks merit.
Contrary to the mother's further contention, the court properly suspended judgment and terminated her parental rights. It is well established that, "if Family Court determines by a preponderance of the evidence that there has been noncompliance with any of the terms of [a] suspended judgment, the court may revoke the suspended judgment and terminate parental rights" (Matter of Ireisha P. [Shonita M.], 154 AD3d 1340, 1340 [4th Dept 2017] [internal quotation marks omitted]; see Matter of Ramel H. [Tenese T.], 134 AD3d 1590, 1592 [4th Dept 2015]). Here, the testimony of the case planner assigned to the mother established that the mother was repeatedly discharged from substance abuse treatment and repeatedly failed drug tests (see Matter of Carmen C. [Margarita N.], 95 AD3d 1006, 1008 [2d Dept 2012]). Thus, the court properly determined that the mother "was unable to overcome the specific problems that led to the removal of the child from her home" (Ramel H., 134 AD3d at 1592 [internal quotation marks omitted]; see Matter of Jason H. [Lisa K.], 118 AD3d 1066, 1068 [3d Dept 2014]), and that it is in the child's best interests to terminate the mother's parental rights (see Ireisha P., 154 AD3d at 1340; Ramel H., 134 AD3d at 1592).
To the extent that the mother contends that petitioner improperly sought to revoke the six-month suspended judgment after four months, we reject that contention. Where, as here, "there is proof that a parent has repeatedly violated significant terms of a suspended judgment, petitioner is not obligated to wait until the end of the period of suspended judgment to seek to [*2]revoke the suspended judgment" (Matter of Alexandria A. [Ann B.], 93 AD3d 1105, 1106-1107 [3d Dept 2012], lv denied 19 NY3d 805 [2012]).
Entered: December 22, 2017
Mark W. Bennett
Clerk of the Court


                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 7, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-51164
                        Conference Calendar

UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN CHAVEZ-ITUARTE, also known as Juan Chavez,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Western District of Texas
                    USDC No. 3:06-CR-574-ALL
                      --------------------

Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Juan Chavez-

Ituarte raises arguments that are foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224, 235 (1998), which held that

8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate

criminal offense.   The Government’s motion for summary affirmance

is GRANTED, and the judgment of the district court is AFFIRMED.

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.


11 F.3d 1070
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Margarita D. RIVERA, Petitioner,v.DEPARTMENT OF the NAVY, Respondent.
No. 93-3051.
United States Court of Appeals, Federal Circuit.
Oct. 12, 1993.

Before NIES, Chief Judge, RICH and LOURIE, Circuit Judges.
PER CURIAM.

1
Petitioner Margarita D. Rivera, a former civilian employee of the Department of the Navy, appeals the dismissal of her appeal to the Merit Systems Protection Board (Docket number NY0752920464-I-1), contesting her removal from her position as a steward utilityman for use of abusive language and assaulting another employee.  We affirm the dismissal of her appeal.

Discussion

2
The Administrative Judge dismissed Ms. Rivera's appeal because the parties reached a settlement of all the issues of the case under the terms of which Ms. Rivera was permitted to resign.  His decision became the Board's decision as Ms. Rivera did not file a petition for review.  Ms. Rivera then appealed to this Court.

3
We review the Board's decision under a very narrow standard, affirming the decision unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;  (2) obtained without procedures required by law, rule, or regulation having been followed;  or (3) unsupported by substantial evidence.  5 U.S.C. Sec. 7703(c) (1988).

4
While Ms. Rivera contends her resignation was involuntary, no evidence suggests that she resigned because she was coerced to enter into the settlement agreement.  Moreover, an attorney represented her during the proceedings before the Board.  Thus, her loss of employment was voluntary and not the result of an adverse action.   Christie v. United States, 518 F.2d 584, 587 (Ct.Cl.1975).  Under such circumstances, the Board correctly dismissed her appeal for lack of jurisdiction.  Accordingly, we determine that the Board's decision was not arbitrary or capricious, was supported by substantial evidence, and was issued in accordance with applicable provisions of the law.