                                                                                Opinions of the United
2008 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

12-2-2008

Wayne Costigan v. John Yost
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2180

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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 08-2180
                                       ___________

                                  WAYNE COSTIGAN,
                                                Appellant

                                             v.

                               JOHN YOST, Warden
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                         (D.C. Civil Action No. 07-cv-00165)
                      District Judge: Honorable Kim R. Gibson
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 1, 2008

         Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges.

                                 (Filed: December 2, 2008 )
                                        ___________

                                        OPINION
                                       ___________

PER CURIAM

      Wayne Costigan, pro se, appeals an order of the United States District Court for

the Western District of Pennsylvania denying his habeas petition filed pursuant to 28

U.S.C. § 2241. We will affirm.
       Costigan pleaded guilty to bank robbery and to possession of a firearm during the

commission of a crime of violence. In 2004, the United States District Court for the

Eastern District of New York sentenced him to 123 months of imprisonment, ordered him

to pay $103,118 in restitution upon release from prison, and imposed “a special

assessment of $200 which shall be due immediately.” In January 2005, Costigan signed a

contract under the Bureau of Prison’s (“BOP”) Inmate Financial Responsibility Program

(“IFRP”), whereby he agreed to pay $50 each quarter to satisfy his financial obligations.

Costigan signed another IFRP contract in March 2007, agreeing to pay $25 per quarter.

Nevertheless, Costigan failed to make any payments.

       In July 2007, Costigan filed a petition under 28 U.S.C. § 2241, claiming that the

District Court impermissibly delegated to the BOP the task of establishing the schedule

by which he would pay the special assessment imposed as part of his sentence. He argued

that, because the BOP was not authorized to set the payment schedule, it improperly

imposed “sanctions” based on his failure to participate in the IFRP. The case was

referred to a Magistrate Judge, who concluded that, by setting the special assessment as

due immediately, the District Court did not impermissibly delegate authority. Over

Costigan’s objections, the District Court adopted the Magistrate Judge’s Report and

Recommendation and dismissed the § 2241 petition. Costigan timely appealed.

       Because Costigan’s challenge goes directly to execution of the sentence (i.e.,

whether the BOP has authority to set the terms of the payment of the special assessment),

                                             2
the claim falls squarely within those properly raised in a petition for habeas corpus under

§ 2241. See Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). In support of his claim,

Costigan relies on United States v. Coates, 178 F.3d 681, 685 (3d Cir. 1999), where we

held that, under the Mandatory Victims Restitution Act (“MVRA”), the sentencing court

cannot delegate the scheduling of restitution payments to a probation officer or to the

BOP because the fixing of restitution payments is an exclusively judicial act. More

recently, we held that a sentencing court impermissibly delegates its authority when it

orders immediate payment of restitution with knowledge that the defendant could not

make immediate payment in full. See United States v. Corley, 500 F.3d 210, 226-27 (3d

Cir. 2007). These holdings are based on 18 U.S.C. § 3664(f)(2), which provides that, “in

consideration of” the defendant’s financial resources, the sentencing court “shall . . .

specify in the restitution order the manner in which, and the schedule according to which,

the restitution is to be paid.” See Coates, 178 F.3d at 684 (“[s]ince the MVRA mandates

that district courts schedule restitution payments after taking into account the defendant’s

financial resources, the District Court’s failure to do so here constitutes plain error.”);

Corley, 500 F.3d at 227.

       Importantly, however, Costigan is not challenging that portion of the judgment

pertaining to restitution. Instead, his claim is based exclusively on the sentencing court’s

failure to set a schedule for paying the $200 special assessment. The special assessment

was mandatory under 18 U.S.C. § 3013(a)(2)(A), and was to be “collected in the manner

                                               3
that fines are collected in criminal cases.” 18 U.S.C. § 3013(b). The Attorney General is

responsible for the collection of criminal fines. See 18 U.S.C. § 3612(c). The time and

method of payment is governed by 18 U.S.C. § 3572(d), which provides that “[a] person

sentenced to pay a fine or other monetary penalty, including restitution, shall make such

payment immediately, unless . . . the court provides for payment on a date certain or in

installments.” But, unlike with restitution, there is no provision mandating that the order

for a fine or special assessment include a payment schedule in consideration of the

defendant’s economic circumstances. Therefore, because the sentencing court was not

required to set a payment schedule for the special assessment, we will affirm the District

Court’s order denying Costigan’s § 2241 petition.

                                             4


02-11-163-CR

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00163-CR

John Paul Ross

APPELLANT

V.

The State of Texas

STATE

----------
FROM THE 396th
District Court OF Tarrant COUNTY
----------
MEMORANDUM
OPINION[1]
----------
I.
Introduction
In
three issues, Appellant John Paul Ross appeals his robbery conviction. We affirm.
II.
Factual and Procedural Background
Ross
entered a CVS pharmacy wearing a hat and sunglasses, approached photo manager
Maria Hernandez at the cash register, told her that he wanted to exchange an
item, and handed her the item in a sack.[2]  Ross then told Hernandez
that he had forgotten his wallet and that he would be right back.  When Ross
returned, Hernandez told him that she could not do anything without a receipt.  At
that point, Ross told her to come closer to the counter and then whispered for
her to “nice and quietly” put all of the money in the cash drawer into the sack
that he had given her.[3]  Hernandez told Ross that
she did not have a key to the register and that he had to buy something for her
to open it.  Ross said to her, “[Y]ou think I’m playing?”  Hernandez replied
that she was “not playing either.”
Hernandez
said that she moved away from the cash register and unsuccessfully tried to get
the attention of her manager, Haley Phillips.  When Ross approached Phillips, Hernandez
asked a customer to call 9-1-1, but the customer was unable to do so because she
did not have a cell phone.  Once Hernandez got Phillips’s attention, she told
Phillips that they were being robbed and that Phillips needed to call 9-1-1.  Phillips,
who knew Hernandez not only as a coworker but also as a long time family
friend, said that she could tell from the look in Hernandez’s eyes that she was
scared.  Phillips said that after she called 9-1-1, when Ross asked Phillips
what she was doing in a stern voice, she “freak[ed] out” and became hysterical
before she heard the approaching police sirens.
Hernandez
testified that Ross approached her again and whispered to her to finish ringing
up her customer, to leave the register open, and to hand him the money.  But Hernandez
rang up three or four customers and then closed the register each time.  After
one of those occasions, Ross asked Hernandez why she had closed the register,
and Hernandez told him that she was not going to give him anything.  Ross left
the store when police vehicle sirens became audible, but police apprehended him
before he drove out of the parking lot.  The State indicted Ross for robbery.
Hernandez
stated that she had been angry about having been robbed at gunpoint the
previous week but she was also afraid during the encounter with Ross and that
she felt threatened by both Ross’s words and his actions.  Ross wore his
sunglasses and hat the entire time and kept his hands in his pockets, but
Hernandez said that she never saw a weapon and that she could tell that Ross did
not have a weapon in his pockets.  However, Hernandez also said that she was
afraid that Ross might grab her, pull her over the counter, or otherwise injure
her somehow.  Hernandez testified that she thought that Ross was trying to
commit theft and that she felt threatened and scared; she agreed that she was
afraid of imminent injury.[4]  Phillips and Fort Worth
Police Officer Stephanie Tabor, who responded to the 9-1-1 call, both described
Hernandez’s post incident demeanor as shaking and crying.[5]
A
jury found Ross guilty of robbery, and the trial court sentenced him to thirty
years’ confinement.  This appeal followed.
III.
Fear of Imminent Bodily Injury
In
his first issue, Ross claims that there was insufficient evidence to prove that
he either intentionally or knowingly threatened or placed Hernandez in fear of
imminent bodily injury or death.
A.  Standard
of Review
In
our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
verdict to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010).
This
standard gives full play to the responsibility of the trier of fact to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.  Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.  The trier of
fact is the sole judge of the weight and credibility of the evidence.  See
Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State, 270
S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075
(2009).  Thus, when performing an evidentiary sufficiency review, we may not
re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder.  Williams v. State, 235 S.W.3d 742,
750 (Tex. Crim. App. 2007).  Instead, we Adetermine
whether the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to
the verdict.@  Hooper v. State, 214 S.W.3d 9,
16–17 (Tex. Crim. App. 2007).  We must presume that the factfinder resolved any
conflicting inferences in favor of the verdict and defer to that resolution.  Jackson,
443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at 638.
In
determining the sufficiency of the evidence to show an appellant=s
intent, and faced with a record that supports conflicting inferences, we Amust
presume—even if it does not affirmatively appear in the record—that the trier
of fact resolved any such conflict in favor of the prosecution, and must defer
to that resolution.@  Matson v. State,
819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
B.  Robbery
The
State had to prove beyond a reasonable doubt that Ross, while in the course of
committing theft of property and with intent to obtain or maintain control
of the property, intentionally or knowingly threatened or placed Maria
Hernandez in fear of imminent bodily injury or death.  See Tex. Penal Code
Ann. § 29.02 (West 2011).  This statute, written in the disjunctive, covers
both a situation in which the defendant actually threatens the victim and a
situation in which the defendant implicitly threatens the victim and places the
victim in fear.  See Howard v. State, 333 S.W.3d 137, 138–39 (Tex. Crim.
App. 2011); see also Olivas v. State, 203 S.W.3d 341, 346 (Tex. Crim.
App. 2006) (recognizing that “to threaten” and “to place someone in fear” have two
distinct meanings).  The court of criminal appeals has further explained that
[t]he plain language of the statute encompasses not just
explicit threats, but whatever implicit threats may lead to the victim being
placed in fear.  So long as the defendant’s actions are “of such nature as in
reason and common experience is likely to induce a person to part with his
property against his will,” any actual or perceived threat of imminent bodily
injury will satisfy this element of [robbery].
Howard,
333 S.W.3d at 138 (internal citations omitted).
As
for the culpable mental state, “[a] person acts knowingly, or with knowledge,
with respect to a result of his conduct when he is aware that his conduct is
reasonably certain to cause the result.”  Tex. Penal Code Ann. § 6.03(b)
(West 2011); Howard, 333 S.W.3d at 139 (recognizing that when the jury
could have found the appellant guilty for either culpable mental state, “we
need only address the less-culpable mental state of knowingly”).  Therefore, robbery-by-placing-in-fear
requires “that the defendant is aware that his conduct is reasonably certain to
place someone in fear, and that someone actually is placed in fear.”  Howard,
333 S.W.3d at 140.  That is, any actual or perceived threat of imminent bodily
injury will satisfy this element “[s]o long as the defendant’s actions are ‘of
such nature as in reason and common experience is likely to induce a person to
part with his property against his will.’”  Id. at 138 (quoting Cranford
v. State, 377 S.W.2d 957, 958 (Tex. Crim. App. 1964)).
C.  Analysis
Ross
argues that the evidence “[a]t most” shows an attempted theft but is
insufficient to show that he intentionally or knowingly threatened Hernandez
with imminent bodily injury or death or that he intentionally or knowingly did
an act that placed Hernandez in fear of bodily injury or death.  He complains
that the focus here is not on the victim’s subjective fear but on whether he
committed an act that he intended or knew would cause Phillips or Hernandez to
believe that he was going to hurt or kill them.
The record,
as set out above, reflects that Hernandez repeatedly refused to give Ross the
money, that Hernandez said that during the encounter she was afraid of imminent
injury and felt threatened, and that Hernandez repeatedly tried to have someone
call 9-1-1.  The trier of fact had the responsibility to weigh this evidence in
light of Hernandez’s other testimony that Ross never produced a weapon and that
she was angry because she had been robbed at gunpoint the week before.  See
Tex. Code Crim. Proc. Ann. art. 38.04; Brown, 270 S.W.3d at 568.  Furthermore,
Phillips and Officer Tabor described Hernandez’s shaken and tearful demeanor
immediately after the robbery, and Detective Sullivan stated that around an
hour later, Hernandez was still visibly distraught.  Based on the record before
us, we conclude that the jury’s inference that Hernandez was placed in fear was
reasonable based on the cumulative force of all the evidence.  See Hooper,
214 S.W.3d at 16–17; see also Burton v. State, 230 S.W.3d 846, 853 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (concluding that appellant’s informing
teller that this is a “holdup” and demanding money reasonably placed the teller
in fear of bodily injury).
Further,
with regard to whether there was sufficient evidence that Ross was aware that
his conduct was reasonably certain to place Hernandez in fear, the record
reflects that when Ross interacted with Hernandez, he whispered, was wearing
sunglasses and a hat, and kept his hands in his pockets.  While Hernandez said
that she could tell that Ross did not have a weapon in his pockets, this does
not negate that Ross had concealed his face behind sunglasses inside the store and
concealed his hands in his pockets, actions that the jury could have concluded indicated
Ross’s awareness that his actions were reasonably certain to put Hernandez in
fear that he was trying to hide his identity or a weapon.  See Howard,
333 S.W.3d at 138 (recognizing that inquiry’s focus is on the defendant’s conduct).
The jury could have chosen to believe Hernandez that Ross told her to give him
the money and that he was “not playing” and could have concluded that, based on
Ross’s demand and his assurance that he was serious, Ross knew with reasonable
certainly that his actions would place Hernandez in fear of imminent bodily
injury or death.  See id.; Hooper, 214 S.W.3d at 16–17.  Therefore,
viewing all of the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have found beyond a reasonable
doubt that Ross was aware that his conduct was reasonably certain to place
Hernandez in fear and that Hernandez was actually placed in fear.  See Jackson,
443 U.S. at 319, 99 S. Ct. at 2789; Howard, 333 S.W.3d at 137–38; Isassi,
330 S.W.3d at 638.  We overrule Ross’s first issue.
IV.  Closing
Argument
In his
second and third issues, Ross contends the trial court erred by allowing the prosecutor
to argue during the State’s closing argument that (1) the only issue was
whether Hernandez was “in fear,” arguing that this was a gross
oversimplification of the legal issue and in conflict with the jury charge, and
(2) Ross put Hernandez “in fear,” arguing that this presented an incorrect
statement of law because it failed to include a reference to imminent bodily
injury.
The prosecutor
began her closing argument by commenting that “[t]he only issue in this case is
whether or not Maria Hernandez was in fear.  It’s not about if he had a
weapon.  It’s not about if he told her he would kill her.”  After Ross objected
and the trial court overruled his objection, the prosecutor explained that
Hernandez “thought he could have grabbed her.  She thought he could have come
over the counter.  She was afraid he would perform bodily injury on her.”  And
during the State’s rebuttal argument, the prosecutor said, “His intentional acts,
his words, his body language, the way he said it, placed her in fear, and he
was trying to get the money.  That is a robbery.”  Ross objected and complained
that the full element is “placed her in fear of imminent bodily injury and
death, not merely in fear,” even though the prosecutor had already clarified
moments earlier that the “fear” must be “fear of bodily injury or death.”  The trial
court overruled Ross’s objection.
While
it is error for the State to present a statement of law that is contrary to
that presented in the jury charge, it is not error for the State to quote or
paraphrase the jury charge.  Whiting v. State, 797 S.W.2d 45, 48 (Tex.
Crim. App. 1990).  Because the prosecutor clarified both times that the fear to
which she referred was fear of imminent bodily injury, we cannot say that the
State presented a statement of the law that was contrary to the law presented
in the jury charge.  See id.  Accordingly, we overrule Ross’s second and
third issues.
V.  Conclusion
Having
overruled each of Ross’s issues, we affirm the trial court’s judgment.

BOB MCCOY
JUSTICE

PANEL:
WALKER,
MCCOY, and GABRIEL, JJ.

GABRIEL,
J., filed a concurring opinion.

DO
NOT PUBLISH
Tex.
R. App. P. 47.2(b)

DELIVERED:  August 23, 2012

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00163-CR

John Paul Ross

APPELLANT

V.

The
  State of Texas

STATE

----------
FROM THE 396th
District Court OF Tarrant COUNTY
----------
CONCURRING
MEMORANDUM OPINION[6]
----------
          A
robber can be ineffective at robbery and his victim can be uncooperative to the
point of foolish obstinacy but under the appropriate standard of review, a
robbery conviction will be, and properly should be, upheld.  In this case,
Appellant’s actions, placed in context with the surrounding circumstances, were
sufficient to place a reasonable person in Hernandez’s circumstances in fear of
imminent bodily injury.  A threat need not be explicitly voiced but can be
communicated by a person’s actions.  McGowan v. State, 664 S.W.2d 355,
357 (Tex. Crim. App. 1984); Donoho v. State, 39 S.W.3d 324, 329 (Tex.
App.––Fort Worth 2001, pet. ref’d) (op. on reh’g).  The critical inquiry is
whether the accused acted in such a manner as would, under the circumstances,
portend an immediate threat to a person of reasonable sensibility.  See
Olivas v. State, 203 S.W.3d 341, 346 (Tex. Crim. App. 2006).
          It
has long been held that the party being robbed need not be “scared” to the
extent that he is hysterical.  Horn v. State, 89 Tex. Crim. 220, 222,
230 S.W. 693, 694 (Tex. Crim. App. 1921).  If under the circumstances and
conditions surrounding the transaction he has a reasonable belief that he may
suffer injury unless he does comply with the robber’s request, the “fear”
required by the law is present.  Id.  “The fear must arise from the
conduct of the accused however, rather than the mere temperamental timidity of
the victim.”  Cranford v. State, 377 S.W.2d 957, 959 (Tex. Crim. App.
1964). A robber cannot escape conviction simply because his victim is
dangerously unyielding.
          Here,
Appellant was clearly focused on placing Hernandez in fear to obtain property
that did not belong to him and Hernandez testified that she was placed in
fear.  She may have not acted reasonably given the circumstances, but because
the test is whether the defendant’s actions are “of such nature as in reason
and common experience is likely to induce a person to part with his property
against his will,” because that was a question properly resolved by the jury,
and because evidence in the record support’s the jury’s resolution of that
issue, the conviction stands.  See Howard v. State, 333 S.W.3d 137, 138
(Tex. Crim. App. 2011); Wilmeth v. State, 808 S.W.2d 703, 706 (Tex.
App.––Tyler 1991, no pet.).

LEE GABRIEL
JUSTICE

DELIVERED:  August 23, 2012

[1]See Tex. R. App. P. 47.4.

[2]Hernandez said that the
item was some kind of oil but that it was not from CVS.

[3]Hernandez also initially
testified that Ross had told her to do so “or else” but then said that she did
not remember him saying that.  On cross-examination, she acknowledged that immediately
after the incident, she did not mention to detectives that Ross had said “or
else.”

[4]The trial court admitted
the CVS surveillance video during Hernandez’s testimony and allowed the State
to publish it to the jury.

[5]Fort Worth Police
Detective Kyle Sullivan testified that when he interviewed Hernandez around an
hour after the incident, she was still visibly distraught.

[6]See Tex. R. App. P. 47.4.


NO. 07-09-0082-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 30, 2009

______________________________

APPARAJAN GANESAN, APPELLANT

V.

MALCOLM L. CARTER, ET AL., APPELLEE

_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 093372-00-A; HONORABLE HAL MINER, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

On February 24, 2009, the clerk of this court received a copy of a “Request to the [trial] court to rescind its order and reinstate the case and stay all proceedings or in the alternate a Notice of Appeal” filed on behalf of appellant Apparajan Ganesan.   By letter from this Court dated March 3, 2009, we advised Ganesan that the “filing fee in the amount of $175.00 ha[d] not been paid.  Failure to pay the filing fee within ten (10) days from the date of this notice may result in a dismissal.  Tex. R. App. P. 42.3(c).”
Tex. R. App. P.
 5.

Ganesan has not paid the fee as directed nor has he filed an affidavit of indigence.
See

Tex. R. App. P.

20.1.  Additionally, this court received a file marked copy of an order from the trial court granting “Defendant’s Motion to Set Aside Order,” presumably granting Ganesan’s requested relief.  Accordingly, this appeal is dismissed.
Tex. R. App. P
. 42.3.

Mackey K. Hancock

          Justice


537 U.S. 1232
DOE, AS NEXT FRIEND OF DOE, A MINORv.ROSEVILLE COMMUNITY SCHOOLS ET AL.
No. 02-974.
Supreme Court of United States.
March 3, 2003.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.

2
C. A. 6th Cir. Certiorari denied. Reported below: 296 F. 3d 431.


UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH STILWELL,
Plaintiff-Appellant,

v.                                                                    No. 99-7090

CONCECO, Medical Contractor,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-99-1094-AM)

Submitted: February 29, 2000

Decided: May 2, 2000

Before MICHAEL and TRAXLER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.

_________________________________________________________________

COUNSEL

Joseph Stilwell, Appellant Pro Se.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________
OPINION

PER CURIAM:

Joseph Stilwell appeals the district court order summarily dismiss-
ing his civil rights complaint under 28 U.S.C.A.§ 1915A(b)(1) (West
Supp. 1999), for failing to state a claim upon which relief can be
granted. Stilwell, an inmate at the Mecklenburg Correctional Center,
brought a complaint concerning the medical treatment he had
received for a hernia.1 Because we find that Stilwell alleged sufficient
facts to state a claim that the two doctors were deliberately indifferent
to his medical needs, we vacate that part of the order dismissing Stil-
well's complaint against those two physicians and we remand for fur-
ther proceedings. We affirm that part of the order dismissing
Stilwell's complaint against Conceco.

This court reviews de novo a dismissal for failing to state a claim.
See Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
"[A] complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief." Huds-
peth v. Figgins, 584 F.2d 1345, 1347 (4th Cir. 1978). The allegations
in the complaint must be taken as true and viewed in the light most
favorable to the plaintiff. See Mylan Labs., Inc., 7 F.3d at 1134. A dis-
missal for failing to state a claim is appropriate only in "limited cir-
cumstances." Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324,
325 (4th Cir. 1989) (considering a dismissal under Rule 12(b)(6)).
Furthermore, courts are instructed to construe pro se complaints liber-
ally. See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977).

At this stage of the proceedings, we take as true the allegations in
the complaint. Stilwell alleged that he was seen and released from the
_________________________________________________________________
1 Conceco, the company providing medical services at the institution,
was the only defendant listed on the district court docket. Stilwell named
Drs. Wray and Stern in that part of the complaint where he named the
Defendants and made allegations against both doctors. We find that
Wray and Stern should have been considered Defendants. See Haines v.
Kerner, 404 U.S. 519, 520 (1972). On remand, the caption should be
modified to reflect that Wray and Stern are Defendants.

                     2
emergency room of a local hospital for complaints relating to a her-
nia. According to Stilwell, the emergency room physician recom-
mended "elective surgery." Back at the prison, Stilwell was seen by
Dr. Wray. Stilwell claimed that he complained to Wray of swelling
in the groin area and severe pain. Despite these complaints, Wray
stated that "there should be no problem or pain and that [Stilwell's]
situation was not an emergency." Stilwell alleged that his condition
worsened. Specifically, he alleged that the swelling increased, blood
began to appear in his stools, and the severe pain persisted. After
some time, Stilwell was seen by Dr. Stern, who did not consider Stil-
well's complaints to be life threatening and prescribed Tylenol for
pain and inflamation. Stilwell also alleged that Stern indicated that he
would schedule Stilwell for surgery but never did. Stilwell claimed
that he received "inadequate medical treatment (Malpractice)."

Courts are obligated to construe the complaint as asserting "any
and all legal claims that its factual allegations can fairly be thought
to support." Martin v. Gentile, 849 F.2d 863, 868 (4th Cir. 1988).
Although Stilwell did not mention the Eighth Amendment or deliber-
ate indifference in his complaint, we find that he alleged sufficient
facts that, if proven, may support an Eighth Amendment violation.
See id. 849 F.2d at 868 (failing to make specific reference to Fourth
Amendment was not fatal to arrestee's claim of police brutality
because the alleged facts support such a claim).

In order for Stilwell to state a claim for violation of the Eighth
Amendment's prohibition against cruel and unusual punishment in the
context of the denial of proper medical treatment, he must allege facts
that show the Defendants acted with deliberate indifference to his
serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104
(1976). We find that for § 1915A purposes, Stilwell alleged sufficient
facts to show that he had serious medical needs. 2 We also find that
it is not "beyond doubt" that Stilwell can prove no set of facts in sup-
port of a claim that Wray and Stern were deliberately indifferent to
his medical needs. See Hudspeth, 584 F.2d at 1347.
_________________________________________________________________

2 We express no opinion as to the ultimate merits of Stilwell's com-
plaint.

                    3
With regard to Defendant Conceco, we find that Stilwell failed to
allege any facts that might lead to the conclusion that Conceco was
responsible for his medical treatment. The fact that Wray and Stern
worked for Conceco is insufficient. See Monell v. Department of Soc.
Servs., 436 U.S. 658, 691 (1978) (respondeat superior is not applica-
ble to municipalities in § 1983 actions).

We vacate the district court's order to the extent that it dismissed
Stilwell's claims against Drs. Wray and Stern, and remand for further
proceedings as to those Defendants. We affirm that part of the order
that dismissed Stilwell's claim against Conceco. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and oral argument would
not aid the decisional process.

AFFIRMED IN PART, VACATED AND REMANDED IN PART

                    4


        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

980
CA 13-00372
PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, AND VALENTINO, JJ.

CONLEY & TIBBITTS PROPERTIES, LLC,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

LEATHERSTOCKING COOPERATIVE INSURANCE COMPANY,
DEFENDANT-RESPONDENT.

GUSTAVE J. DETRAGLIA, JR., UTICA, FOR PLAINTIFF-APPELLANT.

GOZIGIAN, WASHBURN & CLINTON, COOPERSTOWN (E. W. GARO GOZIGIAN OF
COUNSEL), FOR DEFENDANT-RESPONDENT.

     Appeal from an order of the Supreme Court, Oneida County (David
A. Murad, J.), entered July 11, 2012. The order denied the motion of
plaintiff for summary judgment, granted the cross motion of defendant
for summary judgment and dismissed the amended complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this breach of contract action arising from a
dispute over insurance coverage, plaintiff appeals from an order that
denied its motion for summary judgment and granted defendant’s cross
motion for summary judgment dismissing the amended complaint. We
affirm. Plaintiff obtained insurance from defendant to cover a rental
property (hereafter, building) that it owns in Oneida County.
Although the policy covered losses caused by, inter alia, fire, it
contained an exclusion for losses or increased costs resulting
directly or indirectly from “enforcement of any code, ordinance or law
regulating the . . . repair . . . of a building,” irrespective of “any
other cause or event that contributes concurrently or in any sequence
to the loss.”

     While the policy was in effect, a fire damaged the building.
Plaster had been disturbed while the fire was being extinguished, and
a state code required under such circumstances that an asbestos survey
be completed before any further action could be taken with respect to
the building. The survey indicated that asbestos was present, and
plaintiff obtained an estimate for the cost of removing the asbestos.
Although defendant reimbursed plaintiff for all other parts of its
claim, it denied coverage for the cost of asbestos removal. Plaintiff
thereafter commenced this action seeking “the full amount of the
building damages and remediation of asbestos.”
                                 -2-                          980
                                                        CA 13-00372

     “ ‘Where[, as here,] the provisions of an insurance contract are
clear and unambiguous, they must be enforced as written’ ” (Oot v Home
Ins. Co. of Ind., 244 AD2d 62, 66). Affording the unambiguous terms
in the instant insurance contract their plain and ordinary meaning
(see White v Continental Cas. Co., 9 NY3d 264, 267), we conclude that
defendant established its entitlement to judgment as a matter of law
by establishing that the policy does not provide coverage for the
increased costs sought by plaintiff (see generally Zuckerman v City of
New York, 49 NY2d 557, 562). Pursuant to the terms of the contract
exclusion, no coverage exists for increased costs caused by the
enforcement of the state code at issue here, “irrespective of any
other concurrent or subsequent contributing cause or event” (Lattimore
Rd. Surgicenter, Inc. v Merchants Group, Inc., 71 AD3d 1379, 1380).

Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court


537 U.S. 849
JACKSONv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION.
No. 01-10558.
Supreme Court of United States.
October 7, 2002.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

2
C. A. 5th Cir. Certiorari denied.


           Case: 15-13930   Date Filed: 05/23/2016   Page: 1 of 5

                                                     [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-13930
                        Non-Argument Calendar
                      ________________________

                       Agency No. A088-076-315

DONG XUBAO,

                                                                      Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                       ________________________

                             (May 23, 2016)

Before WILLIAM PRYOR, MARTIN and FAY, Circuit Judges.

PER CURIAM:
              Case: 15-13930     Date Filed: 05/23/2016    Page: 2 of 5

      Xu Bao Dong seeks review of a decision by the Board of Immigration

Appeals (“BIA”) affirming the immigration judge’s (“IJ”) denial of his motion to

reopen removal proceedings. On appeal, Dong argues that the BIA and IJ abused

their discretion by denying his motion to reopen based on the finding that he failed

to establish changed conditions for members of unsanctioned Christian churches in

China. After careful review, we deny the petition.

                                          I.

      We review the denial of a motion to reopen an immigration petition for an

abuse of discretion, determining only whether the BIA exercised its discretion in

an arbitrary or capricious manner. Jiang v. U.S. Atty. Gen., 568 F.3d 1252, 1256

(11th Cir. 2009). We review only the BIA’s decision unless the BIA has expressly

adopted the IJ’s decision, which it did not do in this case. Id.

      An alien may file only one motion to reopen removal proceedings, and it

must be filed no later than 90 days after the final administrative decision. 8 C.F.R.

§ 1003.23(b)(1). However, these limitations do not apply when: (1) an alien files a

motion to reopen that seeks asylum or the withholding of removal where the

alien’s life or freedom would be threatened or based on the Convention Against

Torture; (2) the motion is predicated on “changed country conditions”; and (3) the

changed conditions are material and could not have been discovered at the time of

the removal proceedings. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

                                           2
               Case: 15-13930     Date Filed: 05/23/2016    Page: 3 of 5

§ 1003.23(b)(4)(i). “An alien who attempts to show that the evidence is material

bears a heavy burden and must present evidence that demonstrates that, if the

proceedings were opened, the new evidence would likely change the result in the

case.” Jiang, 568 F.3d at 1256–57. “An alien cannot circumvent the requirement

of changed country conditions by demonstrating only a change in [his] personal

circumstances.” Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009)

(per curiam). Even if a motion to reopen is timely, it can be denied because of a

failure to show prima facie eligibility for the relief sought, failure to introduce

previously unavailable material evidence, or because the alien is not entitled to a

further exercise of discretion. I.N.S. v. Abudu, 485 U.S. 94, 104–05, 108 S. Ct.

904, 912 (1988).

                                           II.

      Dong, a native and citizen of China, entered the United States without

inspection in 2009. The Department of Homeland Security (DHS) charged Dong

with being removable as “an alien present in the United States without being

admitted or paroled.” Dong appeared in immigration court without counsel on

June 2, 2009, and stated that he was afraid of being persecuted upon returning to

China due to his membership in an underground Christian church. The IJ informed

him that he might be eligible for asylum or withholding of removal and granted

him 28 days to prepare his application. Dong appeared in court on June 30, 2009,

                                           3
              Case: 15-13930     Date Filed: 05/23/2016   Page: 4 of 5

but did not submit an application for relief from removal. The IJ found that Dong

was removable and that he had abandoned his right to seek asylum. After Dong

declined to take voluntary departure, the court ordered that he be removed to

China.

      On November 20, 2014, Dong filed a counseled motion to reopen based on a

change in country conditions in China. Dong conceded that the filing occurred

well after 90 days from the final administrative decision, but argued that the time

limit did not apply because he was applying for asylum or withholding of removal

based on changed country conditions in China. He alleged that the persecution of

Christians had worsened and that his recent baptism would make him a target. The

IJ denied the motion, finding that Dong did not meet his burden of establishing a

change in country conditions since 2009.

      The BIA did not abuse its discretion by affirming the IJ’s denial of Dong’s

motion to reopen based on a finding that he did not show changed country

conditions. To support his claim that persecution worsened in China between 2009

and 2014, Dong attached a letter from Jiang Jian Nan, a friend and unsanctioned

church member in China. The letter, dated October 30, 2014, stated: “Due to the

fact that at an earlier time, our church was often persecuted by the police, and on

top of that, the cult organization ‘Almighty God’s’ homicide case, police have

been persecuting us even more.” However, the letter does not establish changed

                                           4
              Case: 15-13930       Date Filed: 05/23/2016   Page: 5 of 5

country conditions; instead, the letter describes the government’s activities

regarding one specific church. Beyond that, the letter’s statements about ongoing

persecution establish a continuation of country conditions rather than a change.

      Dong also attached copies of the State Department’s Religious Freedom

Reports from 2009 and 2013 to prove changed country conditions. However, the

reports show that conditions largely remained the same. In both reports, the

amount of official interference with unsanctioned churches varied widely

depending on location. The 2013 report noted that “some house church members”

felt that they had “more freedom than in the past to conduct religious services,” as

long as they did so in private. In his motion to reopen, Dong argued that his faith

requires that he proselytize, making the requirement to remain private a particular

burden on his religious freedom. However, the reports indicate no change in

country conditions in this regard since three members of a house church received

one-year retraining-through-labor sentences for “illegal proselytizing” in 2008,

prior to Dong’s initial hearing.

      Because Dong failed to show materially changed country conditions, his

motion was untimely and he was not entitled to reopen his removal proceedings.

The BIA did not abuse its discretion.

      PETITION DENIED.

                                           5


588 F.2d 826
Evansv.Fortner
No. 78-2689
United States Court of Appeals, Fifth Circuit
12/19/78

1
S.D.Fla.

2
REVERSED***

***
 Opinion contains citation(s) or special notations


62 N.Y.2d 324 (1984)
In the Matter of Grand Jury Subpoena Served Upon Bekins Record Storage Co., Inc. Petitioner a et al., Appellants; Robert M. Morgenthau, as District Attorney of New York County, Respondent.
Court of Appeals of the State of New York.
Argued May 8, 1984.
Decided June 12, 1984.
Andrew M. Lawler, Adam B. Gilbert, Milton S. Gould, Andrea B. Feller and Anne T. Vitale for appellants.
Robert M. Morgenthau, District Attorney (Debora K. Grobman and Amyjane Rettew of counsel), respondent pro se.
Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
*326Chief Judge COOKE.
A client cannot assert the attorney-client privilege as to documents in the lawyer's possession if they were not *327 prepared for litigation or for the purpose of seeking or imparting legal advice and they are not otherwise subject to a privilege against disclosure. The mere circumstance that the documents were revealed in confidence to a lawyer does not of itself transform the papers into privileged communications. Thus, with the exception of one document, the courts below correctly refused to quash the Grand Jury subpoena as to the documents now before this court.
In 1982, a New York County Grand Jury was impaneled to investigate allegations of fraud in the negotiation of multimillion dollar loans made by a major New York bank. Among the targets of the Grand Jury's investigation were two individuals, identified here as petitioners "A" and "B". The Grand Jury eventually issued a subpoena to Bekins Record Storage Co., which was the repository of files of a law firm, identified here as "C & D," which had represented the petitioners. The subpoena directed the production of all files relating to the firm's representation of petitioners A and B.
The law firm and the individuals were notified of the subpoena and given an opportunity to review the files before they were examined by the Grand Jury or persons in respondent's office. Petitioners moved to quash the subpoena, asserting that the papers were variously immune from disclosure as attorney's work product, as protected by the attorney-client privilege, or as subject to the Fifth Amendment protection against self-incrimination. While the matter was pending, the parties attempted to work out their differences, which resulted in petitioners' withdrawal of their objections to a large number of documents.
The remaining papers were submitted to Supreme Court for an in camera examination. After this review, petitioners' motion was granted as to the documents in 19 files and the remainder were ordered disclosed. Petitioners appealed, focusing on 18 documents only. The Appellate Division quashed the subpoena as to two documents and otherwise affirmed.
On this appeal, petitioners have further restricted their opposition to disclosure to 12 documents. Eight of the *328 documents are assertedly protected from disclosure because, if they were still in the clients' possession, their surrender would implicate the Fifth Amendment protection against self-incrimination. The remainder are claimed to be exempt from disclosure under the attorney-client privilege.
Petitioners' first argument derives from the general rule that documents, which would be protected from disclosure while in a client's possession, will not be subject to release if they are transferred to a lawyer under circumstances giving rise to an attorney-client relationship (see Fisher v United States, 425 US 391, 403-405; Matter of Vanderbilt [Rosner  Hickey], 57 N.Y.2d 66, 76; 3 Jones, Evidence [6th ed], § 21:16, p 789; McCormick, Evidence [2d ed], § 89, pp 184-185; 8 Wigmore, Evidence [McNaughton rev, 1961], § 2307, pp 591-594). Petitioners claim that the contents of Document Nos. 17, 93, 95, 99, 102, 103, 104, and 152 would tend to incriminate them and thus are privileged, and, by virtue of the documents having been passed to their attorney in confidence for legal advice, this privilege may be asserted by the C & D law firm.
Petitioners assert only their Federal right against self-incrimination. The Supreme Court has recently ruled that this right does not extend to the contents of business papers that were not created under government compulsion (United States v Doe, 465 US ___, 104 S Ct 1237). Of course, we are bound by that interpretation and, hence, petitioners' Fifth Amendment claim must fail.
In so ruling, this court is aware of the concern that responding to a subpoena and authenticating documents may itself be compelled, incriminating testimony. That, however, is essentially a factual determination (see id., 465 US, at p ___, 104 S Ct, at pp 1242-1243; Fisher v United States, 425 US 391, 410, supra; People v Copicotto, 50 N.Y.2d 222, 228-229). Except for one conclusory comment in an affidavit describing certain documents that "the statements below may have the effect of authenticating certain documents," nothing in the record reflects that petitioners raised the claim that merely responding to the subpoena would involve a violation of the Fifth Amendment. Thus, were the issue argued here by petitioners, it would be *329 deemed unproven or, alternatively, resolved against them as an affirmed finding of fact. No other ground for holding the documents privileged in petitioners' hands having been presented, the motion to quash as to these first eight documents was properly denied as no greater protection could be obtained by turning the documents over to their attorney.
As to the remaining four documents, petitioners claim these are communications protected by the attorney-client privilege. The essence of that privilege is that "evidence of a confidential communication made between the attorney or his employee and the client in the course of professional employment" shall not be disclosed without the client's permission (CPLR 4503, subd [a]). The communication must be made for the purpose of obtaining legal advice and directed to an attorney who has been consulted for that purpose (see Matter of Priest v Hennessy, 51 N.Y.2d 62, 68-69; People v Belge, 59 AD2d 307, 308-309). Conversely, one who seeks out an attorney for business or personal advice may not assert a privilege as to those communications (see People v Belge, supra; 3 Jones, Evidence [6th ed], § 21:10; McCormick, Evidence [2d ed], § 88, pp 179-181).
The disposition as to two of the documents before the court is arrived at readily. There is an affirmed finding of fact, which has record support, that the information in Document No. 36 was conveyed to an attorney at C & D law firm while he was acting in a capacity as a commercial consultant. Similarly, there is such an affirmed finding that Document No. 148 was a communication unrelated to legal advice. As such, these are not communications made to the lawyer in the course of his "professional employment" and fall outside the scope of the privilege.
Document No. 98 is a contract executed by petitioners on behalf of two corporations. Supreme Court declined to hold this and others privileged on the ground that "an executed legal document purports to establish rights or to impose liabilities enforceable in the public domain", so that "[t]he parties * * * have waived any continued expectation of confidentiality with respect to the contents thereof" (118 Misc 2d 173, 184). This is an intriguing concept that this *330 court need not reach, for the absence of any privilege can be determined according to settled principles.
Petitioners contend that Document No. 98 is privileged because it was negotiated in confidence with their mutual attorney at C & D law firm and the contract has never been revealed to outsiders. Although superficially attractive, this contention overlooks a fundamental point. A completed contract is a communication between the contracting parties  the clients. Whatever privilege may attach to a party's discussions with the attorney during negotiations (see Root v Wright, 84 N.Y. 72, 76), the contract itself is not a confidential communication made by client to attorney and cannot come within the privilege.
Document No. 121 is a letter from petitioner A to his attorney, relating the results of settlement negotiations that the client had been pursuing. This letter, which has not been revealed outside the attorney-client relationship, is the classic situation of the discussion by a person of a matter under litigation with his or her attorney. This document, therefore, should be protected from disclosure.
Accordingly, the order of the Appellate Division should be modified by quashing the subpoena as to Document No. 121 and, except as so modified, affirmed, with costs to respondent.
Order modified in accordance with the opinion herein and, as so modified, affirmed, with costs to respondent.


243 F.Supp.2d 1339 (2003)
OMAR, By and Through his next friend, Kevin CANNON, Plaintiff,
v.
Joan LINDSEY, Gloria Babcock, Barbara Holmes, Doris Malave, Cindy Morales, Raul Moringlane, Jr., Bruce Rowley, and Janice Yahnke, Defendants.
No. 6:02CV1063-ORL-19KRS.
United States District Court, M.D. Florida, Orlando Division.
January 14, 2003.
*1341 Roy D. Wasson, Law Office of Roy D. Wasson, Miami, FL, Karen A. Gievers, Karen A. Gievers, P.A., Tallahassee, FL, for Plaintiff.
Ronald L. Harrop, Peter N. Smith, Gurney & Handley, P.A., Orlando, FL, for Defendants.

ORDER
FAWSETT, District Judge.
This case was considered by the Court on the following:
1. Defendants' Joan Lindsey, Gloria Babcock, Barbara Holmes, Doris Malave, Cindy Morales, Raul Moringlane, Jr., Bruce Rowley and Janice Yahnke Motion to Dismiss Plaintiffs Amended Complaint. Doc. No. 22;

*1342 2. Memorandum of Law in Support of Motion of Defendants Joan Lindsey, Gloria Babcock, Barbara Holmes, Doris Malave, Raul Moringlane, Jr., Bruce Rowley and Janice Yahnke to Dismiss Plaintiffs Amended Complaint. Doc. No. 23;
3. Plaintiff's Unopposed Motion for Enlargement of Time to respond to Defendants Motion to Dismiss. Doc. No. 26;
4. Plaintiff's Request for Oral Argument. Doc. No. 27;
5. Plaintiff's Motion in Opposition to Defendants' Motion to Dismiss Amended Complaint. Doc. No. 28.

Background
In his lengthy complaint, Plaintiff, a minor child, alleges that at age fourteen months he was placed in inappropriate foster care by Defendants, all of whom were at all relevant times employees of the State of Florida's Department of Children and Families ("DCAF"). He also alleges that Defendants permitted him to be adopted by an abusive parent. He claims that Defendants' gross dereliction of duty as officers of the state resulted in a childhood of unremitting and intense abuse, often what can only be described as outright torture. Indeed, the complaint depicts plainly criminal maltreatment, from beatings to the unconscionable use of tear gas on children. Plaintiff has brought suit against Defendants in their individual capacities under the fourteenth amendment, arguing that they collectively violated his constitutional right to reasonably safe foster and adoptive care.

Standard of Review
For the purposes of a motion to dismiss, the Court must view the allegations of the complaint in the light most favorable to Plaintiff, consider the allegations of the complaint as true, and accept all reasonable inferences therefrom. Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir.1994); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Furthermore, the Court must limit its consideration to the pleadings and written instruments attached as exhibits thereto. Fed R. Civ. P. 10(c); GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir.1993). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Analysis

1. Qualified Immunity
Defendants, all of whom are being sued in their individual capacities, raise the defense of qualified immunity. They aver that Plaintiff had no "clearly established" right to be free of the sort of abuse he endured because the only relevant foster care case, Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987), concerned different, albeit similar, facts. Defendants contend, in other words, that they were on notice only that it is constitutionally wrongful to allow a foster mother to bludgeon her foster child into a permanent coma, which is what happened in Taylor. Taylor, they argue, did not forewarn them that they would be liable when, with deliberate indifference, they stood by while Plaintiffs foster mother whipped him, starved him, left him chronically dehydrated, gassed him with mace, neglected his severe illnesses (inflicted by her abuse), tied him up like a farm animal, and forced him to live squalidly in animal filth. In raising this defense, Defendants urge the Court to give qualified immunity doctrine its most expansive possible interpretation, arguing that civil servants will be unwilling to undertake their often difficult and vital work unless they have the protection of robust immunities. Doc. No. 23, 2.
*1343 The Supreme Court has held that a qualified immunity analysis consists of two distinct strands. First, the Court must evaluate the complaint to determine if its allegations, assuming they are true, plead a cognizable violation of the constitution. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If this is answered in the affirmative, the Court pursues the second inquiry, which is to determine whether the right in question was clearly established. Ibid. This is not, however, a broad rumination on the law. Instead, it is a careful examination of the facts at hand, one that asks "whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151. See Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (stating that "the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established.").

a. Was There A Constitutional Violation?
The pleadings do allege a constitutional violation.[1] There is no question that foster children have a fourteenth amendment liberty interest in physical safety, including a freedom from the sort of shocking abuse Plaintiff endured. See Taylor at 794-795. The facts of Taylor are similar to the allegations in the instant case. County and state officials removed a toddler from her natural parents and placed her with a foster mother. While in the foster home, however, the child was subjected to such merciless abuse at the hands of her guardian that she was left comatose. The Eleventh Circuit reasoned that foster care was analogous to involuntary custody in a state mental institution, which had previously been held by the Supreme Court to be a setting that implicates the fourteenth amendment. See Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). The maltreatment of a foster child, in other words, violates his or her constitutional rights if, had the maltreatment in question occurred in a traditional custodial context such as a prison or mental facility, it would have violated an inmate's rights. According to the complaint, Plaintiff was brutalized with, inter alia, beatings, persistent malnourishment, dehydration, neglected illness, mace, and being bound. The depravity of this abuse plainly brings Plaintiffs case within the ambit of the Taylor doctrine, and the Court concludes, therefore, that the complaint satisfactorily pleads a fourteenth amendment violation.
Liability will attach, however, only if the unconstitutional injuries were proximately caused by the deliberate indifference of officials to known risks. Omissions or nonfeasance, in other words, can only be the predicates for liability if officials fail with deliberate indifference to fulfil a statutory or other duty to act. Taylor at 796. The complaint in the instant case repeatedly alleges that Defendants knew that Plaintiff was being egregiously abused and time after time did nothing to rescue him.[2] Furthermore, *1344 contrary to Defendants contention, Plaintiffs complaint does not allege mere negligence, which, Defendants correctly point out, does not offend the Constitution. Instead, it adequately pleads the elements of deliberate indifference, as enunciated by McElligott v. Foley, 182 F.3d 1248 (11th Cir.1999). Assuming the facts in Plaintiffs complaint to be true, it is beyond doubt that the deliberate indifference of Defendants to Plaintiffs continuing peril was a proximate cause of his injuries, thereby transforming his foster mother's criminal abuse into a constitutional tort for which state actors may be held liable.

b. Was The Right In Question Clearly Established?
As suggested earlier, the mere fact that Taylor v. Ledbetter establishes that foster children have a liberty interest in being free of harsh abuse does not correlatively mean, with no further analysis, that this right was "clearly established" at the time in question.[3] The Court must examine the complaint's factual allegations and determine whether reasonable officers in the position of Defendants would have understood that their conduct violated a clearly established right.
Defendants assert that they are entitled to qualified immunity unless the allegations in the instant case are essentially indistinguishable from the facts of Taylor. They contend that Eleventh Circuit decisional law has repeatedly emphasized that a government actor does not have adequate notice that her conduct is wrongful unless precedent with an identical factpattern has unambiguously declared it to be so. Doc. No. 23, pp. 7-13. Unsurprisingly, this stringent test was satisfied only in the rarest of circumstances, and § 1983 litigants in the Eleventh Circuit have generally found qualified immunity to be a nearly insuperable obstacle.
This, however, is no longer the law. Last spring, the Supreme Court handed down a decision that clarifies how a court is to determine whether a particular right was "clearly established" for the purposes of a qualified immunity analysis. In Hope v. Peter, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002), the Supreme Court overruled the Eleventh Circuit, holding that its exacting qualified immunity doctrine was too strict. In Hope, an Alabama prisoner sued three prison guards in their individual capacities, alleging that they violated his eighth amendment right to be free of cruel and unusual punishment when they left him handcuffed to a metal pole for hours with neither water nor respite. Even though it concluded that this abhorrent maltreatment indeed violated the eighth amendment, the Eleventh Circuit granted summary judgment to the guards on the ground that they were not on notice that such conduct was unconstitutional because circuit precedent had never addressed this specific fact-pattern.
In considering this decision, the Supreme Court ruled that salient cases *1345 like Gates v. Collier, 501 F.2d 1291 (5th Cir.1974), furnished the guards with sufficient notice even though the facts in Gates were not perfectly congruent with the facts in Hope. This analytical flexibility reflects a deeper elaboration of what the Supreme Court meant in United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) when it wrote that "general statements of the law are not inherently incapable of giving fair and clear warning." The germane issue in a qualified immunity analysis, in other words, is not whether there is factually identical precedent but, instead, whether "in light of preexisting law the unlawfulness [of the alleged conduct is] apparent." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); see also Mitchell v. Forsyth, 472 U.S. 511 n. 12, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (stating that a governmental actor is not necessarily protected by qualified immunity just because the specific conduct in question has not previously been declared unconstitutional).
Plaintiffs fourteenth amendment right to be physically secure was "clearly established" at all relevant times. Taylor established the proposition that foster children have a liberty interest, pursuant to the substantive due process clause of the fourteenth amendment, in physical safety. It is absurd to argue that the facts of Taylor, with its whirlwind of violent abuse, insufficiently notified Defendants that the sort of willful indifference at the heart of this case was unconstitutional. Indeed, it taxes the powers of the Court's imagination to fathom what would violate the constitution if not deliberate indifference to the gruesome and unfettered torture of a helpless little boy like Plaintiff. Defendants, in essence, are in the awkward position of arguing that even though they were idle while Plaintiff was subjected to obscene abuse, including being maced and starved, they would have stepped in had the mother begun to pound him into a permanent coma because, after all, beating toddlers into a coma is what the constitution, as explicated by Taylor, prohibits.
As the Supreme Court explained in Hope, however, our constitutional jurisprudence is not so bereft of good sense and flexibility that decisions in one case do not apply under similar but nevertheless different facts in another. Assuming the factual allegations of Plaintiffs complaint to be true, the Court concludes that Plaintiff had a "clearly established" right not be brutalized the way in which he alleges he was, and, therefore, that Defendants cannot assert a defense of qualified immunity at this stage.

2. Does the Complaint Meet the Heightened Pleading Requirements of a § 1983 lawsuit?
Despite the lenience of the Federal Rules of Civil Procedure, it is axiomatic that defendants remain entitled to know exactly what claims are being brought against them. See Fed R. Civ. P. 8 & 10. Where the specter of frivolous or retaliatory litigation is high, courts sometimes impose heightened pleading requirements to ensure that potential defendants are not deterred from engaging in socially beneficial activity. Such is the case with § 1983. As Defendants point out, the Eleventh Circuit requires § 1983 plaintiffs to fulfill a higher standard of specificity in their complaints. See Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11th Cir.) (citing Arnold v. Bd. of Educ, 880 F.2d 305, 309 (11th Cir. 1989)); GJR Investments, Inc. v. County of Escambia, Florida, 132 F.3d 1359, 1367 (11th Cir. 1998) ("Some factual detail in the pleadings is necessary...in cases involving qualified immunity, where [the Court] must determine whether a defendant's actions violated a clearly established right.").
*1346 While mindful of this standard, the Court finds as a matter of law that Plaintiffs complaint satisfactorily pleads what is required. Defendants argue that Plaintiffs complaint evinces three defects that courts have repeatedly condemned. First, Defendants contend that Plaintiff simply alleges the violation of general or abstract constitutional rights. Doc. No. 23, p. 13. This, however, is not true. Plaintiff specifically alleges that each Defendant violated his fourteenth amendment liberty interest, as articulated by Taylor, to have a physically secure environment while in foster care. Second, Defendants claim that Plaintiffs conclusory allegations "render it nearly impossible for the district court to conduct the `fact-sensitive' examination of controlling caselaw required by qualified immunity." Doc. No. 23, p. 14. Whatever ambiguities might arise in more complex cases, the Court did not encounter any inordinate problems in determining that the allegations of the instant case fell within the compass of Taylor. Finally, Defendants argue that Plaintiffs "vague and conclusory allegations render nearly impossible the task of assessing how the qualified immunity defense applies to each individual defendant, as the district court is required to do." Ibid. Given that the constitutional claim against each Defendant is framed as a separate count, the Court was able to ascertain the nature of each claim and evaluate whether its allegations were sufficient to overcome the qualified immunity threshold. Upon careful consideration, the Court concludes that each count alleges a cognizable constitutional violation of a clearly established right under the substantive due process clause of the fourteenth amendment.

3. Has the Statute of Limitations Expired?
The applicable statute of limitations in a § 1983 lawsuit is the four-year Florida state statute of limitations for personal injuries. See Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (stating that state statutes of limitations for personal injuries govern § 1983); Baker v. Gulf & Western Industries, Inc., 850 F.2d 1480, 1482 (11th Cir.1988) (stating that Fla. Stat. Ann. § 95.11(3) provides for a four-year limitations period for personal injuries). Defendants argue that virtually all of the allegedly unconstitutional conduct in the complaint occurred between 1989 and 1991, well outside the scope of the four-year period. As with all statutes of limitations, however, this one is subject to various exceptions, which toll its running. The salient question, therefore, is whether any applicable tolling provision applies.
It would be premature to dismiss the complaint because the applicable statute of limitations has run. While it is proper to grant a Rule 12(b)(6) motion if noncompliance with the statute of limitations is apparent on the face of the complaint, such is not the case here. See, e.g. Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 (3d Cir.1978). Both parties set forth fact-intensive reasons why the motion to dismiss on the basis of the statute of limitations should be granted or denied. Plaintiff argues that he was only recently aware that Defendants are responsible for his injuries, and that the relevant statute of limitations was thereby tolled until he made this discovery. Plaintiff also argues that Defendants concealment of their nonfeasance hampered the ability of Plaintiff to learn the full truth of what happened to him. Defendants, on the other hand, argue that Plaintiff ceased to be in their custody once he was adopted in the early 1990s, thus extinguishing their constitutional responsibility for him. They also contend that none of the alleged torts were intentional, which precludes Plaintiff from invoking the expansive statute of limitations *1347 for abuse victims under Fla. Stat. Ann § 95.11(7).[4] In keeping with the standard of review, the Court concludes that the statute of limitations issue cannot be resolved at this stage of the litigation because such resolution would depend either on facts not yet in evidence or on construing factual ambiguities in the complaint in Defendants' favor, which would be inappropriate.

4. Plaintiffs Additional Motions
Plaintiff has two additional motions pending. The first requested an enlargement of time within which to respond to Defendants' motion. Doc. No. 26. This motion is denied as moot. The second requested an opportunity for oral argument. Doc. No. 27. This motion is also denied as moot.

CONCLUSION
For the foregoing reasons, the Court rules as follows:
1. Defendants motion to dismiss (Doc. No. 22) is DENIED;
2. Plaintiffs motion for an enlargement of time (Doc. No. 26) is DENIED;
3. Plaintiffs motion for oral argument (Doc. No. 27) is DENIED.
NOTES
[1]  The analysis of whether a constitutional right was violated applies to all Defendants equally. In the interest of brevity, the Court has chosen not to analyze each count against each defendant individually.
[2]  Defendants argue that Plaintiff's complaint is ambiguous with respect to when Defendants learned of the abuse, failing to state that Defendants knew of the abuse while it was occurring. While the Court agrees that this is a crucial material fact for this litigation to resolve, it is not something that Plaintiff needs to prove or allege with unreasonable specificity in his complaint. At the motion to dismiss stage, this sort of factual ambiguity, to the >extent that it even exists, must be construed in Plaintiff's favor.
[3]  Defendants suggest in their memorandum that Taylor cannot be used as the basis of a qualified immunity analysis because the Eleventh Circuit explicitly noted that its opinion does not address the applicability of a qualified immunity defense. Doc. No. 23, p. 10. It does not follow from what the appellate court wrote, however, that Taylor would have been decided differently had the defendant in that case asserted a qualified immunity defense, and, therefore, that Taylor can never be used in a case in which the defendant invokes qualified immunity. Taylor simply stands for the proposition that foster children have a fourteenth amendment liberty interest in safe and secure foster care. The question of qualified immunity is adjudicated under an entirely different line of cases.
[4]  Defendants assert that Fla. Stat. Ann. § 95.11(7), which establishes a generous statute of limitations for the victims of childhood abuse, does not apply because Plaintiff's complaint does not allege any intentional torts. Doc. No. 23, pp. 18-19. Plaintiff does not raise the question of whether this statute provides him with any shelter so the Court declines to invoke it on his behalf, other than to remark that the Court has already found that Plaintiff alleged "deliberate indifference" by Defendants to his grave predicament (without "deliberate indifference" there would be no constitutional violation). This "deliberate indifference" satisfies the state statutory definition of abuse. See Fla. Stat. Ann. § 39.01


103 Wn.2d 221 (1984)
691 P.2d 575
JOHN TELLINGHUISEN, ET AL, Respondents,
v.
KING COUNTY COUNCIL, Respondent, RICHARD TAWNEY, ET AL, Petitioners.
No. 50792-9.
The Supreme Court of Washington, Department Two.
December 6, 1984.
Durning, Webster & Lonnquist, Marvin B. Durning, and Lynn D. Weir, for petitioners.
Harris & Weiser and Virginia Hurlbut-Weiser, for respondents.
PER CURIAM:
Richard and Michael Tawney petition for review of the Court of Appeals decision which declined to *222 apply the rule stated in North St. Ass'n v. Olympia, 96 Wn.2d 359, 635 P.2d 721 (1981) to a case which arose before North Street was decided. We reverse.
John and Agnes Tellinghuisen live across the street from property owned by the Tawneys and their wives. When the Tellinghuisens complained to King County about the noise emanating from a welding shop on the Tawneys' property, the County filed an abatement action against the Tawneys. The Tawneys then applied for a rezone to change the classification of the welding shop property from residential to manufacturing.
The County Council granted the rezone request on August 3, 1981. On Monday, August 24, the Tellinghuisens filed in King County Superior Court a petition for a writ of review of the Council's action. Process was served on King County and the County Council that day. The next day, the Tellinghuisens served copies of their pleadings on attorney Marvin Durning. Durning had represented the Tawneys and the welding shop (a corporation leasing the property from the Tawneys) in the rezone proceedings. Richard and Michael Tawney were not personally served until September 1. Neither the Tawneys' marital communities nor the welding shop were named as defendants in the Tellinghuisens' pleadings.
The trial court agreed with the defendants that the Tellinghuisens had failed to timely join all necessary parties. The court also denied the Tellinghuisens' oral motion to amend their complaint to join the marital communities and the welding shop. Accordingly, the trial court dismissed the application for a writ of review.
While the Tellinghuisens' appeal was pending, this court held that an amendment changing a party defendant will not relate back to the date of the original pleading, under CR 15(c), if the original omission was due to inexcusable neglect. North St. Ass'n v. Olympia, supra at 368. The Court of Appeals in the present case acknowledged North Street, but believed that it "had the effect of amending [CR 15(c)] without prior notice." Tellinghuisen v. King Cy. *223 Coun., 38 Wn. App. 24, 30, 684 P.2d 748 (1984). The Court of Appeals thus concluded that it would be unfair to apply the holding in North Street in the present case. Finding the remaining requirements of CR 15(c) to be satisfied, the Court of Appeals reversed the trial court's ruling and remanded with directions to allow the Tellinghuisens' amendment and consider their application for a writ of review.
We disagree with the reasoning employed by the Court of Appeals.
Pursuant to King County Code 20.24.240, the Tellinghuisens had 20 days to file their action in the superior court. They then had, under RCW 4.16.170, "an additional 90 days to serve all necessary parties." This statute does not, however, extend the time for naming all necessary parties; any such party not named in the original timely complaint can only be added thereafter under CR 15(c). North St. Ass'n v. Olympia, supra.[1]
As we said in North Street, an amendment adding a party will relate back to the date of the original pleading if three conditions are met. First, the added party must have had notice of the original pleading, so that he will not be prejudiced by the amendment. CR 15(c)(1). Second, the added party must have had actual or constructive knowledge that, but for a mistake concerning the proper party, the action would have been brought against him. CR 15(c)(2). Finally, the plaintiff's failure to timely name the correct party cannot have been "due to inexcusable neglect." North St. Ass'n v. Olympia, supra at 368.
*224 [1] The Court of Appeals erred in characterizing this third requirement as an amendment to CR 15(c). We held in North Street that the adoption of CR 15(c) did not change prior law. North St. Ass'n v. Olympia, supra at 368 (citing Upshaw v. Equitable Life Assur. Soc'y of United States, 85 F.R.D. 674, 678 (E.D. Ark. 1980)); 3 J. Moore, Federal Practice ¶ 15.15, at 15-231 (2d ed. 1980). Accordingly, there is nothing "new" in North Street to be given prospective effect only. See South Hollywood Hills Citizens Ass'n v. King Cy., 101 Wn.2d 68, 677 P.2d 114 (1984) (applying the North Street rule to a case which arose before North Street was filed).
Considering the facts presented here, it is clear that the Tellinghuisens' failure initially to name all necessary parties is inexcusable. As in South Hollywood Hills, the identity of the omitted parties was a matter of public record. See South Hollywood Hills Citizens Ass'n v. King Cy., supra at 77. The Tellinghuisens have offered no cogent explanation for failing to name those parties.
The Court of Appeals opinion is reversed. The trial court's order dismissing the complaint is reinstated.
NOTES
[1]  In footnote 3 of its opinion, the Court of Appeals expressed the view that use of the "relation back" aspect of CR 15(c) may be "required only where amendment is sought after the 90-day [service] period has expired." Tellinghuisen v. King Cy. Coun., 38 Wn. App. 24, 27 n. 3, 684 P.2d 748 (1984). We implicitly rejected this notion in North Street. In one of the consolidated cases we decided in that opinion, the aggrieved party, like the Tellinghuisens, attempted to join a necessary party after the prescribed filing period, but within the 90-day statutory service period. We nonetheless upheld the trial court's dismissal of that action because the failure timely to join the necessary party was due to inexcusable neglect. North St. Ass'n v. Olympia, supra at 362, 367-69.


                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

JESSE HAUGHT,                        NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D15-4045

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed November 4, 2015.

An appeal from an order of the Circuit Court for Clay County.
John H. Skinner, Judge.

Jesse Haught, pro se, Appellant.

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

PER CURIAM.

      AFFIRMED.

RAY, OSTERHAUS, and WINOKUR, JJ., CONCUR.


700 F.2d 496
25 Wage & Hour Cas. (BN 1233, 96 Lab.Cas.  P 34,330,30 Cont.Cas.Fed. (CCH)  70,784
Guillermo A. SAAVEDRA, individually and doing business asSaagan Moving & Storage Company, Plaintiff-Appellant,v.Raymond DONOVAN, Secretary of Labor, et al., Defendants-Appellees.
No. 82-4130.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Jan. 10, 1982.Decided Feb. 4, 1983.

Jerry K. Cimmet, San Francisco, Cal., for plaintiff-appellant.
John F. Barg, San Francisco, Cal., for defendants-appellees.
Appeal from the United States District Court for the Northern District of California.
Before DUNIWAY, WRIGHT, and CHOY, Circuit Judges:
EUGENE A. WRIGHT, Circuit Judge:

1
The Service Contract Act of 1965, 41 U.S.C. Secs. 351-358 (the Act), mandates minimum wages and fringe benefits for employees engaged in government contract work.  Its purpose is to protect employees of government contractors.  Before the Act, the federal government had been "subsidizing" substandard levels of compensation by awarding contracts to those who were able to bid low by paying less.   American Federation of Government Employees, Local 1668 v. Dunn, 561 F.2d 1310, 1312 (9th Cir.1977).

2
The Act requires the Secretary of Labor (Secretary) to determine wages and benefits by job category and geographic area ("wage determinations").  Contracts subject to the Act must incorporate the appropriate wage determinations.  41 U.S.C. Sec. 351(a), (b).

3
Plaintiff-appellant Saavedra, dba Saagan Moving and Storage Co., was awarded two government contracts which were subject to the Act.  He is not proficient in English and did not fully understand the contracts or even read them thoroughly.  He based his bid for the first contract on an irrelevant set of figures occurring early in that document.  Being unaware that he had to provide fringe benefits, he failed to do so.

4
The Department of Labor brought an enforcement proceeding.  The Administrative Law Judge (ALJ) concluded that Saavedra was bound by and had violated the wage determination and must recompense the affected employees.  But he thought the contracts confusing, sloppy, and rife with mistakes.  Provisions that he thought ambiguous as to computation of amounts due he interpreted in Saavedra's favor.

5
Both parties excepted to the ALJ's decision, which triggered reconsideration by an administrator.  He set aside the ALJ's resolutions of ambiguities in Saavedra's favor and chose the Department's methods of computation.  The Secretary adopted the administrator's decision.

6
Saavedra challenged the final decision in district court where summary judgment was granted to the defendants.  Saavedra appeals.

I. Standards of Review

7
Proceedings to enforce labor standards of the Act are on the record.  See 29 C.F.R. Secs. 6.10, 6.14.  These proceedings are governed generally by the Administrative Procedure Act (APA).  See 5 U.S.C. Secs. 556, 557, 706.

A. Review Under the APA

8
Under the APA's judicial review provisions, a court must set aside agency decisions that are "unsupported by substantial evidence" or "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."    Id. Sec. 706(2)(A), (E).

9
The standard does not change merely because the final decision rejects the ALJ's determinations.   Loomis Courier Service, Inc. v. NLRB, 595 F.2d 491, 495 (9th Cir.1979).  The decision for court review is that of the agency, here the administrator's decision adopted by the Secretary.  The court does not review the ALJ's decision, which is merely part of the record.   Penasquitos Village v. NLRB, 565 F.2d 1074, 1076 (9th Cir.1977).

10
But the court must take into account the "whole record."    Id.;  5 U.S.C. Sec. 706.  Because the ALJ's factual findings are part of that record, contrary agency findings are given less weight than they would otherwise receive.   Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 468, 95 L.Ed. 456 (1951);  Nelson v. Interior Board of Land Appeals, 598 F.2d 531, 534 (9th Cir.1979).  This principle has greatest force, however, with credibility determinations from demeanor evidence, not at issue here.

11
B. Special Standards for Service Contract Proceedings

12
The APA treatment is modified by laws governing enforcement proceedings under the Act.  The Secretary's findings of fact, if supported by a preponderance of the evidence, are conclusive on the courts.  41 U.C.S. Secs. 39, 353(a).

13
A regulation binding on the agency provides:  "With respect to [the ALJ's] findings of fact, the Administrator shall modify or set aside only those findings that are clearly erroneous."    29 C.F.R. Sec. 6.14.  Findings are clearly erroneous if, though there may be evidence to support them, the reviewer has the definite conviction they are mistaken.   Thomas v. SS Santa Mercedes, 572 F.2d 1331, 1335 (9th Cir.1978).

II. Application of the Standards of Review

14
Because wage determinations are creatures of contract and statute, this case presents a mix of contract law and administrative law.  The ALJ followed contract law.

15
Federal law controls when interpreting a government contract.  In fashioning federal rules, guidance is gained from general principles for interpreting contracts.   United States v. Seckinger, 397 U.S. 203, 209-11, 90 S.Ct. 880, 884-85, 25 L.Ed.2d 224 (1970).  Once the ALJ decided that provisions in the contracts affecting the amount Saavedra owed were ambiguous, he applied the "contra proferentem" rule of construction, interpreting ambiguities against the drafter, the government.  See id. at 210, 216, 90 S.Ct. at 884, 887.

16
The administrator concluded the contra proferentem rule was inapposite and applied administrative law.  He reasoned that, because Saavedra did not know of these terms when he submitted his bid and had not paid even the lesser amount, he had not relied on his interpretation and was not prejudiced by the imperfections.   See, e.g., Dale Ingram, Inc. v. United States, 475 F.2d 1177, 1185 (Ct.Cl.1973).

17
He agreed with the government's argument that ambiguities should not be interpreted against Saavedra's employees, the intended beneficiaries of the provisions and the Act.  Accord, Restatement (Second) of Contracts Sec. 207 (1979) (when interpreting contracts, a meaning that serves the public interest is preferred).

18
He reasoned that the contracts incorporated the Act, which mandates use of the Secretary's wage determination.  Saavedra had a legal duty to conform to the actual wage determination, not just a contractual duty to conform to plausible interpretations of contract provisions embodying the wage determination.

19
Administrative precedent imposed on Saavedra a duty to clarify any uncertainties about the wage determination.  The ALJ found these cases were not meaningfully available to the public and in fairness Saavedra could not be held to them.  Saavedra's attorney submitted affidavits that he could not find the precedents published.

20
The administrator set aside the ALJ's finding of unavailability, saying that the Department's decisions were published and properly indexed in regular services.  He gave published citations for some relied on.

21
Moreover, a published regulation specifies that if doubts arise about interpreting the wage determination, the Department should be consulted.  29 C.F.R. Sec. 4.101.  Saavedra is charged with such knowledge.

A. Ambiguities in Method of Computation

22
The wage determination specifies minimum time an employee must work to qualify for each benefit.  It was drafted with a view to employees who work exclusively on government contracts.  But Saavedra's employees did commercial work, too.

23
Saavedra argued that only time spent in contract work went to satisfy the minimum time requirement.  The Department argued that both contract and commercial time should be counted to establish eligibility, with the benefit prorated to reflect the percentage of time spent on contract work.

24
The parties disagreed on how to prorate the benefit.  Saavedra contended the percentage should reflect the ratio of contract time to total time worked.  The Department would use the ratio of contract time to the minimum time specified to qualify for the benefit.

25
The Department produced a 1970 opinion letter prescribing its method.  A government witness testified that the letter exemplified the Department's consistent and longstanding policy.

26
Saavedra argued that this had to be published before it could bind him and was therefore void.  The ALJ disregarded the letter.  The administrator disagreed.

27
It is well settled that an agency may announce and implement new administrative policy by adjudication.   Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1328 (9th Cir.1982).  A fortiori, it should be able to apply longstanding (though unpublished) policy in an adjudication.

28
The administrator was not obliged to rule for Saavedra simply because the policy was unpublished.   Cf. Legal Aid Society v. Brennan, 608 F.2d 1319, 1341 n. 43 (9th Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980) (Department of Labor Technical Guidance Memorandum entitled to weight because it reflected the agency's construction, even if not binding because unpublished).  Courts accord deference to an agency's reasonable and conforming interpretation of its own regulation.   Pacific Coast Medical Enterprises v. Harris, 633 F.2d 123, 131 (9th Cir.1980).

29
The opinion letter parallels the Department's published methods, which count commercial time in computing eligibility for annual vacation benefits.  29 C.F.R. Sec. 4.171.   Cf. Skidmore v. Swift, 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944) (weight to be given to Department's bulletin interpreting statutory labor standards depends in part on consistency with its other pronouncements).  The published examples are explicitly said to be illustrative and not exhaustive.  29 C.F.R. Sec. 4.101.

30
Saavedra characterizes the Department's methods as arbitrary and capricious.  But with his method of prorating, an employee with the same contract hours as others would get a lower benefit if he put in more commercial hours.  Adopting that method would have been arbitrary and capricious.

B. Ambiguity Because of Illegible Number

31
According to the ALJ, the monthly health and welfare benefit in the first contract was ambiguous because the figure was poorly reproduced.  Though the amount was supposed to be $88.35, the ALJ computed Saavedra's liability as $38.35 under the contra proferentem rule.

32
The administrator set aside this part of the ALJ's decision.  He stated that the disputed 8 was obviously not the same as the 3 in the same figure.

33
Whether an ambiguity exists is a question of law.   United States v. Sacramento Municipal Utility District, 652 F.2d 1341, 1343-44 (9th Cir.1981).  The administrator concluded there was no ambiguity here.  This he was free to do.  His "clearly erroneous" standard for reversing the ALJ's factual findings is inapplicable.  Even if the existence of an ambiguity seems a factual question, the administrator reasonably thought the ALJ's finding clearly erroneous.

34
He buttressed his reversal by alternatively resolving the legal issues raised if an ambiguity did exist.  See supra.    He added that the contract would violate the wage determination if read as did the ALJ.  The latter's interpretation resulted in an illegal, subminimum health and welfare benefit.  An interpretation giving a lawful meaning is preferred.  Restatement (Second) of Contracts Sec. 203(a) (1979).

CONCLUSION

35
We too are not favorably impressed with the government's obfuscatory practices in these contracts.  Wage determinations have significant financial consequences for government contractors.  The Department, having received numerous inquiries about the same provisions that confused Saavedra, was aware of the problems.  A government agency should set forth clearly its legal requirements.  This one is capable of doing so, as it demonstrated by eliminating, in the second contract, the ambiguity about whether to count noncontract time when computing eligibility for the health and welfare benefit.

36
Straightforward notice would foster the purposes of the Act by promoting understanding of, planning for, and expeditious compliance with wage and benefit provisions.  It would also save the cost to the public of enforcement proceedings and litigation against unwitting violators.

37
However, a businessman is presumed to assent to the terms of his contract whether or not he knows of them.  Restatement (Second) of Contracts Sec. 23 & comment b, Sec. 157 & comment b.

38
Allowing one to avoid contractual obligations by failing to read or understand them would undermine reliance on written instruments and, in this case, disadvantage blameless employees.  Saavedra had a duty to read the contracts.  He owed that to himself, as he was bound by their terms, read or unread, and by the extra-contractual wage determination.  His failure to read prevented him from even discovering alleged ambiguities, much less detrimentally relying on his interpretation of them or clarifying them before contracting.

39
The Secretary's decision was not arbitrary nor capricious, was in accordance with law, and was supported by substantial evidence.  Most of his reversals of the ALJ were on legal issues.  His conclusions on these conformed to the Act's purpose and to departmental policy, published and unpublished.  Reversals of factual findings were limited to those he reasonably considered clearly erroneous.

40
Affirmed.