     Case: 10-30124 Document: 00511373197 Page: 1 Date Filed: 02/04/2011

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 4, 2011
                                     No. 10-30124
                                   Summary Calendar                         Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BARRY ROBINSON,

                                                   Defendant-Appellant

                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:05-CR-223-4

Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Barry Robinson appeals from the judgment of revocation of his supervised
release and the sentence imposed upon revocation. He was arrested twice by
local authorities and charged with the state offenses of attempted theft and
monetary instrument abuse. He contends that the district court improperly
relied on a ground not alleged in the rule to revoke, namely, his lying to the
authorities about the episodes underlying his arrests and state charges, thus
depriving him of notice of the grounds for revocation. He argues that the district

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-30124 Document: 00511373197 Page: 2 Date Filed: 02/04/2011

                                  No. 10-30124

court made no finding as to whether he committed the attempted theft offense,
though he acknowledges that the district court found that he committed abuse
of a monetary instrument.
      Robinson did not raise his arguments in the district court. Our review is
under the plain error standard. See United States v. Magwood, 445 F.3d 826,
828 (5th Cir. 2006).
      Robinson’s contentions hinge on his construction of the district court’s
remarks at his revocation hearing.        The district court’s commentary about
Robinson’s lying did not suggest that the revocation was based on lying; rather,
the commentary was relevant to whether Robinson was guilty of the state
offenses. See United States v. Villareal, 324 F.3d 319, 325 (5th Cir. 2003).
Moreover, the district court commented on both of the state offenses sufficiently
to make an implicit finding of guilt as to both state offenses, after hearing the
testimony of a police officer and a deputy sheriff and after reading the probation
officer’s report on Robinson’s arrests.
      Robinson suggests for the first time in his reply brief that the dismissal of
the state charges against him means that the district court relied on his lying
as the reason for the revocation of his supervised release. This court generally
will not consider issues raised for the first time in a reply brief. United States
v. Rodriguez, 602 F.3d 346, 360 (5th Cir. 2010). We do not consider Robinson’s
contention.
      Robinson has failed to demonstrate that the district court relied on lying
as a separate ground for revocation or that the district court made no finding as
to the attempted theft charge in Jefferson Parish. He has failed to demonstrate
any error, plain or otherwise. See Magwood, 445 F.3d at 828.
      AFFIRMED.

                                          2


                                                                                ACCEPTED
                                                                                12-15-00017-CR
                                                                                TWELFTH COURT OF APPEALS
                                                                                TYLER, TEXAS
                                                                                10/5/2015 9:53:23 PM
                                                                                Pam Estes
                                                                                CLERK

                                                                                FILED IN
                                                                             12th COURT OF APPEALS
                                                                                TYLER, TEXAS
                                                                             10/5/2015 9:53:23 PM
                                                                                PAM ESTES
                                                                                Clerk

                               CAUSE NUMBER 12-15-00017-CR

ARTHUR JAMES WILLIAMS                                        IN THE

VS.                                                          TWELFTH JUDICIAL DISTRICT

THE STATE OF TEXAS                                           COURT OF APPEALS

                                 APPELLANT'S MOTION
                             FOR LEAVE TO FILE LATE BRIEF

TO THE HONORABLE JUDGES OF SAID COURT:

       COMES NOW Appellant Arthur James Williams, by and through Colin D. McFall,

Attorney of Record in the above numbered and styled cause, and for good cause moves the

instant Court grant Appellant's Motion for Leave to File Late Brief. In support of said motion,

Appellant would respectfully show this Honorable Court the following:

                                                 I.

       Pursuant to Rule 10.5(b) (1) (A), Texas Rules of Appellate Procedure, Appellant's Brief

was due on or before the 5th day of October 2015.

                                                II.

       Pursuant to Rule 10.5(b) (1) (B), Texas Rules of Appellate Procedure, Appellant

respectfully request a fourteen (14) day extension of time to file Appellant's Brief. If granted,

Appellant's Brief would be due on the 5th day of October 2015.
                                                                               ZOO 6Z: T IItii;-( 0-10 I
                                                 III.

       Pursuant to Rule 10.5(b) (1) (C), Texas Rules of Appellate Procedure, Counsel relies on

the following facts to reasonably explain the need for the requested extension:

       Counsel is engaged in the multijurisdictional private practice of law. Counsel engages in

the practice of family law, juvenile law, criminal defense and quasi criminal proceedings.

Counsel operates two offices in the East Texas area. Counsel submits his work load is high.

Counsel needs the requested extension of time to effectively represent Appellant. Appellant is

entitled to the effective representation of Counsel.

                                                IV.

       Pursuant to Rule 10.5(6) (1) (D), Texas Rules of Appellate Procedure, this is Appellant's

first Motion for Leave to File Late Brief.

                                                 V.

       Pursuant to Rule 10.1(5), Texas Rules of Appellate Procedure, Counsel was not able to

consult with opposing counsel, to confirm the instant motion is unopposed.

                                                VI.

       WHEREFORE, PREMISES CONSIDERED, Appellant Arthur James Williams, prays

the Court grant Appellant's Motion for Leave to File Late Brief, and grant Counsel an additional

fourteen (14) days to file Appellant's Brief.

RESPECTFULLY SUBMITTED,

                                                        513 North Church Street
                                                        Palestine, Texas 75801-2962
COLIN D.        ALL                                     Telephone: 903-723-1923
Attorney at Law                                         Facsimile:     903-723-0269
Texas Bar Number: 24027498                              Email: cmcfall@mcfall-law-office.com
                                                                               £00 6Z: I I I g'- 01
                                                                                T&':. 1:61
                                CERTIFICATE OF SERVICE

       I, Colin D. McFall, Attorney of Record for the above styled Appellant, hereby certify

service of a true and correct copy of the above and foregoing document upon Anderson County

Assistant Criminal District Attorney, Scott Holden, at sholden@co.anderson.tx.us, by email

transmission, on the 5th day of October 2015.

RESPECTFULLY SUBMITTED,

                                                   513 North Church Street
                                                   Palestine, Texas 75801-2962
 OLIN D. M FALL                                    Telephone:     903-723-1923
Attorney at Law                                    Facsimile:     903-723-0269
Texas Bar Number: 24027498                         Email: cmcfall@mcfall-law-office.com
                                                                               $ 1)0ZcgiOT
                                                                                t700 6Z:1I
                                CAUSE NUMBER 12-15-00017-CR

   ARTHUR JAMES WILLIAMS                       §              IN THE

   VS.                                         §              TWELFTH JUDICIAL DISTRICT

   THE STATE OF TEXAS                          §              COURT OF APPEALS

                                            AFFIDAVIT

          BEFORE ME, the undersigned notary, on this day, personally appeared Colin D. McFall,

   a person whose identity is known to me. After I administered an oath to Colin D. McFall, upon

   his oath, he said:

          "My name is Colin D. McFall. I am over eighteen (18) years of age, of sound mind and

   capable of making this Affidavit. I am the Attorney of Record for Arthur James Williams, in the

   above numbered and styled cause. I have read the Appellant's Motion for Leave to File Late

   Brief and swear the facts relied on are within my personal knowledge.

          SWORN to and SUBSCRIBED before me by Colin D. McFall on the 5th day of

   October 2015.
                                                                 lg P ogo,       FALCON ASHLEY PIERCE
                                                             ,.•
                                                              ot• .ae
                                                              (5               Notary Public, State of Texas
                                                                                My Commission Expires
                                                               %%%%%%%%%%%%%        August 01, 2018
7-Notary Public in d for the State of Texas

   My commission expires: F-


810 F.2d 540
Julio Garcia RIVERA, Petitioner-Appellant,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondents-Appellees.
No. 85-4100.
United States Court of Appeals,Fifth Circuit.
Feb. 23, 1987.

Michael J. Jacobsen, Centro Para Inmigrantes, Houston, Tex., Cheryl Schechter, Houston, Tex., for petitioner-appellant.
David H. Lambert, Dist. Director INS, New Orleans, La., Paul B. O'Neill, Dist. Director INS, Gary T. Goldman, Houston, Tex., for other interested parties.
Robert L. Bombough, Director, Office of Immigration Litigation, Civ. Div., Richard M. Evans, Washington, D.C., for respondents-appellees.
Petition for Review of an Order of the Immigration and Naturalization Service.
Before CLARK, Chief Judge, WILLIAMS and DAVIS, Circuit Judges.
ON PETITION FOR REHEARING
(791 F.2d 1202, 5th Cir.1986, June 13, 1986)
W. EUGENE DAVIS, Circuit Judge:

1
Upon reconsideration and for reasons that follow, we are persuaded that the Board's interpretation of the Immigration and Naturalization Act is not unreasonable;  given the "great deference" we must accord the Board of Immigration Appeals' (BIA) interpretation of that Act, we accept its interpretation and affirm its order.  See Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).

2
In our original opinion, we defined the narrow issue presented for decision in this case:  Whether Garcia was a lawful permanent resident of this country in August 1984, when he sought section 212(c) relief.   Rivera v. INS, 791 F.2d 1202, 1204 (5th Cir.1986).  The answer to this question depends upon when, following the immigration judge's order that Rivera be deported, Rivera's status changed so that he was no longer a lawful resident of the United States.

3
The BIA in this case relied upon In Re Lok, where it considered four possible steps in the deportation process when lawful residence might terminate:  (1) when the immigration judge ordered Rivera's deportation;  (2) when the deportation order was affirmed by the BIA or otherwise became administratively final;  (3) when the BIA is affirmed by the court of appeals or when the time for appeal of the BIA order expires;  or (4) upon execution of the deportation order.  In Re Lok, 18 I. & N. Dec. 101, 105 (BIA 1981).

4
The Board carefully considered all of these possible answers.  Because of the statutory obligation of the BIA to make a de novo review of the immigation judge's findings of fact and conclusions of law, it concluded that the alien's lawful status should not terminate upon the initial deportation order.  Id. at 106.  The BIA found it incongruous, however, that an alien under an administratively final deportation order could continue to maintain lawful resident status.  Id.  The Board concluded that the alien should not be considered a lawful resident of the United States while he appealed the adverse administrative determination to the court of appeals.  The Board reasoned that:

5
Authority to adjudicate an alien's deportability is vested primarily in the Attorney General and his delegates, the immigration judge and the Board....  In contrast to the Board's de novo review powers, the appellate court's scope of review is limited.  Assuming no error of law or unfairness in procedure, the court must affirm the administrative order of deportation if the order is supported by reasonable, substantial, and probative evidence of record.

6
To hold that an alien under a final administrative order of deportation remains a lawful permanent resident throughout the judicial proceedings would encourage spurious appeals to the courts, made solely for the purpose of accumulating more time toward eligibility for section 212(c) relief.  The termination of lawful permanent resident status upon the entry of a final administrative order of deportation, on the other hand, would result in no ultimate prejudice to the alien.  In those relatively rare instances where the court determines that the Board erred, as a matter of fact or law, with respect to its deportability finding, reversal of the Board's order nullifies the order and restores the alien's lawful permanent resident status.

7
Id. at 107 (citations omitted).

8
The Lok opinion, which the Board followed in the instant case, reflects careful consideration of the solution to the problem of when lawful residence in this country should terminate.  We find nothing unreasonable about the BIA's rationale or its conclusion.

9
Moreover, we see nothing unfair about terminating lawful resident status after an adverse decision by the initial factfinder and an affirmance by the BIA following de novo review.  Acceptance of appellant's position that he should retain lawful resident status through the judicial appeal would create more work for an already beleaguered Board.  Requiring the alien to assert his claim for discretionary relief from deportation while his deportation order is on appeal to the Board permits the Board to consider both claims together;  this in turn prevents the alien from stringing out his claims and delaying the ultimate disposition of his case.

10
Upon reconsideration we are persuaded that terminating lawful status when the deportation order becomes administratively final will not prejudice the alien.  Contrary to the assertion in our initial opinion, the applicable regulations do not require an alien to admit deportability as a condition to applying for section 212(c) relief:  "An application ... shall be made only during the [deportation] hearing and shall not be held to constitute a concession of alienage or deportability in any case in which the [alien] does not admit his alienage or deportability."    8 C.F.R. Sec. 242.17(e) (1986).

11
Also, we are now convinced that no "Catch-22" is created for the alien by the rule adopted in Lok and in this case.  The regulations allow the alien to apply for section 212(c) relief and fully reserve all of his arguments that he is not deportable.  Litigants in both criminal and civil proceedings in this country are frequently required to join alternative claims and defenses in a single proceeding and lay jurors routinely decide such claims.  No reason is suggested why an immigration judge or the BIA cannot fairly consider an alien's alternate claim for section 212(c) relief.

12
In sum, the conclusion of the BIA as to when the alien's lawful resident status terminates is a sensible one.  It gives the alien ample time to assert his claim for section 212(c) relief and prevents him from litigating his various claims in a piecemeal fashion.  The rule the appellant would have us adopt encourages an alien to wait until after he appeals the deportation order to the court of appeals before filing his petition for section 212(c) relief.  This would require the immigration judge and the BIA to again review the alien's case to rule on the claim for section 212(c) relief.  Such a rule would allow the alien to string out his claims, unnecessarily increase the Board's work load and delay the ultimate disposition of the case.

13
Upon reconsideration, we conclude that the BIA's interpretation of the Act is reasonable and affirm its order.  To the extent our previous opinion is in conflict with the above, it is vacated.

14
AFFIRMED.

JERRE S. WILLIAMS, Circuit Judge, dissenting:

15
The reversal of the decision in this case, 791 F.2d 1202 (5th Cir.1986), upon rehearing constitutes a remarkably passive acceptance of the oppressive whim of a governmental bureau, the Immigration and Naturalization Service.  The decision now rendered by the majority of the panel is to me inescapably wrong, and the reasons are quite clear.  The decision:

16
1.   Flies directly in the face of the well reasoned authority of the only circuit which has made controlling holdings.

17
2. Permits the INS to rely wholly upon one of its own decisions which is demonstrably not the law.

18
3.   Upholds an administrative decision that defies the established jurisprudential principles of the rights to rehearing and appeals of administrative decisions.

19
4. Forces a lawful resident alien to plead for mercy as deportable before he is deportable.

20
Each of these conclusions will be discussed in turn.  First, appellant Rivera was administratively adjudicated on May 11, 1984, as subject to deportation order after review by the Board of Immigration Appeals of the INS.  His appeal on the merits to this Court was dismissed in January 1985.  In the meantime, however, Rivera had applied for discretionary relief from deportation under Sec. 212(c) of the Immigration and Nationality Act of 1952, 8 U.S.C. Sec. 1182(c).  That statutory provision requires for eligibility lawful and permanent resident status and also lawful unrelinquished domicile of seven consecutive years.  Rivera had met the seven year requirement.

21
The Ninth Circuit in Wall v. INS, 722 F.2d 1442 (9th Cir.1984), held that the time to satisfy the seven year requirement of lawful unrelinquished domicile could continue to accumulate after a final decision of the BIA directing deportation.  While the seven year lawful domicile is conceded in this case, the Wall case is directly on point because it is obvious that the statute does not contemplate that an alien can maintain lawful domicile for purposes of continuing to accumulate the seven year residence requirement while the deportation case is being appealed from the BIA, but at the same time would not be a lawful resident appealing an order of deportation once the seven years is achieved.1

22
Second, the Court defers to a reliance by the INS upon its decision in Matter of Lok, 18 I & N, Dec. 101 (BIA 1981).  It is quite true that the Lok decision holds that the deportability order of the BIA bars the discretionary remedy based upon Sec. 212(c) even though the issue of deportability is still pending on appeal in the courts.  The trouble with reliance upon the Lok case is it is not the law.  The case was appealed to the Court of Appeals.  While it was affirmed, 681 F.2d 107 (2d Cir.1982), it was affirmed on the very narrow ground that Lok had become deportable after the decision of the BIA because he did not enter a timely appeal of that adjudication of deportability to the Court.  Thus, the decision in the Lok case as it stands in the law is completely compatible with the position urged in this dissent since Rivera had appealed the BIA decision.  Lok had waived further challenge to deportability, and the Court of Appeals relied upon that fact in affirming the decision of the BIA.2   Rivera had not waived further challenge.

23
Third, the holding of the INS countenanced by the majority opinion is jurisprudentially flawed in two serious respects.  In the first place there is a right to request a rehearing before the BIA, a right which under the regulations had not been terminated in this case.  Yet, the BIA denied a rehearing on the ground that Rivera no longer had the status to ask for it because he had been adjudicated deportable and was no longer a lawful resident.  This is precisely as if a court on petition for rehearing denied it not on the merits but on the ground that the petitioner no longer had the right to petition for a rehearing jurisdictionally because he had lost the original decision in the court.  Lawbooks will be searched in vain for any justification for this remarkable conclusion.

24
Further, the INS magnanimously states that if it is reversed on appeal by the Court then its prior decision which it is relying upon as final would no longer be final.  The statute gives the alien the right to appeal the decision of the BIA to the Court of Appeals.  It is quite true that it is not a full de novo review.  But it is also quite true, as we well know, that administrative decisions are with some regularity reversed on appeal to the courts.  It is at least of doubtful validity to treat a change of status as fait accompli while the alien is pursuing his statutory right to appeal that change of status to the first judicial body to consider it.

25
Finally, we are told that Rivera and the similarly situated alien is not prejudiced because the INS encourages the filing of discretionary relief under 212(c) before the agency makes its decision as to deportability.  The claim is that this is not a trap for the unwary.  The simple answer is that at least it was in this case.  Rivera was barred from asking for discretionary relief although the record indicates he has at least a reasonably good case for the claim.  He was barred because he did not claim discretionary relief as a deportable alien before he was adjudicated a deportable alien by the INS.  He was trapped in part, at least, because he already had his lawful seven year domiciliary status, and most litigants in these cases do not yet have the seven year domicile when the BIA declares them deportable.

26
To the claim that finality is necessarily given to the BIA decision because of the delays occasioned by appeals, we should point out that no great national peril is demonstrable from the fact that this Court disposed of Rivera's appeal in just about seven months after the BIA decision, as to an alien who had been a lawful resident and domiciliary for over seven years.  It is also well to stress again that appeal is a matter of right and that this Court possesses sanctions and summary procedures to deal with frivolous appeals.

27
How the dignity and majesty of the law is vindicated by mistreating this alien who had been a lawful permanent resident is beyond my comprehension.  He was certainly entitled to be considered for discretionary relief and that was all he asked.  Perhaps it gives the petty tyrant a warm glow to cut off the alien's right simply to ask for discretionary relief provided by the Congress while he is appealing a decision that he is deportable.  It gives me the cold shivers.  There are no words in any statute anywhere that call for this result, and the panel opinion cites none.  It is a source of keen regret to me that we do not insist that the INS respect Congress' obvious wishes that aliens who are lawfully in the United States be treated with respect, and, having met the statutory lawful residence and domicile requirement, be entitled to ask for discretionary relief at any time before they are finally adjudicated otherwise.  I dissent.

1
 In Marti-Xiques v. INS, 713 F.2d 1511 (11th Cir.1983), the panel's holding was the same as that in Wall.    The Court took the case en banc and reversed, holding that an alien lost standing as lawful at the time the INS issues the show cause order, even before any hearing or appeal within the agency, 741 F.2d 350 (11th Cir.1984).  This was too much even for the INS which ignores the decision in its own regulations and administrative decisions.  No other court has so held
Dabone v. Karn, 763 F.2d 593, 595 (3rd Cir.1985), adopts the cut off date as the date of the final BIA decision, the position taken by the panel majority.  But that is an exclusion case, not a deportation case.  "The new entry stands the alien on the same footing as if it were the initial entry."

2
 In Avila-Murrieta v. INS, 762 F.2d 733 (9th Cir.1985), the Ninth Circuit agreed with the Second Circuit's decision in Lok that if the alien conceded deportability after the BIA decision he no longer could ask for discretionary relief.  In so holding the Court properly distinguished its Wall holding that lawful residence continues after the BIA decision if that decision is being appealed


           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                 August 20, 2008
                                No. 08-40018
                             Conference Calendar           Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA
                                          Plaintiff-Appellee
v.

MARVIN JOEL ESCOBAR-CARCAMO

                                          Defendant-Appellant

                  Appeal from the United States District Court
                       for the Southern District of Texas
                            USDC No. 1:07-CR-629-1

Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      The Federal Public Defender appointed to represent Marvin Joel Escobar-
Carcamo has moved for leave to withdraw and has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967). Escobar-Carcamo has filed a
response. Our independent review of the record, counsel’s brief, and Escobar-
Carcamo’s response discloses no nonfrivolous issue for appeal. Accordingly,
counsel’s motion for leave to withdraw is GRANTED, counsel is excused from
further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR.
R. 42.2.

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


43 P.3d 421 (2002)
2002 OK CIV APP 33
Daniel D. CAMPBELL, Petitioner,
v.
HUNT JB TRANSPORT SERVICES, Insurance Company of Pennsylvania and the Workers' Compensation Court, Respondents.
No. 96,757.
Court of Civil Appeals of Oklahoma, Division No. 4.
February 12, 2002.
Jamie Pitts, Lawter & Pitts, Tulsa, OK, for Petitioner.
R. Jay McAtee, Tulsa, OK, for Respondents.
Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.
*422 Opinion by RONALD J. STUBBLEFIELD, Judge:
¶ 1 The original dispute between Worker, Daniel D. Campbell, and Employer, Hunt JB Transport Services, arose over Employer's failure to provide Worker with medical treatment for a work-related injury, despite numerous demands by Worker. Worker obtained his own treatment, and after filing a compensation claim, sought repayment for medical expenses incurred. The Workers' Compensation Trial Court found Worker had sustained accidental personal injuries to various parts of his body and was temporarily totally disabled, and did order Employer to reimburse Worker for medical expenses. However, the trial court ordered that further medical treatment could be provided by Employer by a Certified Workplace Medical Plan (CWMP) physician. Worker appealed that provision regarding use of a CWMP physician to a three-judge panel, claiming that the statutory provisions providing for CWMPs were unconstitutional. The three-judge panel affirmed, and Worker now appeals to this court raising the same constitutional challenge.

STANDARD OF REVIEW
¶ 2 There are no disputed facts in this case, as the question before this court is a pure issue of law  whether 85 O.S. Supp. 2000 §§ 14(C), 14.1, 14.2 and 14.3 are special laws prohibited by Okla. Const. Art. V, § 59. "Legal questions are reviewed de novo and an appellate court has plenary, independent, and non-deferential authority to reexamine a trial court's legal rulings." Spielmann v. Hayes, 2000 OK CIV APP 44, ¶ 8, 3 P.3d 711, 713. When considering questions of constitutionality, an act of the legislature will not be declared void unless it is "clearly, palpably, and plainly inconsistent with the terms of the Constitution." Rivas v. Parkland Manor, 2000 OK 68, ¶ 6, 12 P.3d 452, 455.

DISCUSSION OF ISSUES
¶ 3 Worker argues in seven propositions of error that sections 14(C) and 14.1-14.3 are special laws which violate Article V, § 59 of the Oklahoma Constitution, and are discriminatory in their application to injured workers and have other discriminatory effects. Worker also claims that the three-judge panel erred when it denied the claim of unconstitutionality of section 14(C), but did not specifically find that each challenged statute was constitutional. We reject this latter argument, because it can be inferred from the three-judge panel order that in finding section 14(C) constitutional, the other challenged sections were also found constitutional.
¶ 4 Article V, § 59 of the Oklahoma Constitution provides that "Laws of a general nature shall have a uniform operation throughout the State, and where a general *423 law can be made applicable, no special law shall be enacted." The Oklahoma Supreme Court has defined a special law as one "where a part of the entire class of similarly affected persons is separated for different treatment." Kerley v. Uniroyal Goodrich Tire Co./Michelin N. Am., Inc., 2000 OK 62, ¶ 8, 10 P.3d 230, 233. It is clear that by enacting sections 14(C) and 14.1-14.3, the legislature has created a special class of injured workers under the Workers' Compensation Act  those who work for a company which has contracted with a CWMP. Therefore, we conclude that the laws concerning CWMPs are special laws.
¶ 5 Having determined that the statutes are special laws, the question then becomes whether the statutes are permissible special laws. Reynolds v. Porter, 1988 OK 88, ¶ 13, 760 P.2d 816, 822. Employer argues that the laws bear a rational relationship to at least one of the legislature's public policy goals of the Workers' Compensation Act  providing an employer with a mechanism to reduce its monetary costs of providing workers' compensation coverage. We agree.
¶ 6 In Rivas v. Parkland Manor, 2000 OK 68, 12 P.3d 452, the Oklahoma Supreme Court considered whether limiting permanent partial disability recovery to 100% disability was constitutional. The court stated: "The critical question is whether the [special] classification rests upon a difference which bears a reasonable relationship to any of the goals of the Workers' Compensation Act." Id. at ¶ 13, 12 P.3d at 457. The court then concluded:
"[T]he limitation clearly serves one of the specified goals of the Workers' Compensation Act. The legislature may strike a balance between the creation of a more strict liability system for the employer, while limiting the potential monetary exposure when the employer does have to pay."
Id. at ¶ 16, 12 P.3d at 457.
¶ 7 A goal of the Workers' Compensation Act is to insure that medical expenses of an employee who has suffered an on-the-job injury will be paid. As a balance to imposing liability on employers for paying those medical expenses, the legislature has sought ways to keep those expenses at a reasonable level. We find the establishment of CWMPs to be such a method of balancing benefits to employees against costs to employers.
¶ 8 Therefore, we conclude that the laws regarding CWMPs bear a reasonable relationship to the goal of the Workers' Compensation Act of limiting the cost of medical expenses incurred by employers who choose to become members of a CWMP. Therefore, sections 14(C) and 14.1-14.3 are permissible special laws which do not violate Article V, § 59 of the Oklahoma Constitution.
¶ 9 Furthermore, we find that the sections regarding CWMPs do not discriminate against those employees whose employers participate in the plan. An employee may choose to participate in the plan  in which case, he agrees to seek treatment from plan-approved doctors. If an employee chooses not to participate in the plan, the employee has the right to provide a list of physicians with whom he, or a member of his family, has had a treatment history and to be treated by such a physician, provided the physician agrees to comply with the rules, terms and conditions of the plan. 85 O.S. Supp.2000 § 14 (C)(1). For those employees who do not have a relationship with a doctor, they can simply choose to participate in the plan and have a choice of qualified doctors. If an employee is not satisfied with the quality of care he is receiving, he may change doctors with prior approval. And, he may always seek treatment from the physician of his choice and pay for the services rendered.
¶ 10 Employee hypothesizes that a person who moves here from out-of-state is unduly burdened because he might not have a previous relationship with a doctor and will be forced to see a doctor he does not know. However, we cannot think of a circumstance when such a person would not have to see a doctor he didn't know. The situation is no different than when an employee moves here from another state and becomes an employee of a company who utilizes an HMO for its health care plan, and must choose a doctor from an approved list provided by the HMO. In fact, the CWMP is less restrictive because the employee can opt out of the plan and select a family physician, even if that physician *424 is not included in the physician list provided by the plan. There is nothing unconstitutionally discriminatory in these circumstances.
¶ 11 Worker also argues that an injured employee who is treated by CWMP physicians may receive substandard care. He asserts that employees have fewer choices of physicians because medical providers choose not to participate in the plans because they are paid less per medical procedure than other physicians who are not members of a CWMP plan. Additionally, he asserts that the administrative grievance procedure puts undue delay and legal hurdles in the path of a dissatisfied injured employee. However, Worker provides no evidentiary or legal support for these claims. They are mere conjecture. "Argument without supporting authority will not be considered." Okla. Sup.Ct. R. 1.11(k)(1), 12 O.S. Supp.2000, ch. 15, app. 1; Westlake Presbyterian Church, Inc. v. Cornforth, 1996 OK CIV APP 159, ¶ 16, 940 P.2d 1208, 1211.
¶ 12 Finally, Worker, citing section 14.3B(1)(f), asserts that CWMPs can mandate the use of "aggressive medical management," arguing this allows the imposition of medical treatment and procedures against a worker's wishes. Worker fails to relate the full section language which states, in pertinent part: "The Commissioner shall not certify a plan unless the Commissioner finds that the plan . . . provides aggressive case management for injured employees and a program for early return to work." 85 O.S. Supp.2000 §§ 14.3(B)(1), 14.3(B)(1)(f) (emphasis added). This does not mean that a worker is forced to submit to medical procedures against his will. It simply means that there is a goal of rendering speedy medical treatment in order to return an injured worker to work as quickly as possible.
¶ 13 As for Worker's particular circumstances, and his claim of harm in being required to change physicians, we note that Worker did not argue that he had a previous relationship with a doctor which was severed by Employer's participation in a CWMP. In fact, Worker went to a doctor recommended by his attorney, not one recommended by a family member or other physician. We are not stating that this referral was in any way improper or a benefit to either attorney or doctor. However, this substantially weakens Worker's argument that he suffered or will suffer any harm as a consequence of not being able to continue treatment with the particular physician. Employer was ordered to reimburse Worker for all medical treatment by the physician, and the record reflects that the physician had released Worker for light duty and that his treatment was nearing completion. So it is difficult to imagine that Worker will suffer substantial detriment by changing to a plan physician. If problems do occur, grievance procedures are readily available under the Workers' Compensation Act.
¶ 14 Based on our review of the record, we do not find that 85 O.S. Supp.2000 §§ 14(C) and 14.1-14.3, are unconstitutional. Accordingly, the order of the Workers' Compensation Court is SUSTAINED.
¶ 15 REIF, C.J., and TAYLOR, P.J., concur.


35 B.R. 131 (1983)
In re BSJ TOWER ASSOCIATES, Debtor.
Bankruptcy No. B-81-00360-A.
United States Bankruptcy Court, D. Puerto Rico.
April 13, 1983.
Charles Cuprill Hernández, Ponce, P.R., for debtor.
David Freedman from O'Neill & Borges, Hato Rey, P.R., for GEPT.

OPINION AND ORDER
ANTONIO I. HERNANDEZ-RODRIGUEZ, Bankruptcy Judge.
On January 3, 1983, debtor-in-possession filed an application for appointment of appraiser nunc pro tunc and for approval of compensation. In said application debtor requests that we enter a nunc pro tunc order authorizing the appointment of Robert F. McCloskey as appraiser for BSJ Towers Inc., as of the date his services were rendered. Debtor also requests the nunc pro tunc approval by the court of disbursements by BSJ to Mr. McCloskey totalling the sum of $18,300.00. Said application has been opposed by General Electric Pension Trust ("GEPT"). Both parties have fully briefed the issue and the matter stands presently submitted for our consideration.
The parties agree on the factual background of this controversy: the appointment of the appraiser and the rendering of his services to debtor have already been performed. Mr. McCloskey was paid $18,300.00 for said services. The appointment of the appraiser, the rendering of his services and the actual compensation for services rendered was performed without this court's prior approval.
We thus address the specific issue facing us, to wit, whether to give retroactive validity to debtor's acts by issuing a nunc pro tunc order appointing Mr. McCloskey as appraiser as of the date when his services were first rendered and approving the compensation subsequently paid by debtor for such services.
*132 Analysis
There should be no doubt that the equity powers vested in this court include the authority to issue a nunc pro tunc order such as the one sought in this case. In re Hite 2 F.Supp. 536 (W.D.Pa.1932). Thus, the scope of our present analysis is properly whether we should, in the exercise of our equitable discretion, issue said order.
The applicable law in regard to the appointment of professional persons to render services for the trustee or debtor is contained in section 327(a) of the Bankruptcy Code.:
"(a) Except as otherwise provided in this section, the trustee, with the court's approval, may employ one or more attorneys, accountants, appraiser, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee's duties under this title." (Emphasis added).
11 U.S.C. section 327(a).
Rule 606 of the Bankruptcy Rules, dealing with the appraisal of property and the compensation and eligibility of appraisers, should also be taken into consideration. Such rule was applicable to Chapter X and Chapter XI proceedings under Rules 10-607 and 11-54 respectively, and at present should be interpreted together with section 327(a) of the Bankruptcy Code. Rule 606 provides in its pertinent parts:
"(a) Appraiser: Appointment and Duties. The Court shall appoint one or more competent and disinterested appraisers, unless it determines that such appointment is unnecessary. Unless the court directs otherwise, the appraiser or appraisers shall appraise all the property of the estate and shall prepare and file a report of the appraisal with the court . . . "
"(c) Compensation and Eligibility of Auctioneers and Appraisers. No auctioneers shall be employed or appraiser appointed except upon an order of the court fixing the amount or rate of compensation." (Emphasis added).
Bankruptcy Rule 606 is still applicable under the Bankruptcy Code, except that under section 327(a) of the Code, the Court now approves rather than appoint the appraiser to be employed by the trustee. See Collier, 1981 Pamphlet Edition, Part 2, p. 176.
Also applicable is Rule 2006 of the Interim Bankruptcy Rules, which provides:
"An order approving the employment of attorneys, accountants, appraisers, auctioneers, agents, or other professional persons pursuant to Rule 327 or Rule 1103 of the Bankruptcy Code shall be made only on application of the trustee or committee, stating the specific facts showing the necessity for such employment, the name of the person to be employed, the reasons for his selection, the professional services to be rendered, and to the best of the applicant's knowledge all of such person's connections with the debtor, the creditors, or any other party in interest, and their respective attorneys and accountants."
The statutory and regulatory scheme sketched above indicate, without doubt, that nunc pro tunc orders of appointment and compensation of appraisers are not to be favored. The rule is quite clear: before any services to a trustee or debtor-in-possession are rendered by a person, such services must be authorized by the court. In re Garland Corp. 8 B.R. 826, 828 (Bkrtcy. D.Mass.1981).
It is the "longstanding rule" that professional services performed for the estate or the debtor-in-possession may only be compensated by the estate if such services were authorized by the court prior to being rendered. See Collier, op. cit; In re Morton Shoe Companies, Inc., 22 B.R. 449, 450-51 (Bkrtcy.D.Mass.1982) (financial expert unauthorized by Court to render services to debtor denied compensation); In re W.F.D.R., Inc., 22 B.R. 266 (Bkrtcy.N.D.Ga.1982) (unauthorized management consultant denied compensation); In re Hydrocarbon Chemicals, Inc., 411 F.2d 203 (3rd Cir.1969) (Counsel employed without authorization by debtor's counsel denied compensation); In *133 the Matter of Hucknall Agency, Inc., 1 B.R. 125 (Bkrtcy.W.D.N.Y.1979) (accountant ordered to return to estate unauthorized payments); In re Mork, 19 B.R. 947, 948-49 (Bkrtcy.Minn.1982) (accountants denied compensation for work not authorized by Court); In re Johnson, 21 B.R. 217 (Bkrtcy. D.C.1982) (attorneys denied compensation for work not authorized by Court); In re René Press, Inc., 23 B.R. 381 (Bkrtcy.Mass. 1982) (accountant denied compensation for services rendered without the authorization of the Court and ordered to return the sum of $4,400.00 already disbursed by the estate).
Notwithstanding the above debtor insists that a nunc pro tunc order is proper in this case and cites several cases in support of this proposition. Without citing said cases in extenso we think that a reasonable formulation of the rule contained in said case law is that a nunc pro tunc order of appointment and compensation of a professional person who has rendered services to a trustee or debtor in possession may be issued in cases showing extraordinary circumstances.
Does this case present us with such "extraordinary circumstances" as to move us to exercise our equity powers? We think not.
In re Hite, 2 F.Supp. 536 (W.D.Pa.1932), the receiver appointed by the Court had filed a petition requesting the appointment of an attorney, pursuant to General Order 44 (then 11 U.S.C.A. sec. 53). The appointment was properly made by the Court. Subsequently, the receiver was elected trustee but by inadvertence failed to formally request to the court the appointment of counsel. The same attorney continued to render services for the trustee. It is significant to note the reasoning of the Court in allowing compensation to the attorney:
"Although we are in accord with the general reasoning of the referee in his opinion, wherein he explains his reason for refusing the nunc pro tunc order and allowance of compensation, we are of the opinion that his order in the instant matter is not demanded by General Order 44. It is the undoubted intent of that order that before an attorney can be appointed a proper showing must be made as to the necessity of the appointment, and the absence of disqualifying interests in the person suggested for appointment. Had the Court not passed upon the necessity of counsel and the qualifications of the attorney proposed, by order approving appointment of the attorney for the receiver, we should feel compelled to agree with the position of the referee in holding that a nunc pro tunc order would not be permissible. But the petition and affidavit contemplated by the General Order having been made, and the necessity of counsel and the qualifications of the attorney suggested having been determined by the Court, we feel that the essential requirements of the General Order have been met." (Emphasis added).
The facts recited above are very different from those in the instant case, where Debtor appointed, without the Court's approval, Mr. Robert McCloskey as BSJ's appraiser and disbursed, with no previous authorization, sums totalling $18,300.00.
A similar situation to that in In re Hite, supra, existed in the case of In the Matter of Womack, Inc., 1 B.R. 95 (Bkrtcy.D.Nev. 1979). There, unlike the present case, the Court held that while no "formal" order authorized a broker to render services to the estate, the applicant broker had always acted under the Court's constant direction and jurisdiction.
In Re Barry Yao Co., 172 F.Supp. 375 (S.D.Cal.1959), cited by debtor, is contrary to said party's contention. In that case an attorney had rendered services both on behalf of certain creditors and on behalf of the trustee. The referee had not authorized the attorney to act on behalf of the trustee. The Court held:
"It is settled that an attorney for creditors, who undertakes to act also as attorney for a receiver or trustee, must first obtain approval of the Referee in compliance with General Order 44 (11 U.S.C.A. following section 53) and, in the absence of such approval, no compensation is allowable, however valuable and beneficial *134 to the bankrupt estate that attorney's services have been." (Emphasis added).
The attorney was allowed certain compensation for services he had rendered on behalf of the creditors. Such dual function by a professional is today forbidden by section 327(a) of the Bankruptcy Code.
Debtor strongly relies in In Re King Electric Co. Inc., 19 B.R. 660, 662-63 (E.D.Va. 1982) in support of its request for a nunc pro tunc order. However, the factual situation in King differs from the one at bar.
King Electric, Inc. filed a petition in the Bankruptcy Court under Chapter 11 on April 22, 1981. The petition stated that the firm of Marks, Stokes & Harrison would act as counsel for the debtor-in-possession. However, counsel for debtor failed to formally request the Court's approval for employment until November of 1981. Thus from the outset of the bankruptcy proceedings, the Court, the creditors and the Creditor's Committee did know about the employment of counsel by the debtor.
In the instant case, debtor requested an appraisal from Mr. McCloskey on March 16, 1981. (Exhibit B-1 of Application for Appointment . . ., filed on January 3, 1983). No motion or notice requesting the approval of Mr. McCloskey as appraiser was filed. The parties do not controvert the fact that Mr. McCloskey has been paid the sum of $18,300.00 prior to any form of application or request for authorization from this court.
Debtor's application fails to show that, in any event, the services rendered were beneficial to the estate since the appraiser report was necessary in order to prepare its counterclaim and affirmative defenses in adversary Proceeding No. 81-0195. Up to this moment, Mr. McCloskey has not been presented to the Court either in the instant case or in the above mentioned adversary proceeding. Such being the case we can not divine the nature and results of Mr. McCloskey's services.
BSJ claims that the Court was aware of the work performed by Mr. McCloskey, "inasmuch it was submitted for an in chambers examination during the hearing of GEPT's application for adequate protection." (See the answer to opposition to application of January 20, at page 2). It should be noted that the issue of adequate protection was discussed before this Court on/or around December of 1982, long after the unauthorized services had been performed by Mr. McCloskey and disbursed by BSJ. An in chambers examination of said report, more than a year after the services were requested and rendered does not magically cure the original defect of having failed to apply to the Court for authorization to obtain and compensate an appraiser.
Debtor alleges that the summary nature of adversary proceeding 81-0195 compelled him to act without prior application to the court. The record reveals that on the date when Mr. McCloskey was requested to appraise debtor's property, March 16, 1981, the adversary proceeding had not yet been filed. Adversary proceeding 81-0195 (originally labeled "81-Adv. -6051") was instituted on April 14, 1981, when the complaint therein was filed by GEPT against BSJ Towers Associates in the Bankruptcy Court for the Southern District of New York. We thus fail to see how debtor was compelled by the lack of time.
There is no reason whatsoever why debtor could not have obtained the court's approval prior to hiring Mr. McCloskey. If an emergency existed then debtor should have requested said remedy on an emergency basis.
Finally, the argument of equity in debtor's application moves us no further. It is stated that the retroactive appointment of the appraiser will result in avoiding the resulting inequity to Mr. McCloskey. However, different from the cases cited by debtor, in this case the inequity is debtor's own doing:
"The only argument in favor of a nunc pro tunc order is that of hardship. But the hardship is the appellants' own making. The rule is clear, and they are charged with knowledge of it. To give heed to the argument of hardship in such circumstances would nullify the requirement *135 that the affidavit be filed before the appointment is made . . . "
In re Rogers-Pyatt Shellac Co., 51 F.2d 988 (2d Cir.1931). See also In Re Schatz Federal Bearings Co. Inc., 17 B.R. 780, 6 C.B.C. 66 (S.D.N.Y.1982).
Conclusion
The application for the appointment nunc pro tunc of Robert McCloskey as appraiser for BSJ and for retroactive approval of compensation is hereby DENIED. A hearing shall be held on May 17, 1983 at 10:00 A.M. to consider how and who shall reimburse the amounts improvidently paid by debtor in compensation for the appraiser's services.
SO ORDERED.


Abatement Order filed June 4, 2012.

                                         In The

                      Fourteenth Court of Appeals
                                     ____________

                                  NO. 14-12-00455-CV
                                    ____________

   IN THE INTEREST OF J.W.K AKA J.K., K.D.R AKA K.K, K.D.R, JR AND
                         Q.S.B., CHILDREN

                       On Appeal from the 313th District Court
                                Harris County, Texas
                         Trial Court Cause No. 2011-03425J

                               ABATEMENT ORDER

       This is an accelerated appeal from a judgment in a suit in which the termination of
the parent-child relationship is at issue (“parental termination case”). The notice of
appeal was filed May 10, 2012. Appellant has established indigence or is presumed to be
indigent. See Tex. R. App. P. 20.1(a). The reporter’s record was due within 10 days
after the notice of appeal was filed. See Tex. R. App. P. 35.1(b); 28.4(a)(1). The record
has not been filed.

       Appeals in parental termination cases and child protection cases are to be brought
to final disposition within 180 days of the date the notice of appeal is filed. See Tex. R.
Jud. Admin. 6.2(a) (eff. May 1, 2012).          The trial and appellate courts are jointly
responsible for ensuring that the appellate record is timely filed. See Tex. R. App. P.
35.3(c). The trial court must direct the court reporter to immediately commence the
preparation of the reporter’s record and must arrange for a substitute reporter, if
necessary. See Tex. R. App. P. 28.4(b)(1).

       Because the reporter’s record has not been filed timely in this accelerated appeal,
we issue the following order:

       We direct the judge of the 313th District Court to immediately conduct a hearing
at which the court reporter, appellant’s counsel, and appellee’s counsel shall participate
(a) to determine the reason for the failure to file the record; (b) to establish a date certain
when the reporter’s record will be filed, and (c) to make findings as to whether the court
reporter should be held in contempt of court for failing to file the reporter’s record timely
as ordered. We order the court to prepare a record, in the form of a reporter’s record, of
the hearing. The judge shall make findings of fact and conclusions of law, and shall
order the trial clerk to forward to this court a supplemental clerk’s record containing the
findings and conclusions. The hearing record and supplemental clerk’s record shall be
filed with the clerk of this court on or before June 14, 2012.

       The appeal is abated, treated as a closed case, and removed from this court’s active
docket. The appeal will be reinstated on this court’s active docket when the trial court’s
findings and recommendations are filed in this court. The court will also consider an
appropriate motion to reinstate the appeal filed by either party, or the court may reinstate
the appeal on its own motion.

                                       PER CURIAM


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

TIMOTHY F. MCGARRY,                 NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D15-0306

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed July 9, 2015.

An appeal from the Circuit Court for Bay County.
Michael C. Overstreet, Judge.

Timothy F. McGarry, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Charles R. McCoy, Senior Assistant
Attorney General, Tallahassee, for Appellee.

PER CURIAM.

      AFFIRMED.

LEWIS, THOMAS, and MAKAR, JJ., CONCUR.


359 F.2d 506
UNITED STATES of America, Appellant,v.BLOOMFIELD STEAMSHIP CO., Appellee.
No. 21793.
United States Court of Appeals Fifth Circuit.
April 29, 1966.
Rehearing Denied August 4, 1966.

Lawrence F. Ledebur, Alan Raywid, Attys., Dept. of Justice, Washington, D. C., Woodrow Seals, U. S. Atty., Jack Shepherd, James R. Gough, Asst. U. S. Attys., Houston, Tex., John W. Douglas, Asst. Atty. Gen., Sherman L. Cohn, Atty., Dept. of Justice, Washington, D. C., for appellant.
Robert Eikel, Eikel & Goller, Houston, Tex., for appellee.
Before TUTTLE, Chief Judge, THORNBERRY, Circuit Judge, and LYNNE, District Judge.
TUTTLE, Chief Judge:

1
This appeal complains of a decision by the trial court declaring that the appellee, Bloomfield Steamship Company, is not liable to the United States for allegedly overcharging for the ocean transportation of Government-financed grain shipments. The suit was commenced by Bloomfield's filing a complaint seeking a declaratory judgment to the effect that it was not liable to the Government. The United States filed a counter claim seeking the recovery of approximately $270,000, the amount by which rates charged the Government allegedly exceeded those charged commercial shippers for comparable service.

2
Bloomfield is a subsidized American steamship company,1 operating vessels in liner service.2 It carried a substantial number of grain shipments to Western Germany during 1958 and 1959, which were financed by the International Cooperation Administration (ICA).3 During the period involved, Bloomfield carried 192 separate parcels of bulk grain between United States Gulf ports and ports of Northern Europe. Forty-eight of these were financed by ICA under procurement authorizations issued to the Federal Republic of Germany, its agents or designees. The other 144 parcels were privately financed.

3
There were no conference agreements or tariffs fixing the freight rates for these shipments, but, instead, in each case they were separately negotiated and agreed upon between the agents for the German importers on the one hand, and the agents for the shipping line on the other. These negotiations culminated in "fixtures," or agreements as to the terms, and were reduced to written "booking notes" signed by the negotiators. Each booking note subjected the proposed shipment to ICA rules and regulations. The regulation pertinent to this litigation, 22 C.F.R. 201.7(b), provides:

4
"The rate charged by a supplier of ocean transportation services shall not exceed the prevailing rate for similar freight contracts nor the rate paid to the supplier for similar ocean transportation services by other customers similarly situated."

5
Bills of lading, issued at loading, contained similar provisions. Following the loading of ICA shipments, Bloomfield's agents billed Glaessel Shipping Corporation, agents for the cargo. Each of these shipments was then paid for with United States Government funds. Each invoice was accompanied by an executed copy of Form ICA-280, a required "Supplier's Certificate" which contained the same representation heretofore referred to:

6
"The rate indicated on the reverse of this form for the service rendered does not exceed the prevailing rate, if any, for similar services, or the rate paid to the supplier for similar services by other customers similarly situated."

7
The privately financed shipments carried by Bloomfield during this same period were negotiated in the same manner, culminating in "fixtures" and reduced to "booking notes." The Record seems to disclose, and counsel frankly conceded on oral argument, that there were no significant differences as to the nature of the cargo or other services performed by Bloomfield Steamship Company as between the ICA-financed shipments and those that were privately financed, except for the inclusion on the former of the language subjecting the ICA-financed shipments to ICA rules and regulations. The trial court found "the parties stipulated at length to data extracted from 192 ocean bills of lading covering partial shipments of bulk grain transported during the years 1958 and 1959 between United States Gulf ports and ports of Northern Europe aboard Bloomfield vessels. These stipulations clearly show that the rates for Government financed shipments were substantially higher in all cases than the rates for commercial shipments during the same time periods. (Emphasis added)."

8
Although describing the Government's position as "a compelling one," the trial court nevertheless denied recovery on a theory, advanced by Bloomfield, that the ICA regulations and the bill of lading incorporating these regulations, were not to be given effect by reason of what the trial court found to be a contrary Government policy as embodied in the Cargo Preference Act.4 This is the statute that provides that, "Whenever the United States shall procure, contract for, or otherwise obtain for its own account, or shall furnish to or for the account of any foreign nation without provision for reimbursement, any * * * commodities, within or without the United States, * * * the appropriate agency or agencies shall take such steps as may be necessary and practicable to assure that at least 50 per centum of the gross tonnage of such * * * commodities * * * which may be transported on ocean vessels shall be transported on privately owned United States-flag commercial vessels, to the extent such vessels are available at fair and reasonable rates for United States-flag commercial vessels, in such manner as will insure a fair and reasonable participation of United Statesflag commercial vessels in such cargoes by geographic areas."

9
The trial court held, in effect, that this provision of the statute established a policy that all shipments made because of the requirements of the Cargo Preference Act should be paid for by the United States at whatever charges were negotiated with the carrier so long as they were "fair and reasonable rates for United States-flag commercial vessels," even though the same carrier might be carrying the same commodity between the same ports for non-governmental shippers at substantially lower rates and notwithstanding agreement of the carrier as embodied in the bills of lading and the execution of the certificate of parity of charges by the carrier as has been outlined above.

10
The Government's claim for money had and received is based upon Bloomfield's breach of an express warranty that it was charging the Government no more than it was charging others for similar services. Bloomfield's contention in the trial court and here is that these were not "similar services" because in one case the services were performed for private shippers, whereas, in the other, they were performed for the United States Government. The trial court seems to have accepted this theory when it made an express finding that the rates charged the Government "did not exceed (a) those prevailing for similar freight contracts, nor (b) those paid to suppliers for similar ocean transportation, at or about the same time by other customers similarly situated" and the further finding that "those Bloomfield customers which shipped commercial grains on Bloomfield vessels, at rates which the Government compared with Bloomfield rates on Government-financed grain shipments in an attempt to establish the illegality of the latter, were not similarly situated to the Bloomfield customer which contracted for the carriage of Government-financed grain and rates here in controversy."

11
These findings could be true only if the fact that in one case the Government financed a shipment and in the other it was not so financed created a dissimilarity in the shipment.

12
We conclude that there is no justification for a writing out of the contract between the shipper and the carrier the express warranty that the rate charged the Government did not "exceed * * * the rate paid to the supplier [Bloomfield] for similar services by other customers similarly situated." This is a case of first impression. Bloomfield cites no cases to support its contentions.

13
There is nothing in the Cargo Preference Act that indicates that it is intended to fix freight rates. The American shipping industry, having convinced Congress that it had grave difficulties in competing on an even basis with foreign bottoms, was the beneficiary of the subsidy provisions of the Merchant Marine Act.5 Appellee here contends that sub silentio Congress also intended to provide further subsidies by having the Government pay higher rates for shipping than it might bargain for.

14
The thrust of appellee's contention is that, even though the Cargo Preference Act undertook to guarantee that at least 50 per cent of programmed commodities be transported by United States-flag commercial vessels, if they were available at fair and reasonable rates, and, even though Congress has provided further aid to the American flag carriers by allowing a subsidy to take up the slack between the cost of operations of foreign carriers as compared with that of American carriers as to shipments actually made, Congress also intended to prescribe that carriers could not validly agree to carry Government-financed shipments at a charge that was competitive with its charges for commercial shippers if such competitive rates are lower than rates shown to be fair and reasonable. We read no such policy in the Cargo Preference Act. In fact, it appears that the whole policy expressed in Sections 16 and 17 of the Shipping Act of 1916,6 is to prohibit unreasonable preferences or advantages to any particular person, locality, or description of traffic. It is not reasonable to assume that Congress does not intend that the American taxpayers shall benefit from this principle of non-discriminatory charges. When coupled with the express provisions of the ICA regulations and the contract freely entered into between the shipping company and the purchaser of the grain, there can be no justification for a conclusion that the United States should not be benefited by the contract as written.

15
The Government made no effort to attack the fairness or reasonableness of the rates here paid. Under its theory of the case, this was irrelevant. It appears that the element of fairness and reasonableness was itself related to the Government-financed shipments.7 It does not appear that the rates are such as would have been approved as reasonable or fair if they were tested against the ordinary standard of charges for commercial shipments which were not Government-financed. It cannot therefore be said that, in insisting upon compliance with the warranty and certificate, the Government is demanding reimbursement because it has the legal right to insist on an inequitable rate. It seeks only what non-governmental shippers obtained by contract, and what it also obtained by contract. There should be no distinction between them for the carriage over the same line, the same distance, and under the same circumstances. See Wight v. United States, 167 U.S. 512, 517, 17 S.Ct. 822, 42 L.Ed. 258.

16
Counsel for appellee candidly conceded on oral argument that appellee's contention that the particular charges here had been "approved" prior to shipment is significant only to the extent that the court accepts its theory of the case; that is to say, only if the court construes the Cargo Preference Act as requiring that the standard of rates shall be what is fair and reasonable without any option to the parties to agree that cargoes carried at Government expense shall be charged at rates as low as those carried for other shippers.

17
The trial court did not make a determination as to the amount of the charges in excess of the rates charged for similar commercial shipments. This determination must be made on remand.

18
The Judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Notes:

1
 Bloomfield received a subsidy designed to place its operations "on a parity with those of foreign competitors." 46 U.S.C. § 1171(a) (4)

2
 "Liner service" is characterized by "the carriage of general cargo, the maintenance of schedules * * * and the same freight rates charged to all shippers regardless of the quantity offered." Rosenthal, Techniques of International Trade, 36 (1950). This is to be contrasted to "tramp service" — carriage and vessels not operating on a regular schedule or route

3
 ICA was created within the Department of State as an unincorporated agency of the United States under authority of Executive Order No. 10610 (1955), as amended (see note following 22 U.S.C. § 1781 (1958)), and was authorized to implement and execute certain programs and functions specified in the Mutual Security Act of 1954, as amended, 22 U.S.C. §§ 1750-1951 (1958). All activities of ICA were conducted pursuant to the Mutual Security Act and ICA Regulation 1, as amended, 22 C.F.R. 201.1-201.25 (1958). ICA Regulation 1 is a compilation of the administrative rules and procedures under which ICA financed the procurement of commodities and related services, including ocean transportation, for the Federal Republic of Germany and other cooperating countries during the pertinent periods

4
 68 Stat. 832, 46 U.S.C. § 1241(b)

5
 Supra, fn. 1

6
 46 U.S.C. §§ 815, 816

7
 The trial court said:
"The government made no attempt to show that Bloomfield's rates on their government financed shipments were in excess of rates normally charged for similar service on government-financed cargoes, and there is adequate evidence to the effect that other shippers charged similar rates on government-financed cargoes." (Emphasis added)


24 F.2d 877 (1928)
BUCK et al.
v.
LESTER et al.
District Court, E. D. South Carolina.
March 7, 1928.
J. N. Nathans, of Charleston, S. C., and Wm. E. Arnaud, of Atlanta, Ga., for plaintiffs.
E. A. Blackwell, of Columbia, S. C., for defendants.
ERNEST F. COCHRAN, District Judge.
This matter came up before me on hearing on infringement of copyright. The facts as admitted are as follows:
The plaintiff, Leo Feist, Inc., is the owner of the copyright, and the American Society of Composers, Authors and Publishers, represented by Gene Buck, its president, is the assignee of the public performance rights in the musical composition "Sleepy Time Gal."
The defendant, Sue E. Lester, is the manager and officer of the Rialto Theatré Corporation, which operates a picture theatre in the city of Columbia, South Carolina, under the name of Rialto Theatre. On May 6th, 1927, while performances were being given in such theatre the musical composition "Sleepy Time Gal" was played on a piano player from a perforated roll for the enjoyment of the patrons.
The defendants claim that no notice of copyright appeared on the perforated roll which was being used, and that the defendants had no notice and did not know that the said piece was copyrighted.
I do not think this a sufficient defense under the Copyright Act (17 USCA).
It is, therefore, ordered, adjudged and decreed: That the defendants, their officers, agents, servants, and all other persons acting under the direction, control, permission or license of the defendant, be and they hereby are perpetually enjoined and restrained from publicly performing for profit said musical composition entitled "Sleepy Time Gal," and from causing or permitting the said composition to be publicly performed for profit, in said theatre or any other place, owned, controlled, or conducted by the defendants, and from aiding or abetting the public performance of said composition in any such place or otherwise; and it is further ordered, adjudged and decreed: That the plaintiffs recover of the defendants the sum of two hundred and fifty ($250.00) dollars as damages and the further sum of fifty ($50.00) dollars as an attorney's fee and the costs as taxed.