                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

 SHONICE G. GARNETT et al.,

                         Plaintiffs,

                         v.                            Case No. 17-cv-1757 (CRC)

 LAURA ZEILINGER,

                         Defendant.

                              MEMORANDUM OPINION AND ORDER

       Plaintiffs—recipients of Supplemental Nutrition Assistance Program benefits in the

District of Columbia—filed this putative class action against the director of the District’s benefit

program. They allege several violations of the federal requirements for administration of the

program. Plaintiffs now seek to certify two classes of District benefits recipients. Finding that

the resolution of their motion is governed by the D.C. Circuit’s recent decision in D.L. v. District

of Columbia (“D.L. II”), 860 F.3d 713 (D.C. Cir. 2017), the Court will grant their motion,

though it will certify three classes instead of two.

 I.    Factual Background

       A. The Supplemental Nutrition Assistance Program (“SNAP”)

       Congress originally enacted the Supplemental Nutrition Assistance Program (“SNAP”) in

1964, seeking to combat hunger and malnutrition by assisting low-income households in

purchasing food. See Food Stamp Act of 1964, Pub. L. No. 88-525, 78 Stat. 703 (codified at 7

U.S.C. §§ 2021 et seq.).1 A household is typically eligible for SNAP benefits if its net income is

       1
         The program began as the “Food Stamp Program” and the name was changed to SNAP
in 2008. See Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-234, § 4001, 122
Stat. 923, 1092.
below the federal poverty line and its resources generally do not exceed $2,000. 7 U.S.C.

§ 2014(c), (g). Within the federal government, the Secretary of Agriculture has delegated most

of the administration of SNAP to the federal Food and Nutrition Service (“FNS”), an agency

within the Department of Agriculture. 7 C.F.R. § 271.3.

       Responsibility for administering SNAP is shared between the federal government and the

States. The federal government provides the funding for benefits and covers 50 percent of

administrative costs. 7 U.S.C. §§ 2013(a), 2025. States can elect to participate in the program

and, if they do, are responsible for certifying household eligibility, issuing benefits, and

otherwise administering the program on the state level. Id. §§ 2013(a), 2020(a)(1); 7 C.F.R.

§ 271.4. If a State elects to participate, it must administer its SNAP program in accordance with

the relevant statutes and the Secretary of Agriculture’s regulations. 7 U.S.C. § 2020(e); 7 C.F.R.

§ 273.2.

       Part of these requirements involve the procedure for processing applications for SNAP

benefits. For instance, States must allow a household to apply for SNAP benefits the same day

that it contacts a SNAP program office in person during office hours. 7 U.S.C.

§ 2020(e)(2)(B)(iii). Once a State receives an application for benefits, it must “promptly” certify

a household’s eligibility. Id. § 2020(e)(3). This certification process must be completed and

benefits provided no later than thirty days after the application’s filing. Id. For certain

households with extremely low income—less than $150 per month or liquid resources less than

$100—the State must provide benefits no later than seven days after an application is filed. Id.

§ 2020(e)(9)(A). These are known as “expedited” applications.

       Eligible households are certified for a specific period of time, known as the “certification

period.” See id. § 2020(e)(4). States are required to ensure that households receive a notice at

                                                  2
the start of the last month of their certification period, warning them of the expiration of the

certification period and the need to recertify to continue receiving benefits. Id. For any

household that submits a recertification application no later than fifteen days prior to the

expiration of its certification period, the State must provide benefits—if the household remains

eligible—without a break in provision. Id. If a State fails to process a completed application on

time, the household is entitled to a written notice of this failure and information regarding appeal

rights, including the right to a hearing. Id. § 2020(e)(10).

        B. Procedural history

        In August 2017, a group of D.C. residents filed suit against Laura Zeilinger, the Director

of the District’s Department of Human Services—which oversees the District’s SNAP

program—alleging that the District’s administration of SNAP was deficient in several respects.2

Specifically, Plaintiffs alleged that the District was: (1) failing to process initial applications for

benefits and provide benefits to eligible households within the applicable statutory time limit, in

violation of the SNAP Act, Am. Compl. ¶ 171; (2) failing to complete the SNAP recertification

application process so as to allow eligible households to receive benefits without a break in

service, also in violation of the SNAP Act, id. ¶ 172; and (3) failing to provide notice and an

opportunity for a hearing for SNAP applicants whose applications were not processed on time, in

violation of the SNAP Act and the Due Process Clause of the Constitution, id. ¶ 173. They

sought declaratory and injunctive relief to correct these violations.

        Simultaneously with their complaint, Plaintiffs filed a motion for class certification.

Plaintiffs sought to certify two classes: (1) a class of residents whose SNAP benefit applications

        2
          Although Zeilinger is the sole defendant in this case, the Court will use “the District” to
refer to the defendant here.

                                                   3
were not processed in accordance with the timelines mandated by statute and (2) a class of

residents who did not receive their recertification notices as required by statute and had their

benefits terminated as a consequence. Pls.’ Mem. Law. Supp. Mot. Class Certification (“Class

Cert. Mot.”) at 4. Plaintiffs later filed a motion for a preliminary injunction, and the Court set a

parallel briefing schedule for both that motion and the motion for class certification. Following a

period of limited discovery related to issues raised in the motion for a preliminary injunction, the

parties completed briefing on both motions. The Court held a hearing on both motions on March

19, 2018. It will now resolve Plaintiffs’ pending motion for class certification.3

  II.   Legal Standard

        Federal Rule of Civil Procedure 23(a) establishes four requirements for certification of a

class: (1) numerosity, that “the class is so numerous that joinder of all members is

impracticable”; (2) commonality, that “there are questions of law or fact common to the class”;

(3) typicality, that “the claims or defenses of the representative parties are typical of the claims

or defenses of the class”; and (4) adequacy, that “the representative parties will fairly and

adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). In addition to meeting these

four requirements under Rule 23(a), a putative class must also meet one of the requirements of

Rule 23(b). Here, Plaintiffs allege that they meet the requirements of Rule 23(b)(2), that “the

party opposing the class has acted or refused to act on grounds that apply generally to the class,

so that final injunctive relief . . . is appropriate respecting the class as a whole.” Fed. R. Civ. P.

23(b)(2). The party seeking certification bears the burden of persuasion, and must show that the

        3
            Plaintiffs’ motion for a preliminary injunction will be addressed in a forthcoming ruling.

                                                   4
putative classes meet the requirements of Rule 23 by a preponderance of the evidence. See, e.g.,

Hoyte v. District of Columbia, 2017 WL 3208456, at * 5 (D.D.C. July 27, 2017).

  III. Analysis

        The District challenges class certification under both Rule 23(a) and Rule 23(b)(2).

Before confronting these challenges, the Court will briefly respond to two threshold arguments

the District raises.

        A. The District’s threshold arguments

        First, the District contends that class certification is not appropriate because Plaintiffs

cannot meet the requirements for a preliminary injunction. Def.’s Opp’n Pls.’ Mot. Class

Certification (“Class Cert. Opp’n”) at 7–8; Def.’s Surreply Supp. Opp’n Pls.’ Mot. Class

Certification (“Class Cert. Surreply”) at 2–3. The District cites a single case for this proposition:

Hardy v. Fisher, 701 F. Supp. 2d 614 (S.D.N.Y. 2010). But that case in inapposite. In Hardy,

the district court ruled that the putative class was not entitled to preliminary injunctive relief

because the plaintiffs raised claims that could not be brought under 42 U.S.C. § 1983. See id. at

622–23. The court stated that the “denial of the motion for injunctive relief moot[ed] the motion

for certification of an injunctive class.” Id. at 617 n.3. But here the District does not argue that

Plaintiffs cannot bring injunctive relief claims under the statute at issue; rather, their arguments

against the motion for preliminary injunction focus on why Plaintiffs fail to meet the specific

requirements for preliminary injunctive relief. See Def.’s Opp’n Pls.’ Mot. Prelim. Inj.; Def.’s

Surreply Supp. Opp’n Pls.’ Mot. Prelim. Inj. In any case, even if the Court were to follow the

approach taken by the court in Hardy, it would be premature to deny class certification on this

ground now because the Court has not yet ruled on the preliminary injunction motion. If the

                                                   5
Court were to conclude that Plaintiffs could not obtain any injunctive relief under the statute, it

could decertify the class at that juncture.

       Second, the District argues that class certification is unnecessary because “the ‘injunctive

relief sought by the named plaintiffs would benefit all proposed class members.’” Class Cert

Surreply at 3 (quoting Sargent v. Black, 576 F. Supp. 882, 888 (D.D.C. 1983)); see also Class

Cert. Opp’n at 7. This is a somewhat odd position for the District to take: it later argues, as the

Court will discuss, that a single injunction would not remedy the harms for all class members.

See Class Cert Opp’n at 18.

       This argument is unpersuasive in any event. The Court has an obligation to ensure that

any injunction it issues is “narrowly tailored to remedy the specific harm shown.” Nev. Dep’t of

Health & Human Servs. v. U.S. Dep’t of Health & Human Servs., 435 F.3d 326, 330 (D.C. Cir.

2006). To the extent that the named plaintiffs show that they are individually harmed, the Court

could issue an injunction narrowly tailored to them individually—i.e., directing the District to

process their specific applications or issue their specific recertification notices on time—which

would provide no relief to the absent class members. Thus, contrary to the District’s argument,

any injunctive relief issued to the named plaintiffs would not necessarily or automatically benefit

the absent class members.4 The Court will therefore turn to the requirements for certification

under Rule 23.

       4
          In addition, it is not clear that the Court can or should issue class-wide injunctive relief
without a certified class. See, e.g., Brown v. Trustees of Boston Univ., 891 F.2d 337, 361 (1st
Cir. 1989) (“Ordinarily, classwide relief, such as the injunction here which prohibits sex
discrimination against the class of Boston University faculty, is appropriate only where there is a
properly certified class.”); Zepeda v. U.S. Immigration & Naturalization Serv., 753 F.2d 719,
728 n.1 (9th Cir. 1983) (“Without a properly certified class, a court cannot grant relief on a class-
wide basis.”); Davis v. Romney, 490 F.2d 1360, 1366 (3d Cir. 1974) (“Relief cannot be granted
to a class before an order has been entered determining that class treatment is proper.”); cf.

                                                  6
       B. Requirements of Rule 23(a)

       The District argues that Plaintiffs fail to show they meet the four requirements for class

certification in Rule 23(a). While the District challenges all four requirements, it focuses on

commonality and typicality. The Court ultimately concludes that this case is analogous to the

D.C. Circuit’s recent decision in D.L. II and, as there, Plaintiffs have demonstrated that the

requirements of class certification in Rule 23(a) are met.

               1. Numerosity

       The first requirement that must be met for class certification is numerosity: that “the class

is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). To

establish numerosity, a party need not provide a precise number of class members as long as

there is a reasonable basis to estimate it. See, e.g., Howard v. Liquidity Services Inc., 322 F.R.D.

103, 117 (D.D.C. 2017). Courts have typically considered a class of at least forty members to

presumptively meet the requirement of numerosity. See, e.g., Barnes v. District of Columbia,

242 F.R.D. 113, 121 (D.D.C. 2007).

       With respect to Class One—District residents whose applications for SNAP benefits were

and will not be processed in a timely manner—numerosity is easily satisfied. Plaintiffs point to

the quarterly compliance reports that the District files with the Food and Nutrition Service,

known as “FNS-366B reports.” According to the most recent such report—which covers the

first quarter of the 2018 fiscal year, October to December 2017—the District approved 4,328

applications after the applicable time limit had passed, 367 initial applications and 3,961

Dorfmann v. Boozer, 414 F.2d 1168, 1171 n.8 (D.C. Cir. 1969) (“The preliminary injunction,
especially one which worked a transfer of money belonging to persons who were not within the
jurisdiction of the court, should not have been issued before the action was certified as a class
action.”).

                                                 7
recertification applications. Class Cert. Surreply Ex. B. Most, if not all, of these households

would be members of the proposed class since their applications were not processed in

accordance with the statutory time limits. Thus, even taking just the applications processed after

the statutory time limit in one quarter of one fiscal year, Plaintiffs provide a reason to estimate

the proposed class number to be in the hundreds, if not thousands. This presumptively satisfies

numerosity, and the District offers no rebuttal to that presumption.

       Turning to Class Two—District residents whose benefits were interrupted because they

failed to receive a timely recertification notice—the Court concludes that numerosity is also met.

Plaintiffs have similarly provided a basis to conclude that this class number is in the hundreds, if

not thousands, as well. For instance, Plaintiffs point out that a vendor’s error in June 2017

resulted in 4,500 households failing to receive recertification notices and a significant portion of

these households losing benefits. Pls.’ Reply Ex. 2 (Deposition of Laura Zeilinger), at 130:11.

And according to the FNS-366B reports, the District processes around 9,000 to 10,000

recertification applications every quarter. See Class Cert. Surreply Ex. B. (FNS-366B report for

first quarter, fiscal year 2018); Decl. of Jennifer Mezey Supp. Pls.’ Reply Def.’s Opp’n Pls.’

Mot. Prelim. Inj. Ex. P, at 2–4 (FNS-366B reports for second, third, and fourth quarter, fiscal

year 2017). Even if just 1% of all the households up for recertification fail to receive notices and

lose benefits as a result, the class numbers over 100. This, again, presumptively satisfies

numerosity and the District has not rebutted that presumption.

               2. Commonality

       Second, the classes must meet the requirement of commonality: that “there are questions

of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality requires that the

plaintiff class has “suffered the same injury.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350

                                                  8
(2011). The Supreme Court has explained that this does not mean “merely that they have all

suffered a violation of the same provision of law.” Id. Rather, the putative class’s “claims must

depend upon a common contention” that is “capable of classwide resolution—which means that

determination of its truth or falsity will resolve an issue that is central to the validity of each one

of the clams in one stroke.” Id.

        The District argues that Plaintiffs’ class certification motion founders at this requirement

because “the alleged violations of the SNAP Act and due process are too generalized to

demonstrate commonality of claim.” Class Cert. Opp’n at 10. There are myriad reasons why an

application was not timely processed, the District points out, so “the answer to the question of

whether a SNAP Act or due process violation exists will require examination of the facts of each

class member, rather than being common to the class.” Id. at 11. More specifically, the District

contends that the questions presented here will devolve into a “case-by-case examination” to

determine whether in any individual class member’s case the District violated the SNAP Act

timelines and a further case-by-case analysis “to determine what fault, if any, may be attributed

to the District” for any such failure. Class Cert. Surreply at 6.

        The District’s argument has a key underlying premise: that the determination of whether

a statutory violation occurred depends upon why a failure to meet the statutory time limit

happened. In other words, the District assumes that even if a particular SNAP application is

untimely processed or a particular recertification notice is not sent, that may or may not

constitute a statutory violation depending on why it happened.

        But that is not how the statutory scheme works. Determining if there is a statutory

violation does not hinge on the reason for any particular failure to adhere to the statutory

timelines. The statute speaks in terms of absolute deadlines without any caveats or limitations

                                                   9
when it comes to meeting them. For instance, it provides that “the State agency [administering

SNAP] shall . . . promptly determine the eligibility of each applicant household . . . so as to

complete the certification of and provide an allotment retroactive to the period of application to

any eligible household not later than thirty days following its filing of an application.” 7 U.S.C.

§ 2020(e)(3) (emphasis added).5 For expedited benefits, the “State agency shall provide benefits

no later than 7 days after the date of application” to households eligible for such benefits. Id.

§ 2020(e)(9)(A) (emphasis added). And for recertification, it provides that “the State agency

shall ensure that each participating household receive a notice of expiration of its certification

prior to the start of the last month of its certification period advising the household that it must

submit a new application.” Id. § 2020(e)(4) (emphasis added). If the household files its

application no later than fifteen days prior to the end of its current allotment period, it “shall, if

found to be still eligible, receive its allotment no later than one month after receipt of the last

allotment issued to it pursuant to its prior certification.” Id. (emphasis added).6

        This statutory text “impose[s] binding obligations on the States” and “require[s] the

allotment of food stamps within a definite number of days.” Briggs v. Bremby, 792 F.3d 239,

242 (2d Cir. 2015). It provides no basis to conclude that the reason for a State’s failure to meet

        5
         According to the Department of Agriculture’s regulations, “[a]n application is filed the
day the appropriate food stamp office receives an application containing the applicant’s name
and address, which is signed by either a responsible member of the household or the household’s
authorized representative.” 7 C.F.R. § 273.2(g)(1).
        6
         The regulations promulgated by the Department of Agriculture echo this absolute
timeliness requirement. See 7 C.F.R. § 273.2(g)(1) (The “State agency shall provide eligible
households that complete the initial application process an opportunity to participate . . . as soon
as possible, but no later than 30 calendar days following the date the application was filed.”
(emphasis added)); id. § 273.2(i)(3)(i) (“[T]he State agency shall post benefits to the household’s
EBT card and make them available to the household not later than the seventh calendar day
following the date an application was filed.” (emphasis added)).

                                                  10
those deadlines matters. The statute does not say that the State must determine eligibility within

thirty days unless or if some event occurs; it states that the State shall determine eligibility within

thirty days without conditions or limitations.7 So, too, with the requirements for expedited

benefits and recertification notices. The statute “literally requires strict compliance with its

provisions.” Haskins v. Stanton, 794 F.2d 1273, 1277 (7th Cir. 1986); see also Robertson v.

Jackson, 766 F. Supp. 470, 476 (E.D. Va. 1991) (“The law requires full compliance absent what

is hoped will be minimum human error.”), aff’d, 972 F.2d 529 (4th Cir. 1992).8

        In light of the statutory and regulatory text, the reason why a deadline was missed is

irrelevant. Rather, the key question for liability under the statute is whether the District is

systemically processing applications and sending recertification notices within the statutory

deadlines, not why it has failed to do so in any particular case or on a systemic level. This

question can be answered on a class-wide basis.

        Given the SNAP timelines’ absolute operation, this case is fairly controlled by the D.C.

Circuit’s decision in D.L. II. In D.L II., the trial court certified a class with four subclasses in a

        7
         This strict compliance requirement is not undermined by the fact that regulations from
the Department of Agriculture discuss how to determine who is at fault for any delay in the
processing of an application. See 7 C.F.R. § 273.2(h). As the Second Circuit has noted,
“[r]egulations which anticipate that a State agency will sometimes fail to meet statutory
deadlines . . . cannot be read to repeal those deadlines.” Briggs v. Bremby, 792 F.3d 239, 246
(2d Cir. 2015). Such regulations “supplement 7 U.S.C. § 2020(e)(3) and (9); they do not
override them.” Id. If they did, “they would likely be ultra vires, for no agency regulation can
overturn a clear statutory mandate.” Id.
        8
          The Court is, of course, cognizant of the fact that 100% perfect compliance may not be
possible and does not intend this discussion to suggest a position on the underlying merits of this
case or on whether injunctive relief is appropriately granted for any rate of compliance short of
100%. Cf. Withrow v. Concannon, 942 F.2d 1385, 1388 (9th Cir. 1991) (“There is, however,
doubtless a point at which any failure of total compliance is truly de minimis, where the state has
come to comply ‘as strictly as is humanly possible,’ and it is within the discretion of the district
court to deny injunctive relief.”).

                                                  11
case alleging the District of Columbia had failed to adhere to the “Child Find” requirements of

the Individuals with Disabilities Education Act (“IDEA”), which in part obligate states to locate

and provide special education services to children and preschoolers with disabilities within

certain time limits. 860 F.3d at 717. The D.C. Circuit affirmed the class certification on appeal.

Id. at 724. The District there similarly argued that “‘there [were] many different reasons’ it

might have denied a particular child” his or her rights under the IDEA, such as a failure of

outreach, or insufficient staff, or “documentation errors.” Id. at 725 (citations omitted). The

D.C. Circuit held that this variation in factual patterns did not undermine commonality, in

contrast to the Supreme Court’s decision in Wal-Mart, which involved liability under Title VII:

       IDEA requires the District to find and serve all children with disabilities as a
       condition of its funding. Unlike Title VII liability, IDEA liability does not depend
       on the reason for a defendant’s failure and plaintiffs need not show why their rights
       were denied to establish that they were. They need only show that the District in
       fact failed to identify them, failed to provide them with timely eligibility
       determinations, or failed to ensure a smooth transition to preschool.

Id. at 725. Because each subclass alleged a discrete, common harm susceptible to common

proof—such as whether the District was systemically failing to determine whether children were

eligible for special education within 120 days of being referred for a disability evaluation—the

court held that the district court did not err in finding the requirement for commonality met.

       As in D.L. II, liability here “does not depend on the reason for a defendant’s failure and

plaintiffs need not show why their rights were denied to establish that they were.” Id. Instead,

Plaintiffs need only prove that the District is systemically failing to process applications or to

issue recertification notices on time. The question the Court confronts is simply whether

applications are being timely processed or certification notices are being timely sent, not why

they are or are not. This question, as in D.L. II, is one that can be resolved with common

proof—for instance, statistics showing that a certain percentage of applications are not processed

                                                 12
on time, cf. id. at 724–25 (discussing plaintiffs’ statistical evidence showing a systemic failure to

comply with specific IDEA requirements). Consequently, any variations in the “why” do not

negate the commonality of the “whether.” Plaintiffs have therefore demonstrated that their

proposed classes meet the requirement of commonality.

                 3. Typicality

          Next, the classes must meet the requirement of typicality: that “the claims or defenses of

the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P.

23(a)(3). Typicality seeks to assess whether the class representatives “have suffered injuries in

the same general fashion as absent class members.” Hoyte, 2017 WL 3208456, at *4 (citation

omitted). The facts and claims of each named representative need not be identical to those of the

absent class members; rather “typicality refers to the nature of the claims of the representative,

not the individual characteristics of the plaintiff.” Id. (citation omitted). This is because

typicality simply requires “sufficient factual and legal similarity between the class

representative’s claims and those of the class to ensure that the representative’s interests are in

fact aligned with those of the absent class members.” In re Navy Chaplaincy, 306 F.R.D. 33, 53

(D.D.C. 2014) (quoting 1 William B. Rubenstein, Newberg on Class Actions § 3:31 (5th ed.

2013)).

          The District’s argument as to why typicality is not met is a variation on its argument on

commonality. It contends that “factual differences in the type of harm suffered by the putative

class members” render the named plaintiffs’ claims “atypical of the putative classes.” Class

Cert. Surreply at 8. In sum, the District maintains that the class cannot be certified “because any

purported delay in the processing of applications and recertifications, or the failure to provide

adequate notice, requires an individualized case-by-case inquiry.” Class Cert. Opp’n at 14.

                                                  13
       This argument fails for the same reasons it failed as to commonality. See D.L. II, 860

F.3d at 725 (rejecting a similar argument on commonality). For one, the named plaintiffs all

allege the same injuries as the absent class members. The proposed representatives of Class

One—Shonice G. Garnett, Richard Messick, Jr., Linda Murph, and Kathryn Harris—all attest

that the District failed to process their initial or recertification applications for SNAP benefits

within the statutory timelines. Class Cert. Mot. Ex. 2, ¶¶ 7, 11 (Declaration of Shonice G.

Garnett); id. Ex. 3, ¶¶ 7–8 (Declaration of Richard Messick, Jr.); id. Ex. 4, ¶¶ 4, 6 (Declaration of

Linda Murph); Declaration of Kathryn Harris [ECF No. 27-6] ¶ 5. This is precisely the harm

alleged to have been suffered by the other members of Class One. See Class Cert. Mot. at 4.

The same is true for the proposed representatives of Class Two, James Stanley and Roderick

Gaines. Both Mr. Stanley and Mr. Gaines attest that their SNAP benefits were cut off without

notice in September 2017, that neither received a recertification notice, and that this failure to

recertify was likely the reason for the termination of benefits. Declaration of James Stanley

[ECF No. 27-2] ¶¶ 3–5; Declaration of Roderick Gaines [ECF No. 27-4] ¶¶ 3, 5. This is the

exact harm alleged by all of the members of Class Two. See Class Cert. Mot. at 4.

       The District argues that this is nonetheless insufficient because the fact that the named

plaintiffs “suffered ‘the same harm’” does not mean that “an alleged District policy or practice

injured them and the putative class in the same manner.” Class Cert. Opp’n at 13–14. But the

District once again assumes that any differences in facts here lead to differences in legal theories

or a different manner of injury—which, as discussed above, is not so. Rather, Plaintiffs present a

single legal injury, a single legal theory, and a single means of injury: the District has

systemically failed to process applications or issue recertification notices on time and

                                                  14
consequently violated Plaintiffs’ statutory rights under the SNAP Act. As in D.L. II, any factual

variations does not undermine typicality. See 860 F.3d at 725–26.

               4. Adequacy

       The final of the four preliminary requirements is adequacy: that “the representative

parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The

D.C. Circuit recognizes two criteria for determining adequacy: (1) that the named plaintiffs

“must not have antagonistic or conflicting interests with the unnamed members of the class” and

(2) that the named representatives “must appear able to vigorously prosecute the interests of the

class through qualified counsel.” Hoyte, 2017 WL 3208456, at *4 (quoting Twelve John Does v.

District of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997)).

       The District argues that the second requirement is not met. While the District takes no

position on adequacy of class counsel, Class Cert. Opp’n at 17; Class Cert. Surreply at 9 n.2, it

argues that the named plaintiffs do not have sufficient knowledge and information to adequately

represent the absent class members. But adequacy “does not require either that the proposed

class representatives have legal knowledge or a complete understanding of the representative’s

role in class litigation.” Thorpe v. District of Columbia, 303 F.R.D. 120, 151 (D.D.C. 2014); see

also 1 William B. Rubenstein, Newberg on Class Actions § 3:67 (5th ed. 2013) (“Adequacy is

satisfied . . . if the plaintiff has some rudimentary knowledge of her role as a class representative

and is committed to serving in that role in litigation.”). Instead, courts typically decline

certification only in “flagrant cases, where the putative class representatives display an alarming

unfamiliarity with the suit, display an unwillingness to learn about the facts underlying their

claims, or are so lacking in credibility that they are likely to harm their case.” Howard v.

Liquidity Services Inc., 322 F.R.D. 103, 135 (D.D.C. 2017) (citation omitted). Here, the named

                                                 15
plaintiffs have all attested that their lawyers informed them of the responsibilities of a class

representative and that they are willing to protect the class’s interests, and their declarations

demonstrate an awareness of the facts of this case.9 That is sufficient to make them adequate

representatives.

        C. Requirements of Rule 23(b)(2)

        In addition to the four preliminary requirements in Federal Rule of Civil Procedure 23(a),

a proposed class must meet one of the three requirements of Rule 23(b). Plaintiffs contend they

meet the requirements of Rule 23(b)(2), namely that “the party opposing the class has acted or

refused to act on grounds that apply generally to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate respecting the class as a whole.” In other words,

Rule 23(b)(2) requires that “a single injunction or declaratory judgment would provide relief to

each member of the class.” Wal-Mart, 564 U.S. at 360.

        The District’s argument to the contrary is a continued variation on the theme of its

arguments on commonality and typicality: factual differences mean that plaintiffs “have not

established the ‘similar grounds’ required to justify certification . . . nor is there any ‘single

injunction or declaratory judgment’ that could provide relief to the class as a whole.” Class Cert.

Opp’n at 18.

        The Court disagrees. Plaintiffs here present a single practice causing each class’s

injury—namely, the District’s systemic failure to meet the timelines in the SNAP Act for

processing applications and issuing recertification notices. How or why the District may be

        9
         See Class Cert. Mot. Ex. 2, ¶¶ 14–15 (Declaration of Shonice G. Garnett); id. Ex. 3,
¶¶ 18–19 (Declaration of Richard Messick, Jr.); id. Ex. 4, ¶¶ 8–9 (Declaration of Linda Murph);
Declaration of Kathryn Harris [ECF No. 27-6] ¶¶ 8–9; Declaration of James Stanley [ECF No.
27-2] ¶¶ 9–10; Declaration of Roderick Gaines [ECF No. 27-4] ¶¶ 10–11.

                                                   16
doing so is irrelevant; all that matters, as already explained, is whether the District is missing the

deadlines. If it is, that injury can be remedied by a single injunction ordering the District to

comply with the statutory timelines.

        Once again, this case is more akin to D.L. II than the cases that the District relies on. The

district court in D.L. II entered an order requiring, among other things, that the District attain a

95% compliance rate with statutory time limits for evaluating children for disability services and

for providing transition services for children, along with annual improvement rates. D.L. II, 860

F.3d at 720. On appeal, the D.C. Circuit again rejected a similar argument from the District as

here, noting that a single injunction was able to provide relief to each class member, particularly

since the district court’s order “d[id] just that.” Id. at 726. Like the district court in D.L. II, this

Court could enter an order requiring the District meet certain levels of compliance with the

statutory timelines and requiring improvement. And as in D.L. II, this order would remedy

Plaintiffs’ injuries. Thus, the requirements of Rule 23(b)(2) are met here.

  IV. Conclusion

        The District’s primary argument against class certification—made with slight variations

as to the requirements of commonality, typicality, and Rule 23(b)(2)—is that Plaintiffs’ claims

are too factually diverse and their legal theory too broadly defined to sustain a class action. But

the statutory scheme provides the requisite level of specificity: it sets clear timelines for handling

SNAP benefit applications and recertification notices and clearly mandates that States follow

them. See 7 U.S.C. § 2020(e)(3), (9). And Plaintiffs present a single legal theory: the District

has systemically failed to comply with the requirements under the statute for processing SNAP

benefit applications and issuing recertification notices. Finally, the statute gives no indication

that the reason why the District failed to process a particular application or issue a particular

                                                   17
recertification notice within the relevant timeframe has any bearing on whether it violated the

statute. Consequently, as in the D.C. Circuit’s decision in D.L. II, any factual variations are not

fatal to class certification.

        The Court’s conclusion that the requirements for class certification are met here is further

buttressed by the fact that other district courts have certified similar classes in SNAP benefit

cases. See, e.g., Briggs v. Bremby, 2013 WL 1987237, at *6 (D. Conn. May 13, 2013)

(certifying a class of all Connecticut residents whose applications for SNAP benefits were not

timely processed); Reynolds v. Giuliani, 118 F. Supp. 2d 352, 392 (S.D.N.Y. 2000) (certifying a

class of all New York residents that sought to apply for SNAP benefits in a case alleging, in part,

a failure to adhere to the SNAP statutory time frames). This is not surprising: as the D.C. Circuit

has stated, “Rule 23(b)(2) exists so that parties and courts, especially in civil rights cases like

this, can avoid piecemeal litigation when common claims arise from systemic harms that demand

injunctive relief.” D.L. II, 860 F.3d at 726; see also In re District of Columbia, 792 F.3d 96, 102

(D.C. Cir. 2015) (“Rule 23(b)(2) was intended for civil rights cases.”). Accordingly, the Court

concludes that Plaintiffs have demonstrated that their proposed classes meet the requirements for

certification and will grant their motion.

        However, the Court will certify three, rather than two, classes. Because the statutory

scheme is slightly different with regards to the processing of recertification as opposed to initial

applications, in an abundance of caution and to avoid any possible conflicts of interest the Court

will subdivide the first proposed class into two classes: one of residents whose initial

applications were not processed on time and one of residents whose recertification applications

were not processed on time. The Court may, of course, revisit certification or class definitions as

the litigation progresses.

                                                  18
                                                 ***

       For the foregoing reasons, it is hereby

       ORDERED that [2] Plaintiffs’ Motion for Class Certification is GRANTED. The Court

will certify three classes with the following named representatives.

       Class 1:

       Definition: All District of Columbia residents since June 1, 2016: (1) who have
       applied, are applying, or will apply for SNAP benefits, through an initial
       application; and (2) who have had or will have the processing of such application
       delayed beyond the timeframes mandated by law.

       Class representatives: Shonice G. Garnett, Richard Messick, Jr.

       Class 2:

       Definition: All District of Columbia residents since June 1, 2016: (1) who have
       applied, are applying, or will apply for SNAP benefits, through a recertification
       application; and (2) who have had or will have the processing of such application
       delayed beyond the timeframes mandated by law.

       Class representatives: Kathryn Harris, Linda Murph

       Class 3:

       Definition: All District of Columbia SNAP recipients since June 1, 2016: (1) who
       have been or will be required to submit a recertification application to maintain
       SNAP benefits; (2) as to whom the Defendant has failed or will fail to issue notice
       of the need to recertify; and (3) who have been or will be terminated from
       participation in SNAP due to Defendant’s failure to issue such notice.

       Class representatives: James Stanley, Roderick Gaines

       SO ORDERED.

                                                             CHRISTOPHER R. COOPER
                                                             United States District Judge

Date: March 28, 2018

                                                 19


950 F.2d 726
Murphy (Charles Lester)v.U.S.
NO. 90-2595
United States Court of Appeals,Eighth Circuit.
AUG 30, 1991
Appeal From:  N.D.Iowa

1
AFFIRMED.


771 F.2d 1
18 Fed. R. Evid. Serv. 969
Frederick CLAY, Petitioner, Appellant,v.George VOSE, Respondent, Appellee.
No. 85-1088.
United States Court of Appeals,First Circuit.
Argued June 7, 1985.Decided Aug. 23, 1985.

Thomas G. Shapiro, Boston, Mass., with whom Shapiro & Grace, Boston, Mass., was on brief for petitioner, appellant.
Frances L. Robinson, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Frederick W. Riley, Asst. Atty. Gen., Chief, Criminal Bureau, and Barbara A.H. Smith, Asst. Atty. Gen., Chief, Criminal Appellate Div., Boston, Mass., were on brief for respondent, appellee.
Before CAMPBELL, Chief Judge, RUBIN* and BREYER, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge.

1
The introduction of identification testimony from a previously hypnotized witness who had given a prehypnosis identification to the police and who was subject to in-court cross-examination before a carefully instructed jury who also heard testimony concerning the potential inaccuracies of hypnotically induced testimony did not violate the defendant's sixth amendment right to confront the witness.  We, therefore, affirm the district court's decision, 599 F.Supp. 1505, to deny the petition for writ of habeas corpus of a person convicted of a state offense after the admission of such testimony against him.

I.

2
Jeffrey Boyajian, a cab driver, was shot and killed in November, 1979.  The police found his body near his cab in front of the Archdale Housing Project in downtown Boston.

3
On the night of the murder, Richard Dwyer, another taxi driver, had parked his cab behind Boyajian's taxi in front of the Pilgrim Theatre.  Dwyer saw three black men cross the street and approach the cabs.  The three first headed for Dwyer's cab, but he did not like their looks and turned on his meter to indicate that he was busy.  He then observed them entering the cab in front of him.  One of the men, later identified as James Watson, walked in front of Dwyer's cab and looked Dwyer directly in the eye before entering the taxi.  Dwyer watched the three men for no more than thirty seconds, and did not attach any particular significance to his observations at the time.

4
The next day, however, Dwyer read an account of Boyajian's murder in the newspaper.  He telephoned the police, went to a police station, and gave a somewhat vague description of the men whom he had seen the night before.  The police asked Dwyer if he would be willing to undergo hypnosis to improve his memory of the men, and Dwyer agreed.  Before being hypnotized, Dwyer examined a group of twelve photographs.  He made a positive identification of Watson, and also picked out a picture of Clay whom he tentatively identified as one of the other men he had seen enter Boyajian's cab shortly before the time of the murder.  At trial, there was conflicting testimony concerning the degree of confidence Dwyer expressed in his identification.  The police said he had been "80% certain," but Dwyer testified to a lesser degree of certainty.  Dwyer also picked out a third photo that he "liked," but could not provide a positive identification of the third man.

5
After Dwyer had examined the photographs, Detective Brady, the hypnotist, explained to Dwyer that, under hypnosis, he would see "a documentary of what had taken place," "that the hypnosis would make it clear in [his] mind what [he] had seen the previous evening," and that Dwyer "would be able to see [the events] in his mind just as if he were watching T.V."    (There was later testimony that this account of the mental processes of a person under hypnosis is incorrect and, because it is misleading, unduly suggestive as well.)    Three Assistant District Attorneys also attended the hypnosis session, as did three police detectives.  The police also made an audio recording of the session.  Dwyer did not make any identifications while under hypnosis.

6
Immediately after Detective Brady had hypnotized him, had instructed him to review the events, and had returned Dwyer to consciousness, Dwyer examined the same photo array he had seen before the session.  He reiterated his identification of Watson, and was now positive that Clay's photograph was that of one of the men he had seen the night of the murder.  He remained unable to identify the third man.  Eleven days later, Dwyer underwent hypnosis a second time.  After this second session, Dwyer viewed the same photographs again, and repeated his identification of Watson and Clay, but was unable to identify the third man.  The police made an audio recording of this session as well.

7
At trial, the court admitted into evidence the fact of Dwyer's pretrial identification of the photographs of Watson and Clay, including the change in his professed confidence in his identification of Clay after hypnosis.  In addition, Dwyer took the stand and identified both defendants in the courtroom.

8
The jury also heard extensive testimony concerning the hypnotic sessions, including a tape recording of each session.  They heard conflicting expert testimony from Dr. Martin Reiser, who testified for the Commonwealth, and from Dr. Martin Orne, Clay's expert.  Dr. Reiser testified that he approved of the technique that Detective Brady had used to induce hypnosis, and that, in his opinion, hypnosis was not highly significant in the instant case.  Dr. Orne, on the other hand, criticized Detective Brady's technique in conducting the sessions.  He also gave his opinion that the hypnotic procedures used in this case profoundly increased Dwyer's conviction about what he was saying without necessarily increasing the accuracy of the statements.

9
Dwyer's testimony was not the only evidence adduced at trial.  The Commonwealth introduced Neal Sweatt, a resident of the Archdale Project.  Sweatt testified that he saw Watson, Clay, and a third man pull Boyajian from his cab, beat him, and rifle through his pockets.  Sweatt also said that he saw Clay point an arm in the driver's direction, heard at least three shots, then saw the three men run away together.  Sweatt identified Watson and Clay from a police photographic array, and again in court.  Parts of Sweatt's testimony, but not the identifications, were corroborated by Sweatt's mother and by one of Sweatt's friends, both of whom viewed the incident from the parlor window in Sweatt's apartment.

10
In defense, Clay called his foster mother who testified that, on the evening of the murder, Clay was in the foster home, and remained there until 8 o'clock the next morning.  She further stated that Clay could not have left her home during the evening because she was the only person who had a key to open the door to her home.  Clay himself took the stand and also testified that he was in his foster home the night of the murder.  Several rebuttal and surrebuttal witnesses then testified concerning Clay's alibi defense.

11
At the conclusion of the evidence, the trial judge instructed the jury that they could not consider the statements made by Dwyer while under hypnosis as evidence.  He further instructed the jurors that the tapes of the hypnosis sessions were to be considered "solely for the purpose of deciding whether any identification made by Dwyer was the product of his own recollection and not one that was suggested to him either deliberately or inadvertently."    He also cautioned the jury to consider the experts' testimony as to the effect of hypnosis on memory, and specifically on Dwyer's memory.  Finally, the trial judge told the jury, "[i]f you should find, based upon all of the evidence that you heard, that his recollection was his own;  then you may use it for whatever other purpose that you might have in connection with evaluation of his testimony.  If you are satisfied that it was not his own recollection beyond a reasonable doubt;  then you should, of course, reject it, and reject it in its entirety."

12
The jury found Clay and Watson guilty of first degree murder, and the Supreme Judicial Court of Massachusetts affirmed the conviction on appeal.1   Clay then filed a petition for writ of habeas corpus in the federal district court, and, after the court denied the petition, this appeal followed.

II.

13
Clay argues that the potential for effective cross-examination of a witness is destroyed by the process of hypnosis because hypnosis causes a witness to develop an unshakable confidence in the accuracy of his posthypnotic perception.  Clay claims that Dwyer reacted to his hypnotic experience in exactly this manner.  First, any doubt he may have had about the accuracy of his identification of Clay evaporated immediately after his first hypnosis.  Second, despite the increased certainty of his post-hypnotic recollection, Dwyer attributed his positive identification to his original observation.  Finally, Clay claims, Dwyer's increased confidence in the accuracy of his perception altered his demeanor as a witness.  Clay contends, therefore, that his counsel was unable to cross-examine Dwyer effectively as to his prehypnosis uncertainty in identifying Clay.

14
Clay's argument finds support in the numerous state cases that have noted the likelihood that hypnotic subjects will show increased confidence in the truth of their recollections under hypnosis regardless of whether such recollections are accurate.2   This increased confidence makes it difficult for a jury to determine the credibility of the witness.3   Moreover, the witness's honestly held belief in the accuracy of his post-hypnotic recollections makes efforts to question any prehypnotic doubts or discrepancies equally difficult.4   As the Fifth Circuit has noted, a witness, after hypnosis,

15
may have an unshakable subjective conviction that gives his account on the witness stand the imprimatur of absolute confidence.  Indeed, in a criminal trial, the witness's resultant undue confidence might violate the defendant's constitutional right to confront and cross-examine adverse witnesses, for an absolute conviction in the accuracy of his memory might make it "impossible to cross-examine [the] witness in any meaningful way."5

16
That Dwyer's hypnosis might have increased his confidence in his identification of Clay and made it more difficult for Clay's counsel to question him effectively does not necessarily mean that the admission of Dwyer's testimony violated Clay's sixth amendment right to confrontation.  The confrontation clause provides "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...."6  As construed by the Supreme Court, "a primary interest secured by [the clause] is the right of cross-examination."7   The Court has also stated that the two purposes served by cross-examination are to allow the defendant to impeach a witness's credibility and to expose a witness's biases and possible motives for testifying.8   Fulfillment of these two purposes is so central to the meaning of the confrontation clause that the Ninth Circuit has held that "once cross-examination reveals sufficient information to appraise the witness's veracity, confrontation demands are satisfied."9

17
In this case, Clay was sufficiently able to cross-examine Dwyer to assure him the safety that the sixth amendment provides.  First, Dwyer was available at trial.  He testified before the jury and was cross-examined, and there is no allegation that Dwyer was uncooperative or unresponsive to such questioning.  That Dwyer's subjective belief in the accuracy of his testimony might have been increased by hypnosis does not negate the fact that Clay's attorney was able to question the witness fully and extensively.  Counsel for Clay could probe Dwyer's testimony for inconsistencies, attack Dwyer's credibility, and portray Dwyer's demeanor in front of the jury as being artificial and solely the product of hypnosis.

18
Second, the fact that Dwyer had been hypnotized was placed squarely before the jury, the tapes of the sessions were introduced, and in addition, two experts offered substantial evidence as to the possible effects hypnosis might have had on Dwyer's testimony and recollections.  This evidence further enabled the jury to assess the credibility of the witness, and to evaluate the accuracy of his assertions.

19
Next, hypnosis produced only a limited change in Dwyer's testimony.  Before undergoing hypnosis, Dwyer had some confidence in his identification of Clay.  After hypnosis, Dwyer's degree of confidence increased to 100%:  he was then positive that Clay was one of the men he had seen enter Boyajian's cab the night of the murder.  This is not a case, therefore, involving testimony from a hypnotized witness as to matters not remembered before hypnosis.  Instead, the effect of hypnosis in this case was simply to increase the level of assuredness Dwyer had in his own prehypnotic recollection.10   As the Supreme Court recently observed in considering the argument that the right of confrontation was violated by the government's failure to produce evidence that might be useful in impeaching a witness, admitting this testimony "does not involve any direct restriction on the scope of cross-examination."11

20
Finally, we note the extensive instructions given the jury by the trial judge on the issue of hypnosis.  The judge explicitly told the jury not to consider Dwyer's comments made while under hypnosis as evidence, and to evaluate the experts' testimony on the effect of hypnosis on memory.  Most importantly, the judge told the jury only to use Dwyer's testimony if they were satisfied that his identification of Clay was a product of his own recollection and not the result of a hypnotically-induced suggestion.

21
Without determining the precise limits that federal constitutional constraints place on the admissibility of testimony of a previously hypnotized witness, we hold that, under the circumstances of this case, Dwyer's right to confront and cross-examine Dwyer was not violated.  Admission of Dwyer's testimony did not so impair Clay's right to cross-examination that the right to confront Dwyer was effectively denied.  Finding no merit in Clay's other allegations of error, the decision of the district court denying Clay's petition for writ of habeas corpus is AFFIRMED.

*
 Of the Fifth Circuit, sitting by designation

1
 Commonwealth v. Watson, 388 Mass. 536, 447 N.E.2d 1182 (1983)

2
 See, e.g., Commonwealth v. Kater, 388 Mass. 519, 528, 447 N.E.2d 1190, 1197 (1983);  People v. Shirley, 31 Cal.3d 18, 65, 181 Cal.Rptr. 243, 272, 641 P.2d 775, 803, cert. denied, 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114 (1982);  Commonwealth v. Nazarovitch, 496 Pa. 97, 105, 436 A.2d 170, 174 (1981);  State v. Mena, 128 Ariz. 226, 230, 624 P.2d 1274, 1278 (1981);  State v. Mack, 292 N.W.2d 764, 769 (Minn.1980)

3
 State v. Hurd, 86 N.J. 525, 540, 432 A.2d 86, 93-94 (1981);  People v. Gonzales, 108 Mich.App. 145, 160, 310 N.W.2d 306, 313-14 (1981), aff'd, 415 Mich. 615, 329 N.W.2d 743 (1982)

4
 See State ex rel. Collins v. Superior Court, 132 Ariz. 180, 188, 644 P.2d 1266, 1274 (1982)

5
 United States v. Valdez, 722 F.2d 1196, 1202 (5th Cir.1984), quoting State v. Mack, 292 N.W.2d 764, 769 (Minn.1980)
6 U.S. Const. amend. VI.

7
 Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974), quoting Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965).   See United States v. Jarabek, 726 F.2d 889, 902 (1st Cir.1984)

8
 Davis v. Alaska, supra, 415 U.S. at 316, 94 S.Ct. at 1110.   Accord Niziolek v. Ashe, 694 F.2d 282, 289 (1st Cir.1982);  United States v. Tracey, 675 F.2d 433, 437 (1st Cir.1982)

9
 United States v. Falsia, 724 F.2d 1339, 1343 (9th Cir.1983);  United States v. DeLuca, 692 F.2d 1277, 1282 (9th Cir.1982)

10
 See Commonwealth v. Kater, 388 Mass. 519, 447 N.E.2d 1190 (1983)

11
 United States v. Bagley, --- U.S. ----, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)


TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-09-00361-CV

In re Marvel Reed

ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY

O R D E R

		Relator has filed a petition for writ of mandamus and a motion for emergency relief
under Texas Rule of Appellate Procedure 52.10.  Relator's motion asks this Court to stay the
discovery order issued by the trial court on June 11, 2009, and extended on July 1, 2009, requiring
relator to produce bank records from January 1, 2001, to present, on or before July 10, 2009.  Relator
has filed a supplement to her request for emergency relief asking the Court to stay all proceedings
in the district court pending this Court's action on the petition for writ of mandamus.  We grant
Relator's motion to stay the district court's discovery order and all proceedings in the district court
pending further order of this Court.  See Tex. R. App. P. 52.10(b).

						__________________________________________
						Jan P. Patterson, Justice
Before Chief Justice Jones, Justices Patterson and Henson
     Justice Henson Dissenting

Filed: July 8, 2009


     Case: 14-20180      Document: 00512866096         Page: 1    Date Filed: 12/11/2014

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

                                                                               FILED
                                    No. 14-20180                       December 11, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
RILEY OLIVE,

                                                 Plaintiff-Appellant

v.

CLAY DEVELOPMENT & CONSTRUCTION,

                                                 Defendant-Appellee

                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CV-3181

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Riley Olive, proceeding in forma pauperis, appeals the dismissal of his
civil complaint. The district court construed Olive’s complaint as asserting
claims of age discrimination, see 29 U.S.C. § 631(a), and retaliation, see 42
U.S.C. § 2000e-3, as well as claims of assault, breach of implied contract, and
breach of the covenant of good faith and fair dealing arising under Texas law.
The district court dismissed with prejudice the federal claims pursuant to

       * 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: 14-20180    Document: 00512866096     Page: 2   Date Filed: 12/11/2014

                                 No. 14-20180

Federal Rule of Civil Procedure 12(b)(6). In addition, the court dismissed the
state law claims without prejudice, declining to exercise supplemental
jurisdiction over them.
      Olive provides no argument and cites no cases or statutes pertinent to
any claim raised in the district court. Consequently, he has abandoned any
appellate claims by failing to brief them. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987).
      AFFIRMED.

                                      2


   NOTE:   This disposition is nonprecedential.

United States Court of Appeals
    for the Federal Circuit
           __________________________

       TIMOTHY C. BENNINGTON,
              Petitioner,
                       and
              STEVEN R. HAYES,
                  Petitioner,
                       and
             TIMOTHY A. HUBAL,
                 Petitioner,
                       and
            RICHARD E. KIDWELL,
                 Petitioner,
                       and
              CARL C. WILLIAMS,
                  Petitioner,
                        v.
 MERIT SYSTEMS PROTECTION BOARD,
            Respondent,
                       and
   UNITED STATES POSTAL SERVICE,
             Intervenor.
           __________________________

                    2011-3222
BENNINGTON   v. MSPB                                    2

               __________________________

    Petition for review of the Merit Systems Protection
Board in consolidated case nos. CH0351100110-I-1,
CH0351100117-I-1, CH0351100119-I-1, CH0351100128-I-
1, and CH0351100127-I-1.
              ____________________________

                   Decided: May 9, 2012
              ____________________________

   TIMOTHY C. BENNINGTON, of Lancaster, Ohio, pro se.

   STEVEN R. HAYES, of Pataskala, Ohio, pro se.

   TIMOTHY A. HUBAL, of Byesville, Ohio, pro se.

   RICHARD E. KIDWELL, of Somerset, Ohio, pro se.

   CARL C. WILLIAMS, of Springfield, Ohio, pro se.

   CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC. With him on the brief were JAMES M. EISENMANN,
General Counsel and KEISHA DAWN BELL, Deputy General
Counsel.

    MICHAEL S. MACKO, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for Intervenor. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and BRIAN M. SIMKIN,
Assistant Director.
                __________________________
3                                       BENNINGTON   v. MSPB

    Before RADER, Chief Judge, DYK and PROST, Circuit
                         Judges.
PER CURIAM.
     Thomas C. Bennington, Steven R. Hayes, Timothy A.
Hubal, Richard E. Kidwell, and Carl C. Williams (collec-
tively, “petitioners”) appeal a final decision of the Merit
Systems Protection Board (“the Board”) dismissing their
adverse agency action appeals for lack of subject matter
jurisdiction. 1 Bennington v. U.S. Postal Serv. (“Final
Decision”), Nos. CH-0351-10-0110-I-1, -0117-I-1, -0119-I-
1, -0124-I-1, -0127-I-1, -0128-I-1 (M.S.P.B. July 27, 2011).
In its decision, the Board denied review of the initial
decision of the Administrative Judge (“AJ”) which had
dismissed petitioners’ appeals as moot, but sua sponte
dismissed petitioners’ appeals for lack of subject-matter
jurisdiction. Because we find that the issues raised in
this appeal are moot, we dismiss.
                       BACKGROUND
    Petitioners were Tractor Trailer Operators for the
United States Postal Service (“Postal Service”) in Colum-
bus, Ohio. In 2009, the Postal Service abolished all of the
Tractor Trailer Operator positions in Columbus when it
elected to contract out the functions normally performed
by persons in those positions. As a result, on October 10,
2009, petitioners were reassigned to Mail Handler posi-
tions. Petitioners appealed their reassignments to the
Board, alleging that they had suffered a reduction in pay
or grade or that they had been demoted pursuant to a
reduction in force. See 5 U.S.C. §§ 7512, 7513(d); 5 C.F.R.
§ 351.901. While petitioners’ appeals to the Board were
pending, the Postal Service rescinded petitioners’ Mail

    1  Petitioners’ appeals were consolidated by the
Board for disposition.
BENNINGTON   v. MSPB                                      4

Handler reassignments, retroactively restoring them to
their former positions as Tractor Trailer Operators for a
period of two weeks until they were reassigned to posi-
tions as Letter Carriers. 2 In so doing, the Postal Service
also removed all references to the Mail Handler reas-
signments from petitioners’ personnel files, and petition-
ers did not lose any pay or benefits as a result of their
reassignments.
     Based on its rescission of the Mail Handler reassign-
ments, the Postal Service moved to dismiss petitioners’
appeals as moot. On July 2, 2010, the AJ granted the
motion, finding that “the agency placed the [petitioners]
in the exact situation they would have been in if they had
won their [Board] appeals.” Bennington v. U.S. Postal
Serv. (“Initial Decision”), Nos. CH-0351-10-0110-I-1, -
0112-I-1, -0115-I-1, -0116-I-1, -0117-I-1, -0119-I-1, -0124-
I-1, -0127-I-1, -0128-I-1, slip op. at 4 (M.S.P.B. July 2,
2010). The AJ also noted that “[t]he Board has no author-
ity to order the agency to re-establish [the Tractor Trailer
Operator] positions or to review an agency’s decision to
contract out functions it formerly performed.” Id. The AJ
advised petitioners that if they wished to challenge their
subsequent reassignment to Letter Carrier positions, they
should file a separate appeal. Id. at 6.
    On July 21, 2010, petitioners petitioned the Board for
review of the AJ’s initial decision. Additionally, on Au-
gust 24, 2010, in response to the AJ’s comment, petition-
ers filed separate appeals challenging their reassignment

   2    Petitioners were restored to their former positions
on paper only because the actual Tractor Trailer Operator
positions had already been abolished. During the two
weeks that petitioners were classified as Tractor Trailer
Operators, they did not perform any of the duties or
responsibilities of a Tractor Trailer Operator, but actually
attended Letter Carrier training.
5                                       BENNINGTON   v. MSPB

to the Letter Carrier positions as a reduction in grade or
pay or a demotion due to a reduction in force. In a June
30, 2011, final decision, these subsequent appeals were
dismissed by the Board for lack of jurisdiction because the
Board found that petitioners’ Letter Carrier reassign-
ments were not appealable actions. See Bennington v.
U.S. Postal Serv., Nos. CH-3330-10-0938-I-1, -0939-I-1, -
0940-I-1, -0941-I-1, -0942-I-1 (M.S.P.B. June 30, 2011).
Petitioners failed to timely appeal the Board’s decision
dismissing their appeals of their Letter Carrier reassign-
ments within sixty days. Accordingly, that decision is
now binding on them. See Carson v. Dep’t of Energy, 398
F.3d 1369, 1375 (Fed. Cir. 2005).
     On July 27, 2011, after the Board’s final decision on
petitioners’ Letter Carrier reassignments, but before the
time to appeal that decision had expired, the Board issued
its final decision on petitioners’ Mail Handler reassign-
ments. The Board declined to “decide whether the [AJ]
properly dismissed these appeals as moot,” and sua
sponte dismissed petitioners’ appeals “for lack of jurisdic-
tion upon finding that the record is fully developed on the
question of whether the Board has jurisdiction over
[petitioners’] assignments to the Mail Handler positions
as demotions by reduction in force (RIF) or reductions in
grade or pay.” Final Decision, slip op. at 2-3. Specifically,
the Board found that the representative rates for the Mail
Handler positions were greater than those for the Tractor
Trailer Operator positions, and thus, “there [was] no
indication that the [petitioners] were demoted by RIF.”
Id. at 4. Similarly, the Board found that petitioners had
failed to establish that they were reduced in grade or pay
under 5 U.S.C. § 7512. Id. at 5. This appeal followed. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
BENNINGTON   v. MSPB                                        6

                        DISCUSSION
    Our review of Board decisions is limited. We may
only set aside agency actions, findings, or conclusions that
we find to be “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c); see also Bennett v. Merit
Sys. Prot. Bd., 635 F.3d 1215, 1218 (Fed. Cir. 2011). “The
[Board’s] determination that it lacked jurisdiction is a
question of law that the court reviews de novo.” Bennett,
635 F.3d at 1218. Petitioners bear the burden of proof to
establish jurisdiction over their appeals. See 5 C.F.R.
§ 1201.56(a)(2)(i).
    The Board dismissed petitioners’ appeals on a differ-
ent ground from that adopted by the AJ. Rather than
dismissing the appeals as moot, the Board held that
petitioners had not established that they had been moved
to positions with a lower “rate of pay” than their previous
Tractor Trailer Operator positions, as required to estab-
lish either a reduction in pay or grade or a demotion
pursuant to a reduction in force.            See 5 U.S.C.
§ 7511(a)(3)-(4) (defining “grade” as “level of classification
under a position classification system,” and “pay” as “the
rate of basic pay fixed by law or administrative action”); 5
C.F.R. § 210.102(b)(4) (defining “demotion” as “a change of
an employee . . . [t]o a position with a lower rate of pay”).
On review in this court, petitioners argue that the repre-
sentative rates relied upon by the Board in making this
determination were not the correct rates that should have
been applied for purposes of determining whether peti-
tioners were moved to positions with a lower rate of pay.
    We need not decide whether the Board applied the
correct representative rates of pay in comparing the
7                                       BENNINGTON   v. MSPB

Tractor Trailer Operator and Mail Handler positions,
because no live case or controversy is presented. “If an
appealable action is canceled or rescinded by an agency,
any appeal from that action becomes moot.” Cooper v.
Dep’t of the Navy, 108 F.3d 324, 326 (Fed. Cir. 1997).
Restoration of petitioners to their previous positions,
without lost pay or benefits, and removal of all references
to the reassignment in their records, would have “elimi-
nated all the consequences of [those] action[s] and thus
rendered [petitioners’] appeal[s] moot.” Id. In this case,
the original Tractor Trailer Operator positions were no
longer available, so petitioners were restored to their
previous positions on paper only. Under those circum-
stances, the employee cannot object to transfer to an
equivalent position. See Local 2855 v. United States, 602
F.2d 574, 584 (3d Cir. 1979) (“Nothing in the civil service
statute or regulations prohibits the government from
abolishing positions held by veterans or other civil ser-
vants and contracting out the work previously performed
by them.”). However, petitioners argue that the Letter
Carrier positions to which they were actually transferred
have different duties and rates of pay, and thus are not
equivalent positions. Where there is a dispute about the
equivalence of the positions, the employee’s appeal is not
moot. See Kerr v. Nat’l Endowment for the Arts, 726 F.2d
730, 733 & n.3 (Fed. Cir. 1984) (“The injured party is to be
placed, as near as may be, in the situation he would have
occupied if the wrong had not been committed.” (quoting
Wicker v. Hoppock, 73 U.S. (6 Wall.) 94, 99 (1867))).
    Thus, the lack of equivalence in the positions was cer-
tainly a proper issue to raise in the first appeal. Petition-
ers’ problem is that they chose to raise the issue of their
transfer to Letter Carrier positions in a separate appeal,
which has now been resolved adversely. Under such
circumstances, this aspect of the original appeal becomes
BENNINGTON   v. MSPB                                      8

moot. See generally In re Scruggs, 392 F.3d 124, 129 (5th
Cir. 2004) (holding that where a judgment in another
matter “lying at the heart of [the] federal litigation” at
issue “became final and no longer appealable . . . the
Article III case or controversy in the federal courts ceased
to exist”).
    Petitioners have received the amount of back pay that
they claimed, and the transfer issue has been resolved
against them. The case is moot. See Hernandez v. Dep’t
of the Air Force, 498 F.3d 1328, 1333 (Fed. Cir. 2007)
(noting that claims are moot where a party “has already
received complete relief under them”).
                          COSTS
   No costs.


158 F.2d 317 (1946)
KRUG, Secretary of the Interior, et al.
v.
SANTA FE PAC. R. CO. et al.
No. 9167.
United States Court of Appeals District of Columbia.
Argued March 27, 1946.
Decided October 21, 1946.
Mr. Ernest F. Hom, Principal Attorney, Office of the Solicitor, Department of the Interior, of Washington, D. C., with whom Messrs. Warner W. Gardner, Solicitor, and Harry M. Edelstein, Assistant Solicitor, Department of the Interior, both of Washington, D. C., were on the brief, for appellants. Mr. Sidney B. Jacoby, Senior Attorney, Office of the Solicitor, of Chicago, Ill., also entered an appearance for appellants.
Mr. Lawrence Cake, of Washington, D. C., for appellees.
Before GRONER, Chief Justice, and EDGERTON and CLARK, Associate Justices.
GRONER, C. J.
This is an appeal from a final judgment of the District Court, granting plaintiffs' and denying defendants' motions for summary judgment. Plaintiffs, Santa Fe Railroad Company and Aztec Land and Cattle Company (hereinafter called "Santa Fe" and "Aztec," respectively), brought this action in the District Court for an injunction restraining defendants, Secretary of the Interior and Commissioner of the General Land Office, from rejecting plaintiffs' application for a patent to some 98,000 acres of land in the State of Arizona. A condensed statement of the facts follows:
Santa Fe is the successor in interest of Atlantic and Pacific Railroad Company. Congress, by Act of July 27, 1866, 14 Stat. 292, granted to the latter the odd numbered sections of public land on either side of its projected line of railroad within certain limits, known as "place limits." The Act granted also the right to select within designated limits known as "indemnity limits" sufficient lands to make up any deficiency arising from homestead preemptions, etc., of lands within the place limits. On February 3, 1886, while the land within the indemnity limits was unsurveyed, Atlantic and Pacific contracted to sell to Aztec certain lands within both the place and indemnity limits, and in 1886 and again in 1894 conveyed as much of the land as was then surveyed. In 1905 Santa Fe, as successor of Atlantic and Pacific, quit-claimed to Aztec the remainder of the land covered *318 by the original contract, including the land here in issue. But in 1898 these latter lands had been withdrawn by Executive Order as a forest reserve.
On September 18, 1940, Congress enacted and the President approved the Transportation Act of 1940.[1] The purpose of the Act was to relinquish the existing right of the United States to reduced rates on property carried for the Government by land grant railroads and in return to secure the release by the railroads of all their existing rights to lands or interest in lands granted to them, but as to which title had not then passed. The Act, however, provided:
"Nothing in this section shall be construed * * * to prevent the issuance of patents confirming the title to such lands as the Secretary of the Interior shall find have been heretofore sold by any such carrier to an innocent purchaser for value * * *."
On December 18, 1940, Santa Fe made and filed the release required by the Act, reserving therefrom all lands sold to innocent purchasers for value prior to September 18, 1940. Together with this release Santa Fe filed a full description of the lands so sold, including those sold to Aztec. On June 26, 1942, Santa Fe filed selections in the form prescribed by the Secretary of Interior of the land previously sold to Aztec. The Commissioner of the General Land Office rejected the application on the ground that the land sought to be patented had not been ascertained and identified prior to the filing by the Railroad of the release and that accordingly Aztec was not protected under the saving clause of the Act. The decision of the Commissioner was affirmed by the Secretary and rehearing was denied.
On March 16, 1944, Santa Fe filed its complaint in the present suit, seeking an injunction restraining the Secretary from rejecting the selection of lands and the application for the patent and praying for a writ in the nature of mandamus directing him to proceed to determine the right of Santa Fe to have patented the lands in question, notwithstanding the release. The Secretary and his codefendants, without then or thereafter answering the complaint, filed the following motion for summary judgment:
"The defendants move the court for a summary judgment in their favor because there is no genuine issue as to any material fact and the defendants are entitled to judgment as a matter of law. * * *"
Thereupon Santa Fe likewise filed a motion for summary judgment which recited:
"The plaintiffs move the Court for a summary judgment in their favor on the ground that the pleadings filed herein, namely (1) the complaint, and (2) the defendants' motion for summary judgment and exhibits 1-5 attached thereto, show that there is no genuine issue as to any material fact and the plaintiffs are entitled to judgment granting the relief prayed, as a matter of law."[2]
The Secretary later, but before hearing, filed the affidavit of the then Assistant Secretary as follows:
"* * *
"2. In its decisions of January 8, 1944, and February 8, 1944, the Department had no occasion to pass upon and made no determination as to the truth or falsity of the allegation of paragraph 11 of the complaint that the losses in place lands have exceeded the surveyed lands within the indemnity limits of the grant at all times since before August 17, 1898, or the allegations of paragraph 20 of the complaint that the lands in question are `non-mineral public lands, not reserved, sold, granted, or otherwise lawfully appropriated, and free from preemption or other claims or rights' and that plaintiff Aztec Land and Cattle Company, Ltd., is an innocent purchaser for value of such lands, for the reason that the Department was of the opinion that the release filed by the plaintiff, Santa Fe Pacific Railroad Company *319 on December 18, 1940, pursuant to the Transportation Act of 1940, without more, barred plaintiffs' right to the land in question. Defendants are consequently without knowledge or information sufficient to form a belief as to the truth of these allegations and, therefore, deny the same."
In reaching our conclusion we have assumed that this affidavit does not constitute "a pleading in answer" to the complaint. But even if we are wrong in this respect, the result we reach would be the same.
The case was then submitted on complaint, motion and cross motion and, after argument, the court denied the Secretary's motion, granted that of Santa Fe, and entered final judgment accordingly.
On this appeal the first question for decision is whether on these pleadings the court might properly enter a final decree.
As we have indicated in the foregoing statement of facts, Santa Fe's case as shown in its complaint was predicated on the facts  (1) that its sale to Aztec was in all respects bona fide and to an innocent purchaser for value, and (2) that on the date of the sale and at all times thereafter the losses in the place limits of the grant exceeded the surveyed land within the indemnity limits available for selection, and therefore there had been a deficiency in the grant since some time prior to August 17, 1898 (the time of withdrawal for forest reserve), which has at no time been less than one hundred thousand acres. To this pleading the Secretary, as we have pointed out, filed no answer.
In this state of the record we are of opinion that even though the motions of both plaintiffs and defendants in precise words state that "there is no genuine issue as to any material fact," the judgment was improperly entered for Santa Fe. Rule 56(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, authorizing the court to grant summary judgment for the claimant is conditioned upon the filing of a "pleading in answer." The language of the Rule is: "A party seeking to recover upon a claim (i. e. the plaintiff) * * * may, at any time after the pleading in answer thereto has been served, move * * * for a summary judgment." (Italics supplied.) The defendant, on the other hand, may, by the terms of the Rule, "at any time, move * * * for a summary judgment in his favor * * *." (Italics supplied.) If the language of Rule 56(a) is to be taken literally, obviously the motion of the plaintiffs in this case was premature; and that it should be taken literally has been decided by all the courts in which the question has arisen so far as we know. See: Peoples Bank v. Federal Reserve Bank of San Francisco, D.C., 58 F.Supp. 25; Viking Press v. Goldman, D.C., 38 F.Supp. 1014; Latrobe Electric Steel Co. v. Fansteel Metallurgical Corporation, D.C., 55 F.Supp. 402. See also  3 Moore's Federal Practice (1938) 3181, and 1945 Supp. 174. In each of the cases cited it was held that plaintiff's motion for summary judgment filed after the defendant had moved for summary judgment, but before the defendant had filed an answer, did not accord with the provisions of the Rule. Counsel for Santa Fe cite Steiner v. United States, D.C., 36 F.Supp. 496, and Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013, as tending to show that there may be exceptional cases in which the Rule does not apply. But be that as it may, there exists nothing here to make this case exceptional and, moreover, in both the cited cases answers had been filed by the defendant. In the recent case of Walling v. Richmond Screw Anchor Co., 154 F.2d 780, the Second Circuit construed the Rule to afford the defendant an opportunity, after motion and cross motion for summary judgment, to show that there exists a genuine issue as to material facts. The reason for this is that the mere fact that both the plaintiff and defendant move for summary judgment does not assure that there is no issue of material fact to be resolved. At most, the defendant asserts by virtue of his motion that, accepting his legal theory, no issue of fact is presented. Hence it follows that if a differing legal theory of the plaintiff be accepted, the defendant should nevertheless be accorded an opportunity to show that there exists a dispute of fact essential to the complainant's case. That is this case. The Secretary, the defending party, on his motion for summary *320 judgment, argued  and now insists  that the existence of a deficiency of indemnity land to make up losses in place is not material, since without selection Santa Fe had no interest in the land which could have been conveyed to Aztec. But the Secretary asserted that if Santa Fe's theory  that selection is unnecessary when a deficiency exists  is correct, he was not prepared to admit the fact of deficiency. In the face of such a dispute of fact, summary judgment was not available to Santa Fe. See: Wyant v. Crittenden, 72 App.D.C. 163, 113 F.2d 170, and Doehler Metal Furniture Co. v. United States, 2 Cir., 149 F.2d 130. From this it follows that the court erred in granting Santa Fe's (plaintiff's) motion for judgment.
This then brings us to the further question whether the court was correct in denying the Secretary's motion. As we have seen, it was the contention of the Secretary that irrespective of the existence of a deficiency, Santa Fe could have acquired no interest in the lands conveyed to Aztec without a formal selection. If this is correct as a matter of law, obviously, the Secretary's motion for judgment should have been granted. If it is incorrect, equally obviously, it should have been  as it was  denied. We are of opinion that the District Court was right. While it is true that, as a general rule, selection is necessary to vest any right to specific indemnity land in the grantee, the Supreme Court has long recognized an exception where there is a deficiency of indemnity land to satisfy losses in place. This, we think, is decided in United States v. Northern Pacific R. R. Co., 256 U.S. 51, 65, 41 S.Ct. 439, 442, 65 L.Ed. 825, where the Court said:
"While it often has been said that under such a grant no right attaches to any specific land within the indemnity limits until it is selected, an examination of the cases will show that this general rule never has been applied as between the Government and the grantee where the lands available for indemnity were not sufficient for the purpose. Its only application has been where either the rights of settlers were involved, or the lands available for indemnity exceeded the losses, thereby making it essential that there be a selection and identification of the particular lands sought to be taken. This distinction is illustrated in St. Paul & Pacific R. Co. v. Northern Pacific R. R. Co., 139 U.S. 1, 11 S.Ct. 389, 35 L.Ed. 77. The question there presented was whether there was any need for a selection where no right of a settler was involved and the lands available for indemnity were not sufficient to supply the losses. By reason of this insufficiency it was ruled that the lands in the indemnity limits necessarily were appropriated to satisfy the losses and that no selection was required."
See also: United States v. Southern Pacific R. Co., 223 U.S. 565, 32 S.Ct. 326, 56 L.Ed. 553; United States v. Colton Marble & Lime Co., 146 U.S. 615, 13 S.Ct. 163, 36 L.Ed. 1104.
Nor does the fact that the particular lands were withdrawn for inclusion in a national forest reserve operate to defeat the rights Santa Fe may have had in the lands. United States v. Northern Pac. R. Co., 311 U.S. 317, 61 S.Ct. 264, 85 L.Ed. 210. Accordingly, we think that, in the circumstances described in the complaint,  if proved on the trial  the lands here involved are identified without the formality of selection, as the result of which the right of Santa Fe attached and the issuance of patents became a duty of the Secretary of the Interior. See St. Paul & Pacific R. Co. v. Northern Pacific R. Co., 139 U.S. 1, 11 S.Ct. 389, 35 L.Ed. 77.
From the foregoing it becomes necessary to affirm the decision of the trial court overruling the Secretary's motion for judgment, and at the same time to reverse the final judgment in favor of Santa Fe and remand the case for trial on the merits, if and when an answer is filed by the Secretary.
Reversed in part; affirmed in part; and remanded for further proceedings in accordance with this opinion.
NOTES
[1]  54 Stat. 954, 49 U.S.C.A. § 65.
[2]  The pleadings referred to in the motion were copies of the Secretary's opinion rejecting plaintiff's application, the Secretary's refusal to reconsider, and copies of plaintiff's contract of sale and quit-claim deed to Aztec, and have no relevancy to the question under consideration.


917 F.2d 24
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Larry N. BODE, Plaintiff-Appellant,v.John GLUCH, Defendant-Appellee.
No. 90-1238.
United States Court of Appeals, Sixth Circuit.
Oct. 23, 1990.

Before MERRITT, Chief Judge, and BOYCE F. MARTIN, Jr. and ALAN E. NORRIS, Circuit Judges.

ORDER

1
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.  Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed.  Fed.R.App.P. 34(a).

2
This pro se federal prisoner appeals the dismissal of his Bivens --type action as frivolous pursuant to 28 U.S.C. Sec. 1915(d).  Seeking solely monetary relief, plaintiff sued the warden at the Federal Correctional Institution in Milan, Michigan, asserting civil rights violations arising out of his incarceration in the federal prison system.  Plaintiff filed three incomprehensible complaints.

3
In his first complaint, he alleged that some of his property was lost or destroyed during his transfer from Milan, Michigan to Terre Haute, Indiana.  Plaintiff blamed the loss and destruction of his property on the negligence of a guard at the Milan facility and on the negligent supervision of the defendant.  In his second complaint, plaintiff alleged that he has been transferred arbitrarily and without justification.  He also claimed that he should not have been transferred to the Terre Haute facility which, he asserts, has cruel and inhumane conditions because of its overcrowded condition and dangerous inmates.  He further claimed that he was placed in segregation without due process.  In his third complaint, plaintiff alleged that his confinement establishes "the complicity of conspiracy" between prison staff and that an assault and battery against him by his roommate indicates "contributing negligence."

4
The district court determined that plaintiff's claims were baseless and dismissed the complaint as frivolous.  The court held:  1) that plaintiff's principal allegation that the "defendants" negligently lost his property did not rise to the level of a constitutional violation, see Daniels v. Williams, 474 U.S. 327, 334 (1986);  2) that plaintiff could not recover damages against the defendants on respondeat superior basis, see Monell v. New York City Dep't of Social Services, 436 U.S. 658, 691-95 (1978);  Ellis v. Blum, 643 F.2d 68, 85 (2d Cir.1981);  3) that plaintiff's complaints regarding his transfer, his segregation, his roommate's assault and the prison conditions at Terre Haute were mere conclusory allegations of unconstitutional conduct without specific factual support, see Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir.1986);  and 4) that plaintiff had not exhausted administrative remedies with regard to his claims against the defendants under the Federal Tort Claims Act, see 28 U.S.C. Sec. 2675(1).  Plaintiff's subsequent motion for reconsideration was denied by the district court on January 19, 1990.

5
Upon consideration, we conclude that the district court properly dismissed the complaint.  Accordingly, the district court's order is hereby affirmed for the reasons stated in the district court's order dated October 30, 1989.  Rule 9(b)(5), Rules of the Sixth Circuit.