WOODSON R. HART, Plaintiff-Appellant,
v.
KENNETH B. HODGES, III, in his individual capacity, WILLIAM AMIDEO, in his individual capacity, and FREDERICK HEAD, in his individual capacity, Defendants-Appellees.
No. 09-12257. Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
November 17, 2009.
Before HULL, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM.
Plaintiff-Appellant Woodson R. Hart ("Hart"), previously convicted of state and federal charges of bribery and perjury, filed suit against the Defendants-Appellees for allegedly violating his constitutional rights by having him transferred from federal to state custody at the end of his federal sentence. The three Defendants are Kenneth B. Hodges, III, former District Attorney of Dougherty County, Georgia ("Hodges"), William Amideo, the General Counsel of the Georgia Department of Corrections ("Amideo"), and Warden Frederick Head of the Jackson State Prison in Georgia ("Head"). The district court granted the Defendants' motion for judgment on the pleadings on the ground that absolute immunity prevented all civil liability against them. After review, we affirm in part, vacate in part, and remand.

I. FACTUAL BACKGROUND
Hart's 175-paragraph Second Amended Complaint alleges these facts.[1]

A. Hart's Plea Agreements
Plaintiff Hart was the Assistant Chief of Police of the Dougherty County, Georgia Police Department. In 2000, in federal court in Georgia, Hart was indicted on three felony charges of false declaration before a grand jury, wire fraud, and engaging in monetary transactions in property derived from a specific unlawful activity, all in connection with an unlawful payment he allegedly received in exchange for declining to investigate a blackmail scheme. Around the same time, Hart also was indicted on eight state felony charges in state court, all arising out of the same events.
Hart entered into plea negotiations with the prosecuting Assistant United States Attorney in the federal case and Defendant Hodges in the state case. Pursuant to plea agreements in both cases, Hart agreed to plead guilty in exchange for a recommendation from the Assistant United States Attorney for a federal sentencing range of 18 to 24 months' imprisonment, followed by supervised release. Hart agreed to plead guilty in exchange for an agreement that his state sentence would be the same as his federal sentence and that the state and federal sentences would run concurrently. On February 27, 2001, the federal district court sentenced Hart to 27 months' imprisonment.
The "State Plea and Sentence Recommendation," signed two days after Hart's federal sentencing, stated that District Attorney Hodges would recommend a total state sentence of 10 years, to be served by a term "in Prison/Jail [of] 27 months," concurrent with the "Federal sentence," followed by a term of probation of 93 months.[2]
On March 1, 2001, Plaintiff Hart appeared at a sentencing hearing in the state case. Defendant Hodges explained the 27-month federal sentence and stated that Hart's agreement with the state called for a sentence of 27 months followed by 93 months of probation, to run concurrent with his federal sentence. Hodges and the state trial court agreed with Hart's attorney's statement that Hart would receive no more time to serve under the state sentence than under the federal sentence:
[HART'S COUNSEL]: Your Honor, I  I  everything Mr. Hodges said, of course, is true. The only thing I would like to add to that is that, as the plea agreement points out, the sentence to be handed down by Your Honor is to run concurrent with the Federal sentence, so that actually he's getting no more time to serve that [sic] what he's already serving in the Federal institution.
THE COURT: Okay.
MR. HODGES: I though [sic] I'd said that, but that's correct.
[HART'S COUNSEL]: You may have. If so I . . .
MR. HODGES: That is correct.

B. Detainer Lodged Against Hart
On April 16, 2001, Hart began serving his 27-month federal sentence at the Federal Correctional Institution in Forrest City, Arkansas (the "federal prison"). At some point during his federal detention, federal prison officials decided Hart would be released from the federal prison after a term of 24 months, three months earlier than the full 27-month sentence. This meant Hart's federal release would be on March 14, 2003. Defendant Hodges "prevailed upon" the Georgia Department of Corrections (the "Georgia DOC") to issue a State Warrant, dated June 6, 2001 (the "first state warrant"), to be lodged as a detainer against Hart so that he would be detained upon his release from the federal prison.

C. State Court Removes Detainer
In January 2003, Hart filed a motion for a new hearing on his sentencing with the state trial court judge who sentenced Hart originally. Defendant Hodges appeared at the state court hearing on Hart's sentencing motion. On February 20, 2003, the state trial court ordered (1) that the detainer placed against Hart by the Georgia DOC (through Hodges's actions) be removed; and (2) that: "Hart will serve no additional time in any state correctional facility once he is released March 14, 2003 from the federal facility where he is currently serving" (hereinafter, the "second state sentence").
On March 12, 2003, Defendant Hodges filed a notice of appeal of the state trial court's February 20, 2003 second state sentence.
At the prompting of Defendants Hodges or Amideo, the Georgia DOC issued a second "State Warrant," dated March 12, 2003, instructing federal prison officials and Arkansas state law enforcement officials to "retake [Hart] wherever he may be found for his return to the State Penitentiary of Georgia" (the "second state warrant"). Defendant Hodges also allegedly called the Sheriff's Office of Cross County, Arkansas, where the federal prison is located, and persuaded law enforcement officers there to detain Hart upon his release from federal custody, to transfer him to the Cross County, Arkansas Jail, and to hold him until Hodges could arrange for Hart to be transported to Georgia.

D. Events of March 14-17, 2003
Hart was released from the federal prison at approximately 8:00 a.m. on Friday, March 14, 2003. An officer from the Cross County, Arkansas Sheriff's Office picked up Hart from the federal prison, detained Hart in shackles, and transported him to the Cross County Jail.
On March 14, 2003, Defendant Amideo faxed a copy of the second state warrant to the Cross County Sheriff's Office and instructed Cross County officials to detain Hart until he could be taken into custody by officers of Dougherty County, Georgia, or, if he could not be detained, that he be served with an enclosed copy of a notice to surrender. The separate notice to surrender, dated March 14, 2003, and also signed by Amideo, ordered Hart to surrender to the Jackson State Prison in Jackson, Georgia (the "Georgia prison") at 8:00 a.m. on Monday, March 17, 2003. It further informed Hart: "Failure to surrender at the above appointed place and time may result in the violation of any existing conditions of probation which you have and/or the commission of a new offense of escape from custody."
At approximately 4:30 p.m. on March 14, 2003, Hart was released from the Cross County Jail because Cross County officials confirmed Hart's assertion that the Georgia trial court's order (albeit under appeal) had ordered Hart released following his federal incarceration. Hart traveled back to Georgia on his own.

E. Hart's Incarceration in the Georgia Prison
On or about March 14, 2003, Defendant Hodges discussed Hart's incarceration with a reporter from the Albany Herald. In an article printed on March 15, 2003, Hodges is quoted as saying Hart could be charged with escape if he failed to report to the Georgia prison on Monday, March 17, 2003. Hodges is also quoted in the article as taking the position that his appeal of the Georgia trial court's sentencing order had the effect of nullifying the order and reinstating the detainer against Hart.
Hart surrendered at the Georgia prison at 8:00 a.m. on Monday, March 17, 2003.

F. Expedited Appeal to the Georgia Court of Appeals
On the morning of March 17, 2003, Hart filed an Extraordinary Motion for Expedited Appeal with the Georgia Court of Appeals seeking to secure his release. Defendant Hodges responded the same day, asserting that his previous notice of appeal of the state trial court's sentencing order acted as a supersedeas and suspended the effect of the second state sentence. Hodges also asserted the second state sentence was void.
Before 5:00 p.m. on March 17, 2003, the Georgia Court of Appeals ruled that Hart must be released "instanter" from the Georgia prison. Its order stated:
[T]he District Attorney is not free to disregard the orders of the Dougherty Superior Court or to seek detainer against Hart . . . .
The District Attorney contends that, by filing a notice of appeal, the trial court's original order clarifying Hart's sentence was immediately rendered null and void. This contention is patently erroneous . . . .
The District Attorney simply has no authority to subjugate an order of the Superior Court to his own will, thereby circumventing the orderly imposition of justice.. . . .
Given the fact that Hart has completely served his time under the existing order of the trial court, the State has no lawful authority to incarcerate him at this time.
Hart alleges the Chief Clerk of the Georgia Court of Appeals faxed a copy of its order to the Georgia prison at approximately 5:00 p.m. on March 17, 2003 and also telephoned the Georgia prison and explained to an unknown employee that "instanter" in the order meant instantly.
Hart was released from the Georgia prison at approximately 12:25 p.m. on March 18, 2003, after approximately 28.5 hours of incarceration.
On August 28, 2003, the Georgia Court of Appeals issued a full decision on the merits of Defendant Hodges's appeal. State v. Hart, 263 Ga. App. 8, 587 S.E.2d 164 (Ga. Ct. App. 2003). The Court of Appeals determined the state trial court's second state sentence  stating that Hart would serve no additional time in a state prison after his federal release  was void because it was for an indeterminate period of time, in violation of Georgia law. Id. at 9, 587 S.E.2d at 166. The Court of Appeals vacated that second state sentence and remanded for re-sentencing. Id. Because the Georgia DOC's detainer was based on a void sentence, the Georgia Court of Appeals affirmed the portion of the state trial court's sentencing order removing the detainer. Id. On October 9, 2003, the state sentencing court held another sentencing hearing and sentenced Hart to time served.

G. District Court Proceedings
Plaintiff Hart filed this action on March 11, 2005. In his Second Amended Complaint, Hart alleges claims against Defendants Hodges, Amideo, and Head, in their individual capacities, for violations of his constitutional rights under the Fourth, Fifth, and Fourteenth Amendments pursuant to 42 U.S.C. §§ 1983, and for battery and conspiracy under Georgia law.[3]
Defendants Hodges, Amideo, and Head moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).[4] The Defendants argued that they were immune from suit because of absolute prosecutorial immunity and, in the event absolute immunity did not apply, that they were entitled to qualified immunity.
On March 30, 2009, the district court granted the Defendants' motion for judgment on the pleadings on the basis that Defendants Hodges, Amideo, and Head were immune from suit through the doctrine of absolute immunity. The federal claims having been dismissed, the district court also dismissed Hart's pendent state law claims without prejudice for lack of jurisdiction. The district court did not address whether the Defendants were entitled to qualified immunity.
Hart filed this timely appeal.

II. DISCUSSION

A. The Doctrine of Absolute Prosecutorial Immunity
In Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984 (1976), the Supreme Court considered whether traditional common-law immunities for prosecutors, which derived from immunities recognized for judges, applied to civil cases brought under 42 U.S.C. § 1983. The Supreme Court concluded that they did. Id. at 427-28, 96 S. Ct. at 993-94 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (L. Hand, J.) ("In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.")). The Supreme Court has explained that the common law gives absolute immunity in § 1983 actions for activities that are "`intimately associated with the judicial phase of the criminal process.'" Van de Kamp v. Goldstein, 129 S. Ct. 855, 860 (2009) (quoting Imbler, 424 U.S. at 430, 930 S. Ct. at 995); accord Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999).[5]
"[A] functional approach has evolved to determine whether executive branch public officials should be granted absolute immunity for taking particular actions, or whether they should enjoy instead only the qualified immunity normally afforded public officials." Jones, 174 F.3d at 1282. This functional approach looks to the nature of the function performed, not to the identity of the person who performed it. Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S. Ct. 2606, 2613 (1993). Under this functional analysis, executive branch officials are entitled to absolute immunity for certain functions intimately associated with the judicial process. Van de Kamp, 129 S. Ct. at 861.
Subsequent Supreme Court decisions established outer bounds on what activities qualify for prosecutorial immunity and to which individuals it applies. Prosecutorial immunity applies, for instance, to the prosecutor's actions in initiating a prosecution and presenting the State's case. Imbler, 424 U.S. at 431, 96 S. Ct. at 995. A prosecutor is immune for malicious prosecution. Malley v. Briggs, 475 U.S. 335, 342-43, 106 S. Ct. 1092, 1097 (1986).[6] Prosecutors are immune for appearances before a court and conduct in the courtroom, including examining witnesses and presenting evidence in support of a search warrant during a probable cause hearing. Burns v. Reed, 500 U.S. 478, 490-92, 111 S. Ct. 1934, 1942 (1991); Kalina v. Fletcher, 522 U.S. 118, 126, 118 S. Ct. 502, 507-08 (1997); see also Van de Kamp, 129 S. Ct. at 861. Prosecutors are also immune from damages claims alleging failure to institute a system of information-sharing among deputy district attorneys regarding confidential jailhouse informants. Van de Kamp, 129 S. Ct. at 863-64 ("The management tasks at issue, insofar as they are relevant, concern how and when to make impeachment information available at trial. They are thereby directly connected with the prosecutor's basic trial advocacy duties.").
Applying these principles, our circuit has emphasized that, "[a] prosecutor enjoys absolute immunity from allegations stemming from the prosecutor's function as advocate." Jones, 174 F.3d at 1281. Such absolute immunity "extends to a prosecutor's acts undertaken in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State." Id. (quotation marks omitted); accord Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1279 (11th Cir. 2002). "Although absolutely immune for actions taken as an advocate, the prosecutor has only qualified immunity when performing a function that is not associated with his role as an advocate for the state." Jones, 174 F.3d at 1281-82; accord Rowe, 279 F.3d at 1279-80 (prosecutor who proferred perjured testimony and fabricated exhibits at trial is entitled to absolute immunity, but a prosecutor who participated in the search of a suspect's apartment is entitled to only qualified immunity). Prosecutors have absolute immunity when "filing an information without investigation, filing charges without jurisdiction, filing a baseless detainer, offering perjured testimony, suppressing exculpatory evidence, refusing to investigate . . . complaints about the prison system, [and] threatening . . . further criminal prosecutions. . . ." Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir. 1979);[7] accord Marx v. Gumbinner, 855 F.2d 783, 789 n.10, 790 (11th Cir. 1988) (concluding that prosecutors have absolute immunity for rendering legal advice to police officers concerning the existence of probable cause to arrest).
This immunity may extend to certain post-sentencing conduct of a prosecutor. Bruce v. Wade, 537 F.2d 850, 852 (5th Cir. 1976) (concluding that prosecutor had absolute immunity for presentation of evidence at post-sentencing federal habeas corpus proceedings); Allen, 815 F.2d at 1434 (concluding that prosecutor had absolute immunity for giving information about a defendant to the Parole Commission in regard to whether to grant parole to the defendant serving a federal sentence). In Allen v. Thompson, this Court reasoned that, "[p]arole decisions are the continuation of the sentencing process, and the assistant United States Attorney's reports to the Parole Commission are part of that process." 815 F.2d at 1434. We added: "[w]hile not undertaken literally at the direction of the court, these activities are so intimately associated with the judicial phase of the criminal process as to cloak the prosecutors with absolute immunity from suits for damages." Id.
Prosecutorial immunity is not limited solely to prosecutors. Probation officers are entitled to absolute immunity for the preparation and submission of a presentence report in a criminal case because the "report is an integral part of the sentencing process, and in preparing the report the probation officer acts at the direction of the court." Hughes v. Chesser, 731 F.2d 1489, 1490 (11th Cir. 1984) (state probation officer) (quoting Spaulding v. Nielsen, 599 F.2d 728, 729 (5th Cir. 1979) (federal probation officer)). "[T]his narrow function is intimately associated with the judicial phase of the criminal process[.]" Hughes, 731 F.2d at 1490 (internal quotation marks omitted). Police officers receive absolute immunity for their testimony as witnesses at trial and in grand jury proceedings. Jones, 174 F.3d at 1281. Individual Parole Board members "are entitled to absolute quasi-judicial immunity from a suit for damages." Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005). Parole officers also have absolute quasi-judicial immunity "for testimony given during parole revocation hearings when they act within the scope of their duties." Id.
On the other hand, prosecutorial immunity does not apply when the prosecutor acts outside the ambit of activities "intimately associated" with the judicial process. Generally, the Supreme Court has made clear that prosecutorial immunity may not apply when a prosecutor is not acting as an officer of the court but is instead engaged in certain investigative or administrative tasks. Van de Kamp, 129 S. Ct. at 861. These activities include conducting investigative work before an arrest, Buckley, 509 U.S. at 275-76, 113 S. Ct. at 2617, making statements to the press, id. at 277, 113 S. Ct. at 2617-18, and providing legal advice to police regarding pre-indictment investigation techniques. Burns, 500 U.S. at 496, 111 S. Ct. at 1944-45. Prosecutorial immunity does not apply when a prosecutor knowingly makes false statements of fact in an affidavit supporting an application for an arrest warrant. Kalina, 522 U.S. at 123, 118 S. Ct. at 506. "Likewise, police officers do not have absolute immunity for submitting supporting affidavits in their applications for arrest warrants." Jones, 174 F.3d at 1282.

1. Defendant Hodges
Plaintiff Hart argues Defendant Hodges is not immune from suit for the following acts:
(1) conspiring to cause the issuance of the second state warrant;
(2) calling upon law enforcement officers in Arkansas to detain Hart upon his release from the federal prison;
(3) conspiring with Amideo to issue a notice to surrender to Hart and threatening further prosecution; and
(4) issuing statements to the Albany Herald.[8]
The district court reasoned that because Hodges was "attempt[ing] to achieve completion of the sentence he thought was ordered by the federal and state court judges[,]" he was entitled to absolute immunity. D. Ct. Order at 12 (Mar. 30, 2009) (citing Henzel, 608 F.2d 657).
As an initial matter, it is clear that Hodges is not absolutely immune for his alleged statements to the press. The Supreme Court's decision in Buckley v. Fitzsimmons categorically forecloses absolute prosecutorial immunity for statements to the media. 509 U.S. at 278, 113 S. Ct. at 2618. The district court thus erred in granting absolute prosecutorial immunity to Defendant Hodges for his statements to the Albany Herald.
Our consideration of the remaining conduct concerns whether that conduct was "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S. at 430, 96 S. Ct. at 995. After review, we agree with the district court that Hodges is entitled to absolute immunity for his alleged actions in (1) causing the Georgia DOC to issue the second state warrant instructing federal and Arkansas officials to retake Hart for his return to the Georgia prison to serve his already-imposed state sentence, (2) arranging to have Hart detained at the federal prison after his release in order to return to Georgia, and (3) conspiring to threaten Hart with further prosecution if he did not return to Georgia.[9] Our previous decisions held prosecutors were absolutely immune for filing a baseless detainer and threatening further criminal prosecution, Henzel, 608 F.2d at 657, and for forwarding information about a defendant to the Parole Commission as a "continuation of the sentencing process." Allen, 815 F.2d at 1434; see also Lucien v. Preiner, 967 F.2d 1166, 1167 (7th Cir. 1992) (state prosecutor entitled to absolute immunity for sending letter during inmate's executive clemency proceedings because, "[a] determination of executive clemency, like a parole decision, is an extension of the sentencing process"). We see no material distinction between those earlier cases granting immunity for certain post-sentencing conduct and this case. All of Hodges's actions were directly related to and intimately associated with the state trial court's sentence and his role as an advocate regarding the court's sentence. Hodges was working to advocate the judicial sentence he understood (whether correctly or mistakenly) had been imposed by the state trial court. "While not undertaken literally at the direction of the court, [Hodges's] activities [we]re so intimately associated with the judicial phase of the criminal process as to cloak [him] with absolute immunity from suits for damages." Allen, 815 F.2d at 1434.
Hart's argument on appeal relies heavily on his assertion that a prosecutor should be categorically denied absolute immunity if he disobeys a judge's order (e.g., the second state sentence that Hodges appealed) outside the presence of the judge. This argument, however, misapprehends the functional analysis used in considering absolute immunity. As we repeatedly have stated, the determination of absolute prosecutorial immunity depends on the nature of the function performed, not whether the prosecutor performed that function incorrectly or even with dishonesty, such as presenting perjured testimony in court. Jones, 174 F.3d at 1289.
Hart's argument that conduct violating a judge's order, or more broadly, violating a legal obligation, should not be entitled to absolute immunity is not consistent with the fundamental purpose of absolute immunity. Absolute immunity renders certain public officials completely immune from liability, even when their conduct is wrongful or malicious prosecution. Having absolute immunity in civil damages actions would be of little consequence if it could only be asserted when the defendant prosecutor correctly complied with all his legal obligations, in which case there would be no claim.[10] Marx, 855 F.2d at 791 (plaintiff's argument that unlawful conduct bars assertion of absolute prosecutorial immunity was "clearly without merit"); Webster v. Gerstein, 913 F.2d 510, 513-14 (8th Cir. 1990) (affirming immunity for prosecutor's disregard of a judicial order to file an information or release the defendant).
Rather, the absolute doctrine has evolved such that even wrongful or malicious acts by prosecutors are allowed to go unredressed in order to prevent a flood of claims against the remainder of prosecutors performing their duties properly. Imbler, 424 U.S. at 426, 96 S. Ct. at 994.[11] Indeed, as it turns out here, the second state sentencing order, that Hodges allegedly violated through his actions, was later determined to be void under Georgia law, and Hart was remanded for re-sentencing by the state sentencing court. State v. Hart, 263 Ga. App. at 9, 587 S.E.2d at 166. Given the gap between the 27-month state sentence originally imposed and the 24 months Hart actually served in federal prison, the state sentencing court imposed yet a third sentence, of time served, that definitively concluded the imprisonment portion of Hart's state sentence.
For all of these reasons, we affirm the district court's order granting immunity to Defendant Hodges, except as to his statements to the press.

2. Defendants Amideo and Head
Hart next argues that the district court erred in granting immunity to Defendant Amideo, the general counsel of the Georgia DOC, and Warden Head, who was in charge of the Georgia prison. Hart argues Defendant Amideo cannot be absolutely immune for (1) causing the issuance of the second state warrant, and (2) issuing the notice to surrender to Hart and threatening further prosecution. Hart argues Warden Head is not absolutely immune for ignoring the order of the Georgia Court of Appeals and not releasing Hart for approximately 19.5 hours after receiving notice of the order.
Absolute immunity generally has not been extended to corrections officials. Procunier v. Navarette, 434 U.S. 555, 561-62, 98 S. Ct. 855, 859-60 (1978); Whitethorn v. Harrelson, 758 F.2d 1416, 1426 (11th Cir. 1985); Bruce, 537 F.2d at 852-53. In Procunier v. Navarette, the Supreme Court declined to extend absolute immunity in a § 1983 action to the director of a state corrections department, a prison warden and assistant warden, and three subordinate prison employees, holding instead that corrections officials are entitled to civil damage immunity, if at all, through qualified immunity. 434 U.S. at 561-62, 98 S. Ct. at 859-60. We applied Procunier in Whitethorn v. Harrelson, when we stated the defendants  employees of the Alabama Department of Corrections  were not entitled to absolute immunity for denying the plaintiff the opportunity to participate in a work release program. 758 F.2d at 1426; see also Bruce, 537 F.2d at 852-53 (not applying absolute immunity to custodial officials accused of abusing plaintiff while he was incarcerated).
Defendants Amideo's and Head's actions related to the same subject matter as some of Hodges's conduct  that is, the issuance of the second state warrant, the issuance of the notice to surrender, and disobeying the order of the Georgia Court of Appeals. However, Defendants Amideo's and Head's roles in those matters are materially different from Hodges's role. As a prosecutor, Hodges was directly participating as an advocate for how Hart's sentence should be interpreted. In contrast, Amideo's and Head's roles involved the Georgia DOC's executive function of taking custody of a prisoner. Unlike Hodges, Amideo and Head did not participate in the judicial process, much less have an advocate role in that process. Rather, Defendant Amideo's role as legal advisor to the Georgia DOC, which manages the Georgia prison system, and Warden Head's role as chief jailer of the Georgia prison where Hart was incarcerated, are not roles intimately associated with the judicial phase of the criminal process.
We therefore agree with Hart that the district court erred in granting absolute immunity to Defendants Amideo and Head for actions taken in their roles as state corrections officials and vacate the district court's order as to Amideo and Head.

B. Qualified Immunity
In the district court, the Defendants argued that, even if denied absolute immunity, they still are entitled to qualified immunity. E.g., Buckley, 509 U.S. at 278, 113 S. Ct. at 2618; Burns, 500 U.S. at 494-95, 111 S. Ct. 1944 (qualified immunity may be available when officials do not qualify for absolute immunity); Procunier, 434 U.S. at 561 n.7, 98 S. Ct. at 859 n.7. The district court did not, however, address the Defendants' qualified immunity arguments. As this issue was raised but not decided in the district court, we think it best to allow the district court to address it in the first instance on remand. See Strength v. Hubert, 854 F.2d 421, 426 (11th Cir. 1988) (remanding issue of qualified immunity to the district court for determination).[12]
Finally, the district court dismissed Plaintiff Hart's state law claims of battery and conspiracy to commit battery for lack of subject matter jurisdiction because all the federal claims were dismissed. See 28 U.S.C. § 1367(c)(3). Having reinstated portions of Hart's federal claims, dismissal of his state law claims for lack of jurisdiction is no longer appropriate. The district court's order dismissing Hart's state law claims is vacated, and the state law claims are reinstated on remand.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
NOTES
[1]  We review a district court's decision on a motion for judgment on the pleadings de novo. Moore v. Liberty Nat'l Life Ins. Co., 267 F.3d 1209, 1213 (11th Cir. 2001). On a motion for judgment on the pleadings, we accept all facts alleged in the complaint as true and construe the allegations in the light most favorable to the plaintiff. Id.
[2]  As to the state sentence, Hart's federal plea agreement also provided: "The District Attorney and Defendant agree to a sentence in the State case of ten years, which term will be composed of: (a) a term of imprisonment in an amount equal to the term of imprisonment imposed by [the district court], which term will run concurrent with the term of imprisonment imposed by [the district court], and (b) a term of probation in an amount equal to the remainder of the ten year sentence following the term of imprisonment." (emphasis in original).
[3]  Hart originally also sued Georgia DOC Commissioner W. James Wetherington and a John Doe defendant. During the district court proceedings, Hart voluntarily dismissed (1) a civil RICO claim; (2) his official capacity claims against all Defendants; and (3) his claims against Defendants Wetherington and Doe. Hart originally also asserted claims under 42 U.S.C. § 1985 but abandoned these on appeal.
[4]  "Judgment on the pleadings is appropriate when there are no material facts in dispute, and judgment may be rendered by considering the substance of the pleadings and any judicially noticed facts." Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998). The party claiming immunity from suit bears the burden of proof. Weissman v. NASD, 500 F.3d 1293, 1295-96 (11th Cir. 2007).
[5]  Courts often refer to "prosecutorial" immunity and "absolute" immunity synonymously when discussing acts by prosecutors. To be clear, prosecutorial immunity and "quasi-judicial immunity," which is often used to refer to acts by executive officials other than prosecutors, are both forms of absolute immunity. For the purposes of this opinion, absolute, prosecutorial, and quasi-judicial immunities are used interchangeably.
[6]  A federal prosecutor defending a Bivens action is also immune. Butz v. Economou, 438 U.S. 478, 504, 98 S. Ct. 2894, 2909-10 (1978); Allen v. Thompson, 815 F.2d 1433, 1434 (11th Cir. 1987).
[7]  This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
[8]  We recognize that Hart also claims the district court erred in granting Hodges and Amideo absolute immunity for their advice to Warden Head to disregard the order of the Georgia Court of Appeals. However, Hart's Second Amended Complaint does not allege facts sufficient to state such a claim against Hodges and Amideo. The Second Amended Complaint does allege: "Discovery may show that Defendants, D.A. Hodges . . . [and/or] General Counsel Amideo . . . acted in conspiracy with Defendant Warden Head to cause Plaintiff not to be released in a timely manner." Second Am. Compl. ¶ 137. The Second Amended Complaint does not otherwise allege Defendants Hodges or Amideo participated in any way in Warden Head's disregard of the Georgia Court of Appeals's order faxed to the Warden. See id. ¶¶ 87-89. These vague allegations of conspiracy to disregard the order of the Court of Appeals are not sufficient to state such a claim. See Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003). Thus, Hart has not shown reversible error in this regard, and we need not address whether Hodges or Amideo would be absolutely immune for such conduct.
[9]  Plaintiff Hart does not argue that Defendant Hodges violated his rights by appealing the state trial court's second sentencing order or through his appearances before the state trial court or the Georgia Court of Appeals. We consistently have held that prosecutorial immunity applies for actions taken as an integral part of a criminal appeal. Henzel, 608 F.2d at 657.
[10]  The Supreme Court also has noted that "there are other checks on prosecutorial misconduct [instead of individual civil liability for damages], including the criminal law and professional discipline." Burns, 500 U.S. at 486, 111 S. Ct. at 1939.
[11]  Hart cites several cases he contends denied absolute immunity because of prosecutors' disobedience of judicial orders. These cases do not stand for the proposition cited and otherwise are not persuasive. For example, in Odd v. Malone, 538 F.3d 202, 213-14 (3d Cir. 2008), although the defendant prosecutor violated a judicial order to keep the judge informed of any delays in a related criminal case, it was the conclusion that his conduct "was primarily administrative" that drove the Third Circuit's refusal to extend prosecutorial immunity. In Gagan v. Norton, 35 F.3d 1473, 1476 (10th Cir. 1994), the Tenth Circuit denied absolute immunity to a prosecutor who "allegedly countermand[ed] a state court judge's order directing a court reporter to prepare transcripts for use by an indigent pro se litigant in a civil action." The Tenth Circuit denied absolute immunity because "a prosecutor's actions in contravening the authority of the judicial branch of state government in regard to the defense of a civil action" were "simply too far removed on the continuum from the core prosecutorial functions of initiating and pursuing criminal prosecutions to be covered by absolute immunity." Id. (emphasis supplied).
[12]  The Defendants also argue Plaintiff Hart abandoned any arguments against qualified immunity because he failed to raise the issue in his initial appeal brief, citing our familiar rule that arguments not raised by an appellant are deemed abandoned. United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004). Because the district court did not rule on qualified immunity grounds, however, Hart could not complain of error in the district court's qualified immunity analysis and effectively could not have raised qualified immunity on appeal. In these particular circumstances, Hart did not waive his objections to qualified immunity. And we necessarily take no position on whether the Defendants' alleged actions violated Hart's constitutional rights or whether the rights at issue were clearly established at the time of violation. See Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009).


     Case: 18-10164      Document: 00515049920         Page: 1    Date Filed: 07/25/2019

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                    No. 18-10164                          FILED
                                  Summary Calendar                    July 25, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ISRAEL ENRIQUEZ,

                                                 Defendant-Appellant

                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:17-CR-216-11

Before HIGGINBOTHAM, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Israel Enriquez appeals the 360-month sentence imposed following his
guilty plea conviction for conspiracy to possess with intent to distribute a
controlled substance. He argues that the district court committed a clear or
obvious error that affected his substantial rights by miscalculating his
advisory guidelines range of imprisonment and imposing a sentence within
that range.

       * 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: 18-10164     Document: 00515049920       Page: 2   Date Filed: 07/25/2019

                                   No. 18-10164

      Because Enriquez failed to object in the district court to the calculation
of his base offense level or the sentence imposed, the challenge to the
procedural reasonableness of his sentence that he raises on appeal was not
preserved and is reviewed for plain error only.                See United States
v. Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir. 2009). To prevail on plain
error review, Enriquez must show a forfeited error that is clear or obvious and
affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes that showing, we have the discretion to correct the error
but will do so “only if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks, brackets,
and citations omitted).
      It is undisputed that the quantities of methamphetamine (not actual)
were erroneously calculated and that, as a result, the marijuana equivalency
for those drug quantities was also miscalculated, resulting in an incorrectly
calculated base offense level and guidelines sentencing range. Thus, as the
Government concedes, Enriquez has shown a forfeited error that is clear or
obvious and has thus satisfied the first two prongs of the plain error analysis.
See Puckett, 556 U.S. at 135.
      To satisfy the third prong of the plain error analysis, “the defendant
ordinarily ‘must show a reasonable probability that, but for the error, the
outcome of the proceeding would have been different.’”            United States v.
Randall, 924 F.3d 790, 796 (5th Cir. 2019) (quoting Molina-Martinez v. United
States, 136 S. Ct. 1338, 1343 (2016) (internal quotation marks omitted)).
Absent the mathematical error, Enriquez’s total offense level would have been
reduced from 39 to 37, and his guidelines range would have been 292 to 365
months of imprisonment instead of 360 to 480 months of imprisonment. While
an error that results in a higher guidelines range “usually establishes a

                                         2
    Case: 18-10164    Document: 00515049920     Page: 3   Date Filed: 07/25/2019

                                 No. 18-10164

reasonable probability that a defendant will serve a prison sentence that is
more than necessary to fulfill the purposes of incarceration,” Randall, 924 F.3d
at 796 (internal quotation marks and citation omitted), that fact is not
dispositive of whether the error affected the defendant’s substantial rights.
Rather, “[a] defendant may not carry his plain error burden . . . if the
sentencing court nevertheless concluded the chosen sentence was appropriate
regardless of the correct Guidelines range or the sentence was based on factors
independent of the Guidelines.” Id. (internal quotation marks and citations
omitted).
      In this case, the district court not only concluded that a 360-month
sentence was appropriate even if the guidelines range was wrong but also
stated that the sentence was appropriate based on the factors set forth in
18 U.S.C. § 3553(a). Under the circumstances, there is no reason to believe
that the court would have imposed any sentence other than the chosen
sentence absent the mathematical error.
      Enriquez has not satisfied his burden of showing that the forfeited clear
error affected his substantial rights. See Puckett, 556 U.S. at 135; Randall,
924 F.3d at 796. Accordingly, the judgment of the district court is AFFIRMED.

                                       3


                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00252-CR

JAMAL LA-MONTE ROGERS,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee

                           From the 82nd District Court
                               Falls County, Texas
                              Trial Court No. 8945

                           MEMORANDUM OPINION

       Jamal La-Monte Rogers was convicted of failure to comply with the registration

requirements of the Sex Offender Registration Program, a third degree felony. TEX.

CODE CRIM. PROC. ANN. art. 62.102 (West 2006). Specifically, Rogers failed to comply

with the change of address provision.         Id. art. 62.055(a).   He pled true to an

enhancement paragraph and was sentenced to 18 years in prison. Because the evidence

is sufficient to support Rogers’ conviction, we affirm the trial court’s judgment.
         Chapter 62, the Sex Offender Registration Program statute, is not one of the

easiest statutes to understand or apply.        Recognizing some of the problems, the

legislature has attempted a comprehensive rewrite; several times. See Reynolds v. State,

___ S.W.3d ___, 2012 Tex. App. LEXIS 7185 (Tex. App.—Waco Aug. 23, 2012, no pet.)

(publish). In such a case, it is critical to understand the structure of the statute and what

the elements of a violation are as well as the alternative manner and means of violating

the statute. The specific provision violated should be clearly alleged in the indictment

and preferably in the judgment as well. We note that rather than referencing the statute

found to have been violated in the judgment, the judgment merely references the

statute that provides the punishment range for the offense.

         To properly apply the statute, you must first determine if the statute applies, and

if so, then which version. Id. Finally, you must determine the manner and means by

which the statute was violated. See Young v. State, 341 S.W.3d 417, 427 (Tex. Crim. App.

2011).

         Generally, the statute applies only to those persons with a reportable conviction

or adjudication occurring on or after September 1, 1970. TEX. CODE CRIM. PROC. ANN.

art. 62.002(a) (West 2006). A "reportable conviction or adjudication" means a conviction

or adjudication that is a conviction for or an adjudication for, among other things,

aggravated sexual assault.      Id. art. 62.001(5)(A).   A person who has a reportable

conviction shall register with the local law enforcement authority where the person

Rogers v. State                                                                        Page 2
resides or intends to reside for more than seven days. Id. art. 62.051(a). There is no

question on this record or raised in the appeal that Rogers had a reportable violation

and was thus required to register as a sex offender for life.

        A person commits the offense of failure to comply with the registration

requirements of Chapter 62 if the person is required to register and fails to comply with

any requirement of the Chapter. Id. art. 62.102(a). Rogers was indicted for the failure

“to report defendant’s change of address within seven days of a defendant’s actual

change of residence.” (sic). It is not clear from the indictment which manner and

means of violating the statute the State was relying upon. The indictment could have

been for the failure to report an intended change in his address, id. art. 62.055(a) (first

sentence) or that Rogers failed to report “not later than the seventh day after changing

the address… in person to the local law enforcement” in which his new residence is

located. Id. (second sentence) (or for some other violation of the statute). Either failure

is a violation of the registration requirements for a person who is required to register.

Although the indictment was not clear which provision Rogers allegedly violated, since

the only evidence of a new address was in another county, there was no evidence that

he violated the provision in the second sentence of the statute in Falls County. Thus, we

assume the State sought to prove Rogers violated the first sentence by failing to notify

the reporting officer for the City of Marlin, not less than seven days prior to his

anticipated move date, that he intended to change his address.

Rogers v. State                                                                      Page 3
        Under that provision, if a person who is required to register pursuant to Chapter

62 intends to change his address, he shall, not later than the seventh day before the

intended change, report in person to the local law enforcement authority designated as

the person's primary registration authority and provide the authority with the person's

anticipated move date and new address. Id. art. 62.055(a).

        In this appeal, it is undisputed that Rogers was convicted of aggravated sexual

assault on September 28, 2006 and, thus, was subject to the statute. It is also undisputed

that Rogers timely registered with the registration authority for the City of Marlin, the

administrative assistant for the Chief of Police, in compliance with article 62.051. The

dispute is whether the evidence was sufficient to support the allegation that Rogers

failed to comply with the provisions of article 62.055 by not reporting a change in his

address before that change occurred.

        In reviewing the sufficiency of the evidence to support a conviction, we view all

the evidence in a light most favorable to the prosecution to determine whether any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Brooks v. State, 323

S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). And if the record supports

conflicting inferences, we must presume that the factfinder resolved the conflicts in

favor of the prosecution and therefore defer to that determination. Jackson, 443 U.S. at

Rogers v. State                                                                     Page 4
326. The factfinder is entitled to judge the credibility of witnesses and can choose to

believe all, some, or none of the testimony presented by the parties. Chambers v. State,

805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Further, a factfinder is permitted to draw

reasonable inferences from the facts as long as they are supported by the evidence

presented at trial. Merritt, 368 S.W.3d at 525.

        Rogers’ argument centers on the meaning of the word reside as used in article

65.051(a). He contends reside is synonymous with the word domicile which means a

permanent home to which, whenever absent, a person has the intent to return. And

because, he argues, the two words are synonymous, Rogers urges us to find the

evidence insufficient to prove beyond a reasonable doubt that he intended to

permanently change his residence.              The legislature, however, used only the term

residence with reference to the reported address.1 We hold that the term residence is

not synonymous with the term domicile and use the common meaning of residence

since it is not defined by the statute to evaluate the sufficiency of the evidence.

        As stated, it was undisputed that Rogers registered in the City of Marlin as

required by article 62.051(a). For purposes of the statute, that is where Rogers resided.

The word reside is included in that particular provision. The State sought to prove

1 We note that there is a wealth of English language references to a person’s address. Words such as
domicile and residence are sometimes used without reference to the legal distinctions. Further, there is a
fair amount of other terminology that is used, depending on the formality of the circumstances such as
where a person calls home, where a person sleeps, where a person lives, and where a person stays. Here,
we deal only with a person’s “residence” address as used in the statute in this proceeding, and Rogers’
failure to report a change of that registered address.

Rogers v. State                                                                                Page 5
Rogers violated article 62.055, the change of address provision, which required Rogers

to report to the City his change of address before or after the change. We note that implicit

in the statute is that the registered address is the person’s primary residence in that it

provides for only one such registration but also provides for registration of temporary

locations. See TEX. CODE CRIM. PROC. ANN. art. 62.059(a) (West 2006) (on at least three

occasions during a month, a person spends more than 48 consecutive hours in a location

other than where registered).

        Rogers’ registered address was with his uncle, Kevin. Darrel Allen, Marlin’s

Chief of Police, visited Kevin’s home on October 28, 2010 in search of Rogers. Kevin

told Allen that Rogers did not live there and that Rogers was living with his girlfriend

in Waco. When asked how long it had been since Rogers lived there, Kevin replied that

Rogers had left sometime in July or August. Further, documents were introduced

which indicated that on October 31, 2010, Kevin reported to Ernesto Alvarez, Rogers’

parole officer, that Rogers no longer lived at Kevin’s address. Rogers argues we cannot

consider this testimony as evidence because it was admitted over objection.                  This

testimony recited, however, was admitted without objection.2 At trial, Kevin denied

telling anyone that Rogers no longer lived at his registered address. In this trial before

the bench, the trial court, as the factfinder, could choose which testimony was credible.

2There was similar evidence offered at other times during the trial to which objections were made.
However, we reference and rely upon only unobjected to evidence in the record.

Rogers v. State                                                                            Page 6
        The evidence established that Rogers had not been living at his registered

address for three to four months.        Viewing the evidence under the appropriate

standard, we find it sufficient to prove beyond a reasonable doubt that Rogers failed to

report to the City his change of address not later than the seventh day before the

intended change. Thus, Rogers’ sole issue is overruled.

        The trial court’s judgment is affirmed.

                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 13, 2012
Do not publish
[CR25]

Rogers v. State                                                                   Page 7


268 B.R. 715 (2001)
In re Francis ZARRO, Debtor.
No. 94 B 44013(SMB).
United States Bankruptcy Court, S.D. New York.
May 7, 2001.
*716 Herzfeld & Rubin, P.C. (Herbert Rubin, David Cohen, Charles A. Crum, Of Counsel), New York City, for Francis Zarro.
Oxman Tulis Kirkpatrick Whyatt & Geiger (Andrew D. Brodnick, Of Counsel), White Plains, NY, for Ronald Scheckter.

MEMORANDUM DECISION GRANTING DECLARATORY AND INJUNCTIVE RELIEF TO THE DEBTOR
STUART M. BERNSTEIN, Chief Judge.
The debtor, Francis Zarro, commenced this proceeding to prevent Ronald Scheckter from enforcing a state court judgment, and to recover payments made in partial satisfaction of the underlying debt. In the main, the dispute turns on whether Scheckter is seeking to collect a discharged, pre-petition debt or a valid post-petition debt unaffected by Zarro's discharge. The Court conducted an evidentiary hearing on March 28, 2001, at which it heard two witnesses testify and received several documents in evidence.
The Court concludes that the state court judgment is void, and the reaffirmation agreement underlying the judgment is unenforceable. Accordingly, Scheckter is enjoined from taking any further steps to enforce it, and must undo the collection efforts he has thus far taken. The record will be reopened to take additional evidence *717 and receive briefing on Zarro's affirmative claim for monetary relief.

BACKGROUND
A. The Zarro Bankruptcy
When Zarro filed his chapter 7 petition on August 24, 1994, he was not the average chapter 7 debtor. A lawyer and real estate developer, he owed over $20 million to some very aggressive creditors. One of those creditors was Ronald Scheckter. Scheckter was also involved in the real estate business, had apparently done business with Zarro, and Zarro owed him approximately $3 million.
Scheckter vigorously pursued the collection of his claim during the bankruptcy. According to Zarro, Scheckter and his attorney, Martin Rapaport, Esq., threatened Zarro's life and the life of his children. (Transcript of Order to Show Cause hearing held March 28, 2001 ("Tr.") at 18-19, 41, 51-52.) Scheckter, along with Raymond Mallozzi and Anne Baker, also filed proceedings to determine the dischargeability of their debts and to object to his general discharge.[1]
In addition, on March 15, 1996, Zarro and Scheckter entered into a reaffirmation agreement, and Zarro signed a note and a confession of judgment. (Declaration of Francis A. Zarro, Jr. in Support of Motion for a Declaration That a Debt Has Been Discharged and for Related Relief, dated Mar. 21, 2001, Ex. A.) Zarro defaulted almost immediately, and after Scheckter began efforts to file and enforce the confessed judgment, Zarro sued to stop him. The reaffirmation agreement had not been filed with the Court, as required by 11 U.S.C. § 524(c), and was unenforceable. As a result, Zarro's efforts culminated in an order from this Court, dated October 31, 1996, declaring the judgment void. (Id., Ex. B.)
Undaunted, Scheckter tried another tack. He acquired Mallozzi's claim.[2] This gave Scheckter significant leverage over Zarro. Scheckter's own objection to discharge had been dismissed for procedural reasons, and the acquisition of the Mallozzi claim enabled Scheckter to prosecute Mallozzi's discharge objection.
B. The Settlement With Scheckter
During the fall of 1997, Zarro was engaged, through two family-owned corporations, in the ownership and renovation of the Island Green Country Club in upstate New York.[3] For reasons that are not clear, Scheckter began to do some consulting work at the course. Initially sporadic, his level of participation eventually increased, and Scheckter spent most of 1998 living at the site and overseeing construction. Although the two differ on the precise terms of their deal, it is undisputed that Zarro respected Scheckter's expertise in real estate matters and welcomed his advice and participation. In addition to providing room and board, Zarro allowed Scheckter to use the club house and golf facilities, made a car available, and ultimately, paid him between $22,000.00 and $25,000.00. (See Tr. 16-17, 18, 38-40, 80, 82, 90.)
Around the time that Scheckter started working with Zarro, the two focused increased efforts on resolving their differences. Zarro testified that Scheckter continued to threaten him and his family, (Tr. 51), although oddly, he also said that their *718 discussions never became acrimonious. (Tr. 19-20.) In addition, Scheckter told Zarro that he would not settle the Mallozzi claim (and hence, he would continue to prosecute the discharge objection) unless Zarro also settled with him. (Tr. 26.)
These discussions culminated in an agreement dated January 13, 1998 (the "Agreement")(Zarro Trial Ex. ("ZX") A.) The significant financial terms included the following:
1. Zarro executed a $4.5 million note (ZX B), which called for the payment of $100,000.00 on signing, and the balance over time. Part of the payments was dedicated to the settlement or satisfaction of a particular litigation involving Scheckter but not Zarro. If it cost Scheckter more than the dedicated amount to resolve the matter, Zarro would have to pay more.
2. Zarro paid $165,000.00 in consideration of the assignment of the Mallozzi claim.[4]
3. Scheckter assigned two claims in litigation to Zarro. Zarro agreed to diligently prosecute the actions, and pay any net recoveries to Scheckter in partial satisfaction of the note.
The two assigned claims had questionable value. The first claim (the "Schulman" claim) involved an action to collect on a $150,000.00 check that had bounced in June 1993. (ZX G.) Scheckter commenced his action in June 1994. (Id.) He testified that he recovered a judgment, (Tr. 81), but had obviously not collected it as of January 1998. The second claim (the "Colli" claim) is more complicated, and is described in a Summary Order issued by the Second Circuit Court of Appeals. (ZX I.) In substance, Scheckter invested in real estate, making a $20,000.00 down payment, and also allegedly infusing as much as $500,000.00 into the property. In August, 1997, the Court of Appeals affirmed the district court order awarding Scheckter a $20,000.00 judgment against third parties. In addition, the Court of Appeals remanded for further proceedings in connection with Scheckter's claim to recover the difference between what he put into and received from the property. The Court identified significant problems with Scheckter's claim. Any recovery net of legal fees appears to be problematic.[5]
Why then, did Zarro pay Scheckter $100,000.00 and promise to pay him another $4.4 million? To be sure, Scheckter's threats and his ability, through the Mallozzi claim, to continue to prosecute the objection to discharge, provided motivation. Zarro also testified that he felt a moral obligation to pay Scheckter, (Tr. 35), but I find that testimony incredible. Instead, Zarro wanted two things from Scheckter immediately. To get them, he was willing to pay a substantial amount up front, and to promise to pay even more in the future although whether he intended to honor that future promise is open to question.
First, Zarro wanted Scheckter to publicly endorse him as an honorable person. Zarro was getting back on his feet and was working on several deals that he hoped would bring in many millions of dollars. (Tr. 84-85.) The publicity from his bankruptcy *719 and the allegations made by Scheckter during the proceedings had hurt his reputation. (Tr. 34-35, 67-70.) He needed to restore his business and financial credibility, (Tr. 85), and looked to Scheckter.
Accordingly, as part of the January 1998 settlement, Scheckter executed and delivered a letter (ZX C)(the "Good Guy Letter") addressed to David Sall, Esq., Zarro's attorney, which stated:
This is to advise you . . . that notwithstanding that Frank [Zarro] had no legal obligation to do so, that Frank and I have satisfactorily and amicably settled my claim against him.
I must take this opportunity to compliment Mr. Zarro on meeting and fulfilling his obligations, in that Mr. Zarro's obligation to satisfy my claim was solely a moral obligation, and not legally enforceable.
Although Zarro insisted that the Good Guy Letter played no role in his willingness to pay the debt, (Tr. 67), Scheckter testified more credibly on this score. Zarro needed to restore his reputation, and refused to sign the note without the letter. (Tr. 85.) The letter was executed and placed in escrow pending the execution of the Agreement and the accompanying note. (Tr. 85-85.) After the Good Guy Letter was delivered as part of the settlement, Zarro included it in his "information bank," making it publically available as needed. (See Tr. 34.)
Second, Zarro was intent on tapping into Scheckter's real estate expertise and services at Island Green. As mentioned, around the time of the Agreement, Scheckter had taken on what amounted to a full time job at Island Green. The Agreement and the note payments, however, were not the consideration for those services. According to Scheckter, Zarro had agreed to pay him $250,000.00 per year to run all of the construction, and the project was expected to last five years. (Tr. 89.) This represented a $1.25 million deal for Scheckter. Zarro advanced $5,000.00 per week initially, but the payments petered out, and eventually stopped after approximately $22,000.00 to $25,000.00 was paid. (Tr. 89-90.) On or about December 15, 1998, Scheckter submitted an invoice for services rendered to American Past Time in the amount of $158,000.00. (ZX K.)
C. Zarro's Default and its Aftermath
Zarro immediately defaulted on the note. During 1998, he attempted at various stages to placate Scheckter. In August 1998, he promised to assign his right to $3 million in proceeds from the anticipated closing of the El Rancho transaction in Las Vegas. (Tr. 42.) He failed, however, to follow through, and on or about December 7, 1998, Scheckter's attorney, Mark Tulis, Esq. sent Zarro a default notice. (Creditor's Exhibit ("CX") 3.) Tulis told Zarro that unless he received the El Rancho assignment by 5:00 p.m., Scheckter would sue. (Id.)[6]
Zarro continued to promise payment, and on February 4, 1999, wrote to Tulis that he would be sending $250,000.00 by the end of the month. (CX 4.) He didn't, and on or about March 11, 1999, Scheckter commenced an action, moving for summary judgment on the note in lieu of complaint. (ZX J.) See N.Y.C.P.L.R. 3213 (McKinney's 1992). The parties continued to talk, as evidenced by Sall's June 1, 1999, letter to Tulis. (CX 5.) Sall asked for a six month moratorium on the litigation. In exchange, Zarro promised to pay $100,000.00 in two $50,000.00 installments in June. Sall also wanted another Good *720 Guy Letter. On June 18, 1999, Tulis responded by fax indicating an impasse over the good faith language that Sall had requested. (CX 6.) He could not reach Scheckter, and promised a final answer by June 21st. Zarro directed Sall to pay $50,000.00 to Scheckter anyway. (Tr. 56.)
The state court entered a judgment against Zarro in the sum of $4,540,485.00 on February 8, 2000. (ZX D.) The judgment did not reflect credit for the $150,000.00 Zarro claimed he paid. Thirteen months later, Scheckter moved by order to show cause in state court to compel payment of the judgment and to appoint a receiver for Zarro. The order to show cause restrained Zarro, his wife and American Past Times from transferring any sums except to pay current and necessary household or business expenses. (ZX E.)
Up to this point, Zarro had not done anything to challenge the validity of Scheckter's judgment or the underlying debt. He testified that he thought the Agreement and note were valid, (Tr. 45-47), and only learned that the note might be unenforceable during 2000. (Tr. 61.) In truth, he was unconcerned about the enforceability of the note or even the judgment until Scheckter tried to enforce payment. He ran to this Court to invalidate the debt only after Scheckter restrained his wife and American Past Time, interfering with his home and his business. (Tr. 64.)
Thus, nine days after the state court signed the restraining order, Zarro brought on the pending application by order to show cause. He seeks (1) to declare the judgment debt discharged, (2) to declare the judgment void, (3) to compel Scheckter to discontinue the state court proceedings with prejudice, (4) to require Scheckter to return $150,000.00 paid voluntarily in connection with the discharged debt, and (5) to sanction Scheckter for attempting to enforce the debt.

DISCUSSION
A. The Validity of the Agreement and Note
Section 524(a) of the Bankruptcy Code voids any judgment of personal liability based on a discharged debt, regardless of when that judgment is issued, and enjoins actions to collect a discharged debt as a personal liability of the debtor. Section 524(c) allows the debtor to waive these protections on a debt-by-debt basis, but an "agreement between a holder of a claim and the debtor, the consideration for which, in whole or in part, is based on debt that is dischargeable in a case under this title is enforceable . . . only if" it satisfies the requirements set out in § 524(c). The primary purpose of § 524 is to promote the debtor's financial "fresh start." See Green v. Welsh, 956 F.2d 30, 33 (2d Cir. 1992); In re Adams, 229 B.R. 312, 315 (Bankr.S.D.N.Y.1999).
It is undisputed that the Agreement did not satisfy the procedural requirements of § 524. For example, it lacked a "clear and conspicuous" statement that it was not required by bankruptcy law and could be rescinded, see 11 U.S.C. § 524(c)(2), and it was never filed with the Court. See id., § 524(c)(3). Scheckter nevertheless contends that the Agreement is enforceable because he gave new and valuable consideration to Zarro in exchange for his promise to pay, and moreover, that Zarro should be estopped from challenging the validity of the Agreement and note. Both arguments lack merit.
Section 524(c) is not concerned with the consideration that the debtor received; instead, it invalidates non-complying agreements where any part of the consideration given by the debtor involves his promise to pay a discharged debt. In re Getzoff, 180 B.R. 572, 575 (9th Cir. BAP 1995) ("Section *721 524 references the consideration given by the debtor, not the lender"); Liptz & Roberts, Chartered Pension Plan Trust, et al. v. Stevens (In re Stevens), 217 B.R. 757, 760-61 (Bankr.D.Md.1998)(§ 524(c) "places little emphasis on whether the new consideration is sufficient, rather the thrust of the issue is whether any part of the consideration is based on a debt that is otherwise dischargeable"); In re Gardner, 57 B.R. 609, 610-11 (Bankr.D.Me.1986) (agreement invalid under § 524(c), even though debtor received some post-filing consideration, where "at least part of the consideration for the agreement is based upon the dischargeable debt"); see Smith v. First Suburban Nat'l Bank (In re Smith), 224 B.R. 388, 396 (Bankr.N.D.Ill.1998). Logic as well as language support this view. Every reaffirmation agreement involves some element of new consideration. Otherwise, the debtor would not agree to pay the discharged debt. If new consideration saved a non-complying reaffirmation agreement, little would remain of the protection afforded by § 524(c).
Here, the Agreement and the note represented Zarro's promise to pay Scheckter's pre-petition claim, the same claim that had been discharged in his bankruptcy. The Agreement recited that "Scheckter may have certain discharged[7] claims against Zarro in excess of $4,000,000.00," Scheckter wanted to assign any and all claims he may have had against Zarro and the parties wished to exchange general releases settling any claims between them. In addition, Scheckter acknowledged in the "Good Guy Letter" that Zarro had no legal obligation to pay his claim, and that "Mr. Zarro's obligation to satisfy my claim was solely a moral obligation, and not legally enforceable." The amount that Zarro agreed to pay  $4.5 million  did not coincidently "[bear] some resemblance to the pre-petition debt," (Post-Hearing Brief in Opposition to the Debtor's Order to Show Cause, dated Apr. 9, 2001 ("Scheckter Brief"), at 18); it was the pre-petition debt.
Nonetheless emphasizing the consideration that he gave, Scheckter cites several decisions that enforced non-complying reaffirmation agreements based on the debtor's receipt of new consideration. See, e.g., In re Watson, 192 B.R. 739 (9th Cir. BAP 1996), aff'd, 116 F.3d 488 (9th Cir. 1997) (unpublished table mem.); Minster State Bank v. Heirholzer (In re Heirholzer), 170 B.R. 938 (Bankr.N.D.Ohio 1994); In re Petersen, 110 B.R. 946 (Bankr. D.Colo.1990); Button v. Sheridan Oil Co., 18 B.R. 171 (Bankr.W.D.N.Y.1982). These decisions, however, are distinguishable as they did not involve the reaffirmation of personal debts discharged in the bankruptcy. Instead, they concerned post-petition promises to pay non-dischargeable debts, see In re Button, 18 B.R. at 172 (note given in satisfaction of non-dischargeable criminal restitution claim)[8], in rem obligations that passed through the bankruptcy, see In re Watson, 192 B.R. at 748 (promise to pay secured creditor who was seeking to foreclose on its collateral after the stay was terminated); In re Heirholzer, 170 B.R. at 941 (same), or prospective debts that would arise from the use of the creditor's property in the future. In re Petersen, 110 B.R. at 950 (agreement to *722 continue real property lease rejected by Trustee and not in default).
Here, Scheckter failed to connect Zarro's $4.5 million promise with a similar claim. Instead, the Zarro's promise was rooted in his discharged, pre-petition obligation, and that is what he agreed to pay. To the extent that Scheckter's authorities suggest that a post-petition agreement to pay a discharged debt is valid simply because the creditor offers something extra, I join the growing chorus that questions their correctness. See In re Smith, 224 B.R. at 396-97 (distinguishing Heirholzer, Button and Petersen, but adding that they are not controlling); In re Stevens, 217 B.R. at 761 (Heirholzer takes an approach to § 524(c) that is contrary to what Congress intended); In re Arnold, 206 B.R. 560, 566 (Bankr.N.D.Ala.1997) (Heirholzer and Button are wrong).
Finally, Zarro is not estopped from challenging the validity of the Agreement or the note. Under New York law, a party invoking equitable estoppel must show (1) a misrepresentation or concealment of fact, (2) the knowledge or expectation that the innocent party will rely on the misrepresentation or concealment, (3) actual or constructive knowledge of the true facts by the wrongdoer, and (4) detrimental reliance. General Elec. Capital Corp. v. Armadora, 37 F.3d 41, 45 (2d Cir.1994). The misrepresentation must be one of fact, and an opinion or misrepresentation of law will not suffice. Lignos v. United States, 439 F.2d 1365, 1368 (2d Cir.1971); In re Chateaugay Corp., 156 B.R. 391, 403 n. 16 (S.D.N.Y.), aff'd, 10 F.3d 944 (2d Cir.1993); 57 N.Y.JUR.2d, Estoppel, Ratification & Waiver § 13, at 24 (2000). Further, the innocent party's reliance must be reasonable. Buttry v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir.1995); Petrelli v. City of Mount Vernon, 9 F.3d 250, 256 (2d Cir.1993).
Scheckter seems to argue that Zarro should be estopped from relying on the "amount" of the note to invalidate it because (1) the note would be enforceable if Zarro had agreed to pay $1 million instead of $4.5 million, and (2) invalidating the note would permit Zarro to get the consideration that he wanted from Scheckter without paying for it. (See Scheckter Brief 18.) His argument neglects to identify any misrepresentation that would support a claim of equitable estoppel. The "amount" of the note is simply evidence that it was given in satisfaction of the pre-petition debt in the same amount. In this regard, a $1 million note would be equally invalid if the consideration involved the payment of the discharged debt. In other words, the amount of the post-petition agreement does not have to match the amount of the pre-petition debt to be unenforceable.
Finally, invalidating the debt may leave Scheckter holding the short end of the stick, but it does not change the result. Section 524 voids Scheckter's judgment, enjoins his collection efforts and renders the Agreement and note unenforceable. The statute is absolute, unequivocal, and without qualification or condition. It does not require Zarro to restore Scheckter to the status quo to invoke the discharge injunction defensively, which is essentially what he is doing in an effort to stop collection. This is not to say that Scheckter is barred from recovering his consideration, or its reasonable value. The parties have not, however, addressed this issue, and it will have to be decided at another time.
Based on the foregoing, I conclude that the Agreement and the note violate § 524(c), and are invalid and unenforceable. In addition, the state court judgment is void under § 524(a), and Scheckter must take steps to remove the judgment of record and terminate efforts to collect it.
*723 B. The Return of the $150,000.00 Paid to Scheckter
The final piece of relief sought in the order to show cause concerned the return of the $150,000.00 allegedly paid by Zarro to Scheckter under the Agreement and note. This portion of Zarro's application raised far more difficult legal and factual issues, and the parties neglected these issues at the hearing and in their post-hearing memoranda. The issues include the legal basis for recovery, whether the payments were voluntary within the meaning of § 524(f), whether Zarro or a third party made the payments, and if a third party made them, can they be recovered by Zarro, and whether Zarro must restore Scheckter to the status quo ante as a condition to recovery. There may be others, and I do not mean to foreclose any issues on this point at this juncture.
Accordingly, the Court will reopen the record for the limited purpose of conducting further proceedings with regard to Zarro's claim for affirmative relief. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) (a motion to reopen to submit additional proof is addressed to the sound discretion of the court); Magnaleasing, Inc. v. Staten Island Mall, 428 F.Supp. 1039, 1045 (S.D.N.Y.) (the trial judge, in his sound discretion, may reopen a case sua sponte, to clarify the evidence and focus it into a meaningful fact pattern), aff'd, 563 F.2d 567 (2d Cir.1977). The parties are directed to contact chambers to schedule a conference at which the scope of the further proceedings can be explored. The foregoing constitutes the Court's findings of fact and conclusions of law. Settle order on notice.
NOTES
[1]  The chapter 7 trustee also filed an objection to discharge which was eventually settled.
[2]  According to the claims register, Mallozzi filed a claim in the sum of $138,746.13.
[3]  New Deal Projects LLC owned the club, and American Past Time LLC operated it. Zarro's wife owned New Deal, and owned the majority of American Past Time.
[4]  At the same time, the Mallozzi adversary proceedings were dismissed. (ZXs F-1, F-4.) Zarro represented that he paid Mallozzi $165,000.00 to settle the § 523 dischargeability proceeding. (ZX F-1 (Affidavit of Francis A. Zarro, Jr., sworn to Jan. 19, 1998, at ¶ 3)), which was not true. He paid Scheckter.
[5]  Zarro valued the Colli claim at between $185,000.00 and $200,000.00. (Tr. 92, 93-94.) He never pursued the claim because he lacked the money. (Tr. 94.) Scheckter valued the claim at $2 million. (Tr. 84.) This estimate is not supported by the record.
[6]  The default notice coincides with Scheckter's invoice, sent eight days later.
[7]  The word "discharge" did not appear in the draft, and was written in by hand and initialed by the parties.
[8]  Scheckter's discussion of Button in his post-hearing brief omits a material fact. As noted, the debtor's note was delivered in satisfaction of the non-dischargeable restitution claim, and not in satisfaction of the discharged debt as his brief implies. (See Scheckter Brief 14.) Consequently, the case is not "on the `Button'," (id. at 14 n. 10), but rather, Scheckter has pushed the wrong button.


876 So.2d 240 (2004)
Paul OESTRINGER
v.
CITY OF NEW ORLEANS (Fire Dept.).
No. 2003-CA-2213.
Court of Appeal of Louisiana, Fourth Circuit.
June 2, 2004.
Rehearing Denied July 15, 2004.
*241 Christopher R. Schwartz, Christopher Schwartz, Metairie, LA, for Plaintiff/Appellant.
Wayne J. Fontana, Thomas Louis Colletta, Jr., Carin J. Dorman, Courtenay, Hunter & Fontana, L.L.P., New Orleans, LA, for Defendant/Appellee.
(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
DENNIS R. BAGNERIS, SR., Judge.
This is an appeal from a ruling of the Office of Workers' Compensation (OWC), approving the termination of supplemental earnings benefits (SEB) and denying attorney's fees and penalties. For the reasons assigned, we affirm.

FACTS AND PROCEDURAL HISTORY:
Claimant/appellant, Paul Oestringer, (Mr. Oestringer) began his employment with the City of New Orleans (the City), as a firefighter in December of 1966. On February 1, 1996, while participating in a work-related exercise, Mr. Oestringer injured his neck. As a result of the injury, Mr. Oestringer was placed on workers' compensation benefits and continued treatment under the care of his physician, Dr. Robert Ruel. Mr. Oestringer has not engaged in any employment since his injury.
In March 1996, Mr. Oestringer requested his retirement pension from the fire department. Mr. Oestringer is currently receiving his pension. In July 2001, after paying over 104 weeks of SEB, the City determined that Mr. Oestringer had retired from the workforce; and his benefits were thereafter terminated. On October *242 1, 2001, Mr. Oestringer filed a Disputed Claim for Compensation (Form 1008).[1]
On February 27, 2002, Mr. Oestringer completed a questionnaire that was sent to him by Management Services USA, the workers' compensation claims adjuster for the City. In that document, Mr. Oestringer indicated that: he was retired from all employment because he was totally disabled; he was not actively seeking employment; and he did not desire vocational rehabilitation. At trial on March 19, 2003, the OWC judge allowed the introduction of the document over the objection of Mr. Oestringer's attorney. The objection was based on the fact that the questionnaire was mailed directly to Mr. Oestringer and that Mr. Oestringer's attorney was not aware of it.
On July 10, 2003, the OWC judge rendered judgment, stating in pertinent part:
Claimant is not entitled to Supplemental Earnings Benefits (SEB). The court finds that claimant did retire or withdraw from the work force during the period that SEB was payable. Additionally, the court finds that the claimant did receive one hundred eighty weeks (180) weeks of SEB and that the defendant was entitled to terminate benefits pursuant to La. R.S. 23:1221(3)[c](iii);[2]
Defendant did terminate and/or refuse to pay workers' compensation benefits; but defendant is not found to have been arbitrary and capricious or without probable cause in its termination and/or refusal of workers' compensation benefits pursuant to La. R.S. 23:1201.2; and attorney's fees are not awarded.

DISCUSSION:
Mr. Oestringer filed this timely appeal arguing the following: 1) the OWC judge erred in finding that he retired from the work force; 2) the OWC judge erred in denying him the maximum 520 weeks of SEB as allowed by La. R.S. 23:1221(3); 3) the OWC judge erred by allowing the job search and vocational rehabilitation questionnaire into evidence; and 4) the OWC judge erred in failing to award him attorney's fees and penalties for arbitrary and capricious termination of benefits.
In opposition to this appeal, the City maintains that it clearly established that Mr. Oestringer retired or withdrew from the workforce, and that after paying over 104 weeks of benefits, the termination of benefits was proper under R.S. 23:1221(3)(d)(iii). The City further asserts that the OWC judge was correct in finding that the City was not arbitrary and capricious when it terminated Mr. Oestringer's SEB.
In a worker' compensation case, as in other cases, the appellate court's review is governed by the manifest error or clearly wrong standard. Dales v. Ceco Concrete Const., 02-2740, p. 3 (La.App. 4 Cir. 6/4/03), 849 So.2d 790, 793. Under this standard of review, an appellate court may not set aside a trial court's finding of fact unless it is clearly wrong. Id. After reviewing the entire record, the appellate court must determine if the factfinder's conclusion was reasonable. Where conflicting testimony exists, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed. Id.
We address Mr. Oestringer's first two assignments of error in tandem. The *243 OWC judge determined that Mr. Oestringer had retired from the workforce pursuant to La. R.S. 23:1221(3), which provides in pertinent part:
(d) The right to supplemental earnings benefits pursuant to this Paragraph shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate:
(iii) When the employee retires or begins to receive old age insurance benefits under Title II of the Social Security Act, whichever comes first; however the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks.
The Louisiana Supreme Court found the portion of La. R.S. 23:1221(3)(d)(iii) that terminates benefits upon the claimant's receipt of social security old age benefits unconstitutional. However, the court expressly declined to consider the constitutionality of that portion of the act terminating benefits when the claimant retires. Pierce v. Lafourche Parish Council, 99-2854, p. 4 (La.5/16/00), 762 So.2d 608, 612. Moreover, the Court severed that portion of the statute that it declared unconstitutional. Id. at 615. See also, Randazzo v. Boh Bros. Const. Co., 01-1953 (La.App. 4 Cir. 3/27/02), 814 So.2d 671.
In Allen v. City of Shreveport, 93-2928 (La.5/23/94), 637 So.2d 123, the Court held that a worker retires under La. R.S. 23:1221(3)(d)(iii) when: (1) the worker withdraws from the work force; or (2) the worker draws old age social security benefits, whichever comes first. Id. at 126. When La. R.S. 23:1221(3)(d)(iii) speaks of retiring, it is not referring to the failure to work because of disability. It is referring to the worker who has no intention of returning to work regardless of disability. Id.
The fact that a worker may receive some form of pension or retirement benefits in connection with his retirement from a job because of disability does not constitute retirement under La. R.S. 23:1221(3)(d)(iii). Breaux v. Travelers Ins. Co., 526 So.2d 284, 290 (La.App. 3 Cir. 5/11/88). Where a worker has retired from a heavy work duty job but is still willing to take on light duty employment within the scope of the limitations imposed by their disabilities, then that worker is said not to have withdrawn from the workforce and is not considered to have retired under the statute. Palisi v. City of New Orleans Fire Dept., 95-1455 (La.App. 4 Cir. 3/12/97), 690 So.2d 1018, 1048. This court has stated that an employee who expresses his intention to both retire or stop working and not look for other employment, and who makes no effort to find another job, has retired within the meaning of La.R.S. 23:1221, Randazzo, citing Lytle v. City of New Orleans through New Orleans Fire Department, 96-0039, p. 5 (La.App. 4 Cir. 9/11/96), 681 So.2d 12, 15.
In deciding the issue of whether an employee has withdrawn from the workforce, the Louisiana courts have considered, on a case by case basis, whether the employee engaged in some type of employment or attempted to find employment subsequent to his injury. In this case, Mr. Oestringer's testimony and other elements of the record support the finding that he has indeed withdrawn from the workforce. Namely, in September of 1996, Dr. Ruel released Mr. Oestringer for sedentary work. Vocational rehabilitation was provided to Mr. Oestringer in 1997. CorVel Corporation conducted an employment search in which potential jobs were identified for Mr. Oestringer. Correspondence from Dr. Ruel to CorVel Corporation on January 15, 1997 confirms that Dr. Ruel approved some of the job positions. Mr. Oestringer did not indicate that he actively *244 sought employment with any of the identified employers. Vocational rehabilitation was offered to Mr. Oestringer in 2002 through Resolution Network, L.L.C., and Mr. Oestringer was provided with a list of potential jobs. Mr. Oestringer testified that he did not actively pursue any of the job possibilities because he felt that most of the jobs did not suit him or did not fit him. Mr. Oestringer has not returned to the workforce since his injury on February 1, 1996.
We conclude that Mr. Oestringer has retired, and we rely in part on the Management Services USA questionnaire, wherein Mr. Oestringer stated that he retired from all employment. We find no merit in Mr. Oestringer's third assignment of error concerning the introduction of this document at trial. Mr. Oestringer argues that the correspondence was an improper ex parte communication and that the correspondence was ambiguous because it did not notify the claimant that he was free to reconsider his decision to return to the workforce. The OWC judge allowed the document, finding that Mr. Oestringer was not denied the opportunity to have his attorney review the document before it was completed. The OWC judge further determined that he would let the document go to the weight of the evidence. We find no error in that decision. Mr. Oestringer's answers to the questionnaire clearly demonstrate that he considered himself retired, and we note that Mr. Oestringer testified at trial that he answered the questions honestly. On this record, we cannot say that the OWC judge was clearly wrong in concluding that Mr. Oestringer had withdrawn from the workforce, making him retired within the meaning of La. R.S. 23:1221(3)(d)(iii).
Finally, we address Mr. Oestringer's last assignment of error maintaining that the OWC judge erred in failing to award attorney's fees and penalties. "Whether an insurer acted in an arbitrary or capricious manner is a determination of fact, which should not be disturbed by the Court on review absent manifest error." Carter v. New Orleans Fire Dept., 94-0338 (La.App. 4 Cir. 11/17/94), 646 So.2d 455, 460, citing McCray v. Commercial Union Ins. Co., 618 So.2d 483, 489 (La.App. 4 Cir.4/28/93). It is clear from the testimony of Kevin Pierre, the adjuster who handled the workers' compensation claim for the City, that Mr. Oestringer's benefits were stopped after a determination that he had withdrawn from the workforce. We find that determination to be reasonable considering the circumstances of this case. Accordingly, we cannot say that the hearing officer was "clearly wrong" or "manifestly erroneous" in finding that the City was not arbitrary and capricious.
For the foregoing reasons, the judgment of the OWC, rendered on July 10, 2003, is affirmed.
AFFIRMED.
NOTES
[1]  Medical benefits are not at issue on this appeal.
[2]  The applicable section of the statute appears to be La. R.S. 23:1221(3)(d)(iii), which states that when the employee retires... the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks.