639 F.3d 1106 (2011)
UNITED STATES of America, Plaintiff-Appellee,
v.
Peter G. ROGAN, Defendant.
410 Montgomery, LLC, et al., Garnishees.
Diane Whitlow and Estate of Jerry Whitlow, Claimants-Appellants.
No. 10-3718.
United States Court of Appeals, Seventh Circuit.
Argued April 14, 2011.
Decided May 12, 2011.
Joseph A. Stewart, Attorney, Thomas P. Walsh, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Bryna J. Dahlin, Attorney, Winston & Strawn LLP, Chicago, IL, for Defendant.
Steven L. Baron, Attorney, Bruce N. Menkes, Attorney, Mandell Menkes, LLC, Chicago, IL, for Claimants-Appellants.
Before EASTERBROOK, Chief Judge, and ROVNER and SYKES, Circuit Judges.
EASTERBROOK, Chief Judge.
The United States has a judgment for more than $60 million against Peter Rogan, who defrauded the Medicare and Medicaid programs. See United States v. Rogan, 517 F.3d 449 (7th Cir.2008). Rogan, who has fled the country, concealed his wealth in an attempt to frustrate his many creditors. See, e.g., Dexia Crédit Local v. Rogan, 629 F.3d 612 (7th Cir. 2010). By tracing Rogan's assets, the United States discovered that he had invested in 410 Montgomery LLC, a firm that built housing in Georgia. (Rogan made these investments through foreign trusts, some nominally owned by his relatives. We disregard the trusts and treat Rogan as the investor.)
The United States served 410 Montgomery with a writ of garnishment against Rogan's membership interest in the business venture. See 28 U.S.C. § 3205. The company sold its holdings, paid its secured *1107 creditors, liquidated, and placed the money in escrow. The district court approved distributions for closing costs. The residue came to a little more than $4 million, and the United States asked for all of it.
Jerry Whitlow and Diane Whitlow filed claims to about $175,000 of the amount on deposit. (Jerry Whitlow has since died, and his estate has been substituted as a party. We refer to Diane Whitlow and the estate as the Whitlows.) The Whitlows say that they own a one-third interest in Taylor Row LLC, to which 410 Montgomery LLC owes about $475,000. The United States opposed the Whitlows' claims, relying on § 3205(c)(8), which provides that a writ of garnishment under § 3205 "shall have priority over writs which are issued later in time." The Whitlows replied that their entitlement does not depend on a writ but on Georgia law, which establishes that creditors must be paid before equity investors. Taylor Row is a creditor of 410 Montgomery, while the United States stepped into the shoes of Rogan, an equity investor. (If 410 Montgomery had been a corporation, Rogan would have been a shareholder; because 410 Montgomery was a limited liability company, he held membership units. These are functionally similar to shares of stock.) The district court held that § 3205 displaces Georgia law. Because the United States obtained a writ of garnishment, while Taylor Row never obtained a writ of any kind, all of the money belongs to the United States, the court concluded. The disputed funds remain in the escrow pending this appeal.
The Whitlows contend, and the United States concedes, that, if Georgia law governs, any debt to Taylor Row must be paid before funds can be disbursed to 410 Montgomery's equity investors. Normally state law prescribes what the United States can attach or collect as a creditor. United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979). The United States contends that § 3205 displaces state law once the national government obtains a writ of garnishment. That is not what § 3205 says, however. Subsection 3205(c)(8), on which the United States relies, establishes priority among competing writs. If the Whitlows were trying to collect from Rogan's assets, then § 3205(c)(8) would give priority to the United States. See United States v. Kollintzas, 501 F.3d 796, 802-03 (7th Cir. 2007), which we discuss later. But the Whitlows have not made a claim against Rogan's assets; their claim is against 410 Montgomery's assets (represented by the funds in escrow).
Subsection 3205(c)(8) does not specify what a writ covers. Does the writ of garnishment give the United States rights directly in 410 Montgomery's assets, or only in Rogan's equity interest in that firm? Although the question is a novel oneno appellate decision discusses itnovelty does not imply difficulty. Section 3205(a) supplies the answer. It reads:
A court may issue a writ of garnishment against property (including nonexempt disposable earnings) in which the debtor has a substantial nonexempt interest and which is in the possession, custody, or control of a person other than the debtor, in order to satisfy the judgment against the debtor. Co-owned property shall be subject to garnishment to the same extent as co-owned property is subject to garnishment under the law of the State in which such property is located. A court may issue simultaneous separate writs of garnishment to several garnishees. A writ of garnishment issued under this subsection shall be continuing and shall terminate only as provided in subsection (c)(10).
This tells us two things. First, the writ covers the property "in which the debtor has a substantial nonexempt interest" *1108 which is to say, Rogan's membership units in 410 Montgomery LLC, not the real estate that 410 Montgomery developed. Investors in corporations and LLCs own tradable shares or units; they do not own the company's assets. The separation of investment interests from operating assets is a fundamental premise of business law. See Landreth Timber Co. v. Landreth, 471 U.S. 681, 105 S.Ct. 2297, 85 L.Ed.2d 692 (1985). Equity investors are residual claimants; they get only what is left after debts have been paid. Second, if we were nonetheless to treat 410 Montgomery's assets as property that Rogan "co-owned" with other investors (including the banks and Taylor Row), then the law of the state in which the property is located determines how far the writ of garnishment reaches. That's Georgia lawand the parties agree that a writ under Georgia law would not vault equity investor Rogan (and hence would not promote the United States) over creditors' interests.
An example may help. Suppose Rogan invested $2 million in 410 Montgomery LLC and the Whitlows $2 million; each thus would have 50% of the membership interests, and each would be entitled to 50% of any liquidating distribution. Both interests in this example are equity. Neither Rogan nor the Whitlows could have obtained a judgment or lien against 410 Montgomery's assets; their interest is in the firm, not the assets it owned. The United States gets a judgment against Rogan, garnishes his equity interest, and causes 410 Montgomery to liquidate so that Rogan's stake can be paid over. Let us suppose that the condos sell for $6 million (in other words, that the real estate venture made a $2 million profit). What the United States argues here is that it would receive the entire $6 million and the Whitlows nothing. This is the only possible outcome, the United States contends, because the Whitlows did not have a writ against 410 Montgomery. But why should the United States be entitled to the Whitlows' half of the business, when § 3205(a) says that the writ applies only to Rogan's assets? We should not impute to Congress a plan to confiscate private property without just compensation (or, indeed, any compensation). And if the Whitlows keep their interest when they are equity investors, they assuredly keep it as debt investors (creditors), for debt has higher priority than equity.
The United States relies heavily on Kollintzas. Frank Kollintzas was ordered to pay some $25 million in restitution. He absconded, and the United States obtained a lien against some of his assets, such as pension plans, checking accounts, and the cash surrender value of his life insurance policies. See 18 U.S.C. § 3613(c). Frank's wife Joanna filed for divorce and made a claim to some of Frank's assets; she contended that the divorce court should determine her share. We held that the right forum is the federal court, which issued the judgment that created the lien, and that the United States had an interest in Frank's assets senior to Joanna's. This decision rested on two conclusions: first, that Joanna was making a claim to some of Frank's assets (rather than, say, to a marital share in jointly owned assets such as a residence); second, that Indiana law would give Joanna's claim a priority date as of the divorce decree, which came after the lien had been perfected. 501 F.3d at 803. Kollintzas does not help the United States, because the Whitlows are not claiming any of Rogan's assets. As we have emphasized, what Rogan owned was a membership interest in 410 Montgomery LLC. The Whitlows don't want any part of that equity interest; their claim is against the LLC's own assets, in which creditors have entitlements senior to those of equity investors.
Our conclusion that § 3205 does not seize third-party interests recognized by *1109 state law leaves several questions unanswered. Did 410 Montgomery LLC owe a debt to Taylor Row LLC? If so, how much? If it owed money to Taylor Row LLC, why are the Whitlows the right parties to receive that money? Just as Rogan's investment in 410 Montgomery LLC did not give Rogan a property interest in the firm's assets (Rogan owned only his membership interests), so the Whitlows' investment in Taylor Row LLC did not give them an interest in that firm's assets. Georgia law allows investors in limited liability companies, as in corporations, to pursue derivative actions, see Ga.Code § 14-11-801; Uniform Limited Liability Company Act § 902 (rev. 2006), but the Whitlows have not followed that route. Instead they bypassed Taylor Row and asserted a claim directly against 410 Montgomery. A direct claim would cut out other equity investors in, and creditors of, Taylor Row. The potential to undermine such interests is one reason why investors can't pierce their own firm's structure and assert its rights directly. See Mid-State Fertilizer Co. v. Exchange National Bank, 877 F.2d 1333 (7th Cir.1989). Georgia does not appear to permit a suit of this nature; direct actions are proper only with respect to an investor's own rights against the LLC or its other members. Southwest Health & Wellness, L.L.C. v. Work, 282 Ga.App. 619, 639 S.E.2d 570 (2006); see also Uniform Limited Liability Company Act § 901. Does some other provision of Georgia law permit the sort of direct claim that the Whitlows have presented? Has the United States forfeited any objection to the direct nature of this claim? These and any other material issues are open on remand.
The judgment is vacated, and the case is remanded for proceedings consistent with this opinion.


                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                             )
                                         )
General Atomics Systems Integration, LLC )           ASBCA No. 61447
                                         )
Under Contract No. FA8251-12-D-0006      )

APPEARANCES FOR THE APPELLANT:                       Alex D. Tomaszczuk, Esq.
                                                     Meghan D. Doherty, Esq.
                                                      Pillsbury Winthrop Shaw Pittman LLP
                                                      McLean, VA

APPEARANCES FOR THE GOVERNMENT:                      Jeffrey P. Hildebrant, Esq.
                                                      Air Force Deputy Chief Trial Attorney
                                                     Michael J. Farr, Esq.
                                                     Lt Col Nathaniel H. Sears, USAF
                                                      Trial Attorneys

                                 ORDER OF DISMISSAL

       The dispute has been settled. The appeal is dismissed with prejudice.

       Dated: February 5, 2019

                                             ~££Y MARK A. MELNICK
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals

       I certify that the foregoing is a true copy of the Order of Dismissal of the Armed
Services Board of Contract Appeals in ASBCA No. 61447, Appeal of General Atomics
Systems Integration, LLC, rendered in conformance with the Board's Charter.

       Dated:

                                                  JEFFREYD. GARDIN
                                                  Recorder, Armed Services
                                                  Board of Contract Appeals


Matter of Govia v New York State Dept. of Corr. & Community Supervision (2019 NY Slip Op 02764)

Matter of Govia v New York State Dept. of Corr. & Community Supervision

2019 NY Slip Op 02764

Decided on April 11, 2019

Appellate Division, Third Department

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

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

Decided and Entered: April 11, 2019

526948

[*1]In the Matter of KAREEM GOVIA, Petitioner,
vNEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.

Calendar Date: March 15, 2019

Before: Garry, P.J., Lynch, Mulvey, Devine and Rumsey, JJ.

Kareem Govia, Napanoch, petitioner pro se.
Letitia James, Attorney General, Albany (William E. Storrs of counsel), for respondent.

MEMORANDUM AND JUDGMENT
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of the Superintendent of Eastern N.Y. Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with refusing a direct order, being out of place and violating movement procedures. The misbehavior report detailed that petitioner failed to report as required to his assigned vocational program prior to attending his religious call out. When petitioner was located in the facility mosque, the imam directed petitioner to go to the armory desk officer who, in turn, directed petitioner to report to the vocational gate with the 2:00 p.m. bus run. Petitioner failed to report to the vocational gate on that bus run or the 2:30 p.m. bus run, and was located in the commissary around 3:00 p.m. Following a tier II disciplinary hearing, petitioner was found guilty of being out of place and violating movement procedures, and the determination was upheld on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and testimony of petitioner provide substantial evidence to support the determination of guilt (see Matter of Lebron v Artus, 35 AD3d 1108, 1109 [2006], lv denied 8 NY3d 810 [2007]). Petitioner admitted that he went to call out without first reporting to his vocational program and that he thereafter went to the commissary without authorization instead of reporting to the vocational gate. Petitioner claimed that he was unaware of the policy requiring him to report to his vocational program before proceeding to call out, but his purported ignorance did not absolve him of guilt and, at most, created a credibility issue for the Hearing Officer to resolve (see Matter of Lewis v Annucci, 156 AD3d 1015, 1016 [2017]; Matter of Pertillar v Fischer, 64 AD3d 1029, 1030 [2009]). Moreover, the Hearing Officer was entitled to rely on statements by the author of the misbehavior report that this was the facility policy, and petitioner did not request that the author be called to testify about this policy (see [*2]Matter of Rivera v Annucci, 160 AD3d 1273, 1273 [2018]). Petitioner's claim that his identification went missing at the armory desk, apparently preventing him from reporting to the vocational gate, even if credited, did not excuse his conduct in going to the commissary, where he was also out of place and in violation of movement procedures.
With regard to petitioner's argument that the charges violated his right to practice his religion, "an alleged infringement upon an inmate's religious practices does not, by itself, excuse the violation of a prison disciplinary rule" (Matter of Watson v Gardner, 156 AD3d 1050, 1051 [2017] [internal quotation marks and citation omitted]; see Matter of Rivera v Goord, 2 AD3d 922, 922-923 [2003]; Matter of Rashid v Ketchum, 247 AD2d 670, 671 [1998]). More to the point, the proper vehicle for challenging, on constitutional grounds, the substance or application of a written or unwritten policy of respondent is the inmate grievance procedure (see 7 NYCRR 701.2 [a]; Matter of Chandler v Annucci, 121 AD3d 1142, 1143 [2014], lv denied 25 NY3d 901 [2015]; Matter of Walker v Senkowski, 294 AD2d 635, 635 [2002], lv denied 98 NY2d 612 [2002]; Matter of Ali v Senkowski, 270 AD2d 542, 543 [2000], appeal dismissed 95 NY2d 886 [2000]). Petitioner's remaining claims, to the extent that they are preserved for our review, also lack merit.
Garry, P.J., Lynch, Mulvey, Devine and Rumsey, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.


     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

 1          THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                No. 32,879

 5 SERENITY DERRICK,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 Gary L. Clingman, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Ching Law Firm
13 Alexander B. Ching
14 Hobbs, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 BUSTAMANTE, Judge.
1   {1}   Summary affirmance was proposed for the reasons stated in the notice of

2 proposed disposition. No memorandum opposing summary affirmance has been filed,

3 and the time for doing so has expired.

4   {2}   Affirmed.

5   {3}   IT IS SO ORDERED.

6
7                                   _______________________________________
8                                   MICHAEL D. BUSTAMANTE, Judge
9 WE CONCUR:

10
11 MICHAEL E. VIGIL, Judge

12
13 J. MILES HANISEE, Judge

                                           2


245 F.3d 282 (3rd Cir. 2001)
JAMES BARBERA, PETITIONERv.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; GLOBAL TERMINAL AND CONTAINER SERVICES, INC.
No. 00-3212
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Submitted Under Third Circuit LAR 34.1(a) March 12, 2001Filed March 27, 2001

On Petition for Review of a Decision and Order of the Benefits Review Board (BRB Docket No. 99-0460)Richard P. Stanton, Jr., Esquire Suite 314 17 Battery Place New York, NY 10004, William M. Broderick Seven Dey Street Suite 700 New York, NY 10007, Counsel for Petitioner
Keith L. Flicker, Esquire Flicker, Garelick & Associates 318 East 53rd Street New York, NY 10022, Counsel for Respondent -- Global Terminal and Container Services, Inc.
Before: Mansmann, Barry and Cowen, Circuit Judges.
OPINION OF THE COURT
Mansmann, Circuit Judge.

1
James Barbera ("Barbera") petitions for review of final orders of the United States Department of Labor Benefits Review Board (the "Board") affirming in part and reversing in part Orders of Administrative Law Judge Edith Barnett ("ALJ Barnett") and affirming Orders of Administrative Law Judge Linda Chapman ("ALJ Chapman").1 Petitioner makes two claims. First, he claims that the Board erred in affirming ALJ Barnett's denial of a de minimis award under the Longshore and Harbor Workers' Compensation Act (the "LHWCA"), 33 U.S.C. SS 901 et seq., where ALJ Barnett found proof of Petitioner's present medical disability and a reasonable expectation of future loss of wage-earning capacity. Second, he claims that, (a) absent a finding of abuse of discretion, the Board erred in reversing ALJ Barnett's award of attorney's fees to Petitioner's counsel, and (b) the Board further erred in subsequently affirming ALJ Chapman's significant reduction in counsel's hourly rates. Petitioner specifically alleges that the Board erroneously departed from its proper standard of administrative review.

2
Because we conclude that, on the findings made by ALJ Barnett and supported by substantial evidence, and on the law as pronounced by the Supreme Court in Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121 (1997), Petitioner was clearly entitled to a de minimis award, we will reverse the Board and remand for determination of that award. Further, because we conclude that ALJ Barnett's award of attorney's fees was supported by substantial evidence and in accordance with the law, and that the Board was therefore without authority to disturb that award, we will reverse the Board and reinstate ALJ Barnett's award of attorney's fees.

I.

3
The basic facts are not in dispute. Petitioner's employment as a maintenance manager for Global Terminal & Container Services, Inc. ("Global") required him to inspect and estimate damage on shipping containers by climbing stacked containers and securing access through heavy container doors sometimes corroded by rust. On April 16, 1991, while attempting to force open the doors to a stacked container, Petitioner suffered an accident at Global's pier in Jersey City, New Jersey. As a result of this accident, he sustained a disabling herniation to his lower back. Because he was unable to continue his previous employment due to his disability, Petitioner sought and found employment as a surveyor with China Ocean Shipping Company in Charleston, South Carolina. Petitioner's orthopedic surgeon concluded that Petitioner's injury required a marked restriction of activities and that further spinal degeneration and progression of symptomology were inevitable.2

4
Petitioner sued for workers' compensation pursuant to the LHWCA3 and his employer, Global, challenged jurisdiction and Petitioner's right to compensation. On February 27, 1996, following a three-day hearing and a complete review of Petitioner's medical record, ALJ Barnett found that (a) Petitioner met the status and situs requirements for jurisdiction under the LHWCA, and (b) Petitioner had been temporarily totally disabled for a period of several months and had sustained a permanent partial disability. Accordingly, she awarded Petitioner medical benefits under the LHWCA. ALJ Barnett did not, however, award any compensation for lost wage earning capacity because Petitioner was then employed in another position for wages comparable to his pre-injury earnings. As more fully explained in her Supplemental Decision and Order of April 26, 1996, despite her finding that Petitioner's "serious back condition" was "likely to deteriorate and m[ight] cause loss of wage earning capacity in the future" and despite her awareness that "[s]ubstantial authority does exist for de minimis awards where, as here, there is proof of a present medical disability and a reasonable expectation of future loss of wage-earning capacity",4 because this circuit had not considered the issue, ALJ Barnett felt compelled to follow the Board's policy of disfavoring any de minimis award.5

5
On the issue of Petitioner's attorney's fees, ALJ Barnett directed counsel to submit a fully documented fee application. In her Supplemental Decision and Order she admonished the employer's counsel for requiring Petitioner to litigate every issue -- including jurisdiction, which should not have been contested -- and for turning the motions for fee awards into "a second major litigation."6 After a complete review of the attorney's fee application, ALJ Barnett found that Petitioner prevailed on jurisdiction, disability, and the award of medical benefits;7 she also observed that "[a] party cannot... litigate tenaciously and then be heard to complain about the time necessarily spent by opposing counsel in response."8 In a Second Supplemental Decision and Order issued on May 14, 1996, ALJ Barnett ordered the employer to pay directly to Petitioner's counsel the sum of $71,247.89 in fees and costs for his successful representation of Petitioner and $1,060 in fees and costs for defending his fee application.

6
Both the denial of a de minimis award and the award of attorney's fees were timely appealed and considered together. On February 26, 1997, the Board issued a Decision and Order in which it acknowledged that de minimis awards are appropriate where a claimant has established a "significant possibility of future economic harm as a result of the injury" but reasoned that "[a]s [ALJ Barnett]'s determination that claimant did not establish a significant possibility of future economic harm is supported by substantial evidence", it would "affirm the denial of a de minimis award."9 On the issue of attorney's fees, the Board held that ALJ Barnett erred in failing to apply the Supreme Court's holding in Hensley v. Eckerhart, 461 U.S. 424 (1983), requiring that an attorney's fee award be commensurate with the degree of success obtained in the case. The Board concluded that although ALJ Barnett cited Hensley, she "did not apply its holding in awarding an attorney's fee in excess of $71,000." The Board therefore vacated that award and remanded and reassigned the case to ALJ Chapman10 with dir sections to adjust the fee award "after taking into account the limited results obtained in this case, specifically that only medical benefits, but no disability benefits, were awarded."11

7
Twenty months later, in October, 1998, ALJ Chapman found that the number of hours reflected in the fee petition was reasonable, but reduced the hourly rates by one-third for lack of evidentiary justification that they were the prevailing rates for similar legal work in the area. She further reduced the lodestar figure by two-thirds in accordance with her conclusion that the award of future medical benefits represented "no more than one-third of the relief requested."12 Upon Motion for Reconsideration submitting evidence that the rates awarded by ALJ Barnett were the prevailing rates for attorneys with comparable experience, and challenging the reduction in the degree of success to one-third, ALJ Chapman denied that Motion but changed the rationale for her reduction in the rates. She concluded that (a) the rates were nonetheless unreasonable because the amount of time charged by counsel to this matter strongly suggested to ALJ Chapman that counsel lacked expertise and (b) because ALJ Barnett's "refusal to grant a de minimis award indicate[d] that she did not view the possibility of future economic harm... to be significant enough to overcome the Board's disfavor of such awards", counsel had achieved a relatively small portion of the relief requested.13

8
On January 28, 2000 the Board affirmed ALJ Chapman's fee reductions, holding that Petitioner failed to show any abuse of discretion and that Petitioner's "primary claim for compensation" had been denied.14 At this time, the Board was also asked to revisit its denial of a de minimis award in light of the Supreme Court's decision in Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121 (1997).15 In a footnote, the Board replied that:

9
Even though the Board did not rely on the Supreme Court's Rambo decision, which had not yet been issued, the Board used the "significant possibility of future economic harm" standard of the [underlying Ninth Circuit decision]... which is consistent with the standard used by the Supreme Court in its decision. While Judge Barnett's denial of a de minimis award may have been based on a determination that the... Third Circuit did not speak on the issue and the Board did not favor such awards, the Board, in affirming, relied on correct law.

10
Decision and Order of the Board, January 28, 2000 (7a).

II.

11
We exercise plenary review over the Board's interpretation of law and we also exercise plenary review to satisfy ourselves that the Board adhered to the statutory scope of review. Pennsylvania Tidewater Dock Co. v. Director, OWCP, 202 F.2d 656, 660 (3d Cir. 2000).16 The Board must accept the ALJ's findings unless they are contrary to law, irrational or unsupported by substantial evidence in the record as a whole. See id.; see also O'Keeffe v. Smith Associates, 380 U.S. 359 (1965).17 It exceeds its authority when it makes independent factual determinations. See Director, OWCP v. U.S. Steel Corp., 606 F.2d 53, 55 (3d Cir. 1979).18

12
In Rambo, the Supreme Court confirmed that de minimis awards are appropriate where a claimant's "work related injury has not diminished his present wage earning capacity under current circumstances, but there is a significant potential that the injury will cause diminished capacity under future conditions." 521 U.S. at 138. The Court addressed the potential tension in such cases between the LHWCA's statutory mandate to account for future effects of disability in determining a claimant's wage-earning capacity (and thus entitlement to compensation) under 33 U.S.C. S 908(h) and its statutory prohibition against issuing any new order to pay benefits more than one year after compensation ends or an order is entered denying an award, see 33 U.S.C. S 922.19 It approved the reconciliation of these provisions previously adopted by four of our sister courts of appeals, reading the LHWCA to authorize a present nominal award subject to later modification; and in so holding it rejected the Board's historic antipathy toward such awards.20 Moreover, the Supreme Court approved the courts of appeals' standard of proof necessary to justify a nominal award, i.e., such compensation "should not be limited to instances where a decline in capacity can be shown to a high degree of statistical likelihood" but should be awarded where "there is a significant possibility that a worker's wage earning capacity will at some future point fall below his preinjury wages." 521 U.S. at 137.

13
It is clear from ALJ Barnett's decisions that she found proof of a present medical disability and a reasonable expectation of future loss of wage-earning capacity and that her sole reason for denying a de minimis award was her belief that the Board's prior decisions constrained her from doing so. It is, therefore, equally clear that the Board erred in recharacterizing ALJ Barnett's decision as a "determination that claimant did not establish a significant possibility of future economic harm" and was therefore not entitled to a de minimis award. The ALJ made no such determination; to the contrary, she reached precisely the opposite conclusion. See April 26, 1996 Supplemental Decision and Order (33a-34a) ("[H]ere, there is proof of a present medical disability and a reasonable expectation of future loss of wage-earning capacity".). Under the guise of interpreting ALJ Barnett's decision, the Board has in effect substituted its own contrary factual determination, in contravention of our holding in U.S. Steel.21

14
Because the Board misread ALJ Barnett's decision, it never considered whether her actual finding -that the standard for an award of de minimis benefits had been met - was supported by substantial evidence. We find that ALJ Barnett's original determination was supported by substantial evidence in the record, including the testimony of Petitioner's orthopedic surgeon to the effect that Petitioner's condition would inevitably deteriorate. ALJ Barnett reasonably inferred from the medical evidence that there was at least a "significant possibility" that Petitioner would at some future time suffer economic harm as a result of his injury.

15
We are troubled by the Board's continued unwillingness to uphold properly-supported nominal awards, in the face of clear direction from four courts of appeals and even the Supreme Court.22

16
Accordingly, we hold that, pursuant to the findings made by ALJ Barnett and the direction of the Supreme Court in Rambo, Petitioner is entitled to a nominal award retroactive to September 1, 1991, the date he stopped receiving his regular salary from Global.23

III.

17
This appeal also requires us to review the Board's determination that, contrary to the decision of ALJ Barnett, Petitioner's counsel is entitled to only a significantly-reduced fee for legal services rendered.

18
The ALJ is given the responsibility of determining an appropriate attorney's fee award. On appeal, the Board's scope of review is limited; it "must uphold the ALJ's findings unless the ALJ applied the wrong legal standard or the ALJ's factual conclusions were not `supported by substantial evidence in the record considered as a whole.' " Pennsylvania Tidewater Dock Co. v. Director, OWCP, 202 F.3d 656, 659 (3d Cir. 2000) (quoting 33 U.S.C. S 921(b)(3)). Substantial evidence " `means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Id. at 661 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The Board may not reverse an ALJ's award merely because it would have reached a contrary conclusion. See, e.g., id. at 659.

19
ALJ Barnett presided over this entire case and was in the best position to observe firsthand the factors affecting her analysis of counsel's fee award. She was familiar with prevailing rates for successful claimant's attorneys in her District and was best able to assess the representation and services rendered. Indeed, ALJ Barnett expressly noted counsel's decades-long experience in maritime litigation, high standing, and "success in this matter despite the employer's tenacious defense by experienced counsel."24 As these and other factors recited by ALJ Barnett constitute substantial evidence supporting her determination as to the appropriateness of counsel's rates, that determination may not be disturbed on appeal.

20
ALJ Barnett's decision to award counsel's full fee - with no "limited success" reduction - was also supported by substantial evidence and, moreover, was in accordance with the Supreme Court's holding in Hensley v. Eckerhart, 461 U.S. 424 (1983). Under Hensley, the question is whether "the relief obtained justified that expenditure of attorney time." 461 U.S. at 435 & n. 11.25 Petitioner here prevailed against his employer's strong contestation of jurisdiction, the extent of disability, and entitlement to future medical benefits. Indeed, by securing future medical benefits, counsel obtained a substantial benefit for Petitioner. Moreover, as discussed in Part II, Petitioner also prevailed as to the factual criteria for a de minimis award and he has now prevailed as to his legal entitlement on that score as well.

21
In determining the degree of success as compared to the overall purpose of the litigation,26 ALJ Barnett felt that Petitioner's counsel was entitled to the full award of fees. Although Petitioner did not succeed on every theory proffered, he did gain substantial benefit. ALJ Barnett noted that this was a complex case and required careful preparation; she reviewed each of 36 entries as to which specific objections were made and concluded that there was no basis for reduction. Because ALJ Barnett's decision was supported by substantial evidence and applied the correct legal standards, it should not have been disturbed. Neither the Board nor ALJ Chapman had a basis for substituting a different opinion from that of ALJ Barnett; to the contrary, the Board was required as a matter of law to uphold ALJ Barnett. Accordingly, the initial award of attorney's fees must be reinstated.27 Moreover, to avoid further unnecessary litigation as to fees, we observe that Petitioner will be entitled to recover a reasonable attorney's fee for the present appeal as well.28

IV.

22
For the reasons set forth above, we will vacate the decisions and orders of the Board and reinstate ALJ Barnett's initial award of attorney's fees to Petitioner's counsel; we further remand this case for entry of a nominal disability award and for determination of an appropriate fee for this appeal.

NOTES:

1
  Our jurisdiction over these matters is pursuant to 33 U.S.C. S 921(c).

2
  Indeed, Petitioner's back condition did continue to degenerate, and he underwent back surgery. Petitioner alleges he has been unable to work in any capacity since January 1999. Reply Brief for Petitioner at 2.

3
  The LHWCA, 33 U.S.C. SS 901-50 (1994), is a workers' compensation statute that fixes disability benefits for maritime workers who are injured on the job.

4
  Supplemental Decision and Order of ALJ Barnett, April 26, 1996 (33a-34a) (citing La Faille v. Benefits Review Board, 884 F.2d 54 (2d Cir. 1989); Randall v. Comfort Control, 725 F.2d 791 (D.C. Cir. 1984); Hole v. Miami Shipyards Corp., 640 F.2d 769 (5th Cir. 1981)). These circuits each held that when a claimant has suffered a medical disability and there is a significant possibility that he will suffer future economic harm, the purposes of the LHWCA are served by a nominal award expressly fashioned to preserve the claimant's right to future compensation. See also Rambo v. Director, OWCP, 81 F.3d 840, 843 (9th Cir. 1996), aff'd, 521 U.S. 121 (1997) (agreeing with 2d, 5th and D.C. Circuits that "nominal awards may be used to preserve a possible future award where there is a significant physical impairment without a present loss of earnings").

5
  ALJ Barnett stated:
This case, however, arises in the Third Circuit, which has evidently not considered the issue. The court is therefore bound by the rulings of the Benefits Review Board, which disfavors de minimis awards (citations omitted).
The Board had repeatedly "expressed its dissatisfaction with de minimis awards of benefits," viewing them as "judicially-created" extensions on the time for modification, which "infring[e] upon the province of the legislature". Rambo v. Director, OWCP, 81 F.3d 840, 844 (9th Cir. 1996), aff'd, 521 U.S. 121 (1997); see also LaFaille v. Benefits Review Board, 884 F.2d 54, 58 (2d Cir. 1989).

6
  Supplemental Decision and Order of ALJ Barnett, April 26, 1996 (32a-33a).

7
  As ALJ Barnett noted, the award of future medical benefits constitutes successful prosecution under Jackson v. Ingalls Shipbuilding Division, Litton Systems, Inc., 15 BRBS 299 (1983).

8
  Supplemental Decision and Order of ALJ Barnett, April 26, 1996 (33a).

9
  Decision and Order of February 26, 1997 (13a-14a).

10
  The case was reassigned to the recently-appointed ALJ Chapman due to the death of ALJ Barnett.

11
  Id. (14a).

12
  Decision and Order of ALJ Chapman, October 23, 1998 (44a).

13
  Decision and Order of ALJ Chapman on Motion for Reconsideration, January 11, 1999 (47a).

14
  Decision and Order of the Board, January 28, 2000 (6a-7a).

15
  In Rambo, the Supreme Court held that an award of nominal compensation is proper where a worker has not suffered a current loss of earnings but "there is a significant possibility that the worker's wage-earning capacity will fall below the level of his preinjury wages sometime in the future." 521 U.S. at 123.

16
  See also Director, OWCP v. Barnes and Tucker Co., 969 F.2d 1524, 1526-27 (3d Cir. 1992); Bethenergy Mines, Inc. v. Director, OWCP, 39 F.3d 458, 463 (3d Cir. 1994).

17
  See also Rambo v. Director, OWCP, 81 F.3d 840, 842 (9th Cir. 1996), aff'd, 521 U.S. 121 (1997) (noting that Board decisions "are reviewed by the appellate courts for `errors of law and adherence to the substantial evidence standard'") (quoting Metropolitan Stevedore Co. v. Brickner, 11 F.3d 887, 889 (9th Cir. 1993)).

18
  See also Rambo, 521 U.S. at 139 (noting that "the ALJ is the factfinder under the Act") (citations omitted).

19
  See 521 U.S. at 134 (noting that denying any compensation to a claimant who has no present earnings loss "would run afoul of the Act's mandate to account for the future effects of disability in fashioning an award, since... the 1-year statute of limitations for modification after denial of compensation would foreclose responding to such effects on a wait-and-see basis as they might arise").

20
  See 521 U.S. at 131-32 (concluding that "[t]o implement the mandate of S 8(h)... "disability" must be read broadly enough to cover loss of capacity... as a potential product of injury and market opportunities in the future").

21
  Cf. Hole v. Miami Shipyards Corp., 640 F.2d 769, 773 (5th Cir. 1981) (reinstating de minimis award and observing that "it is the duty of the ALJ, not of the Board or of this court, to weigh the evidence and draw reasonable inferences therefrom").

22
  See Hole v. Miami Shipyards Corp., 640 F.2d 769 (5th Cir. 1981) (reversing Board, which "exceeded its statutory authority in substituting its judgment" for ALJ's in vacating award based on ALJ's conclusion of significant probability that worker would suffer some future economic harm as result of injury); LaFaille v. Benefits Review Board, 884 F.2d 54, 62 (2d Cir. 1989) (reversing ALJ and Board in concluding that where ALJ found a "progressive, obstructive lung disorder" which restricted claimant's ability to perform his former work, there was "substantial evidence that [claimant was] likely to suffer a future loss of earnings as his condition deteriorate[d] or when his environment change[d]", entitling claimant to a de minimis periodic payment).

23
  See Rambo v. Director, OWCP, 81 F.3d 840, (9th Cir. 1996), aff'd, 521 U.S. 121 (1997) (reversing denial of benefits and remanding for entry of a nominal award).

24
  Supplemental Decision and Order of ALJ Barnett, April 26, 1996 (32a).

25
  The Court specifically directs that the focus be "on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation" and notes that it is not "necessarily significant that a prevailing plaintiff did not receive all the relief requested."

26
  See Hensley, 461 U.S. at 440 (directing that "[a] reduced fee award is appropriate if the relief... is limited in comparison to the scope of the litigation as a whole").

27
  Because we find that the Board erred in remanding ALJ Barnett's fee award for recalculation in the first place, it is unnecessary for us to address the propriety of ALJ Chapman's shifting rationales for reducing the rate of Petitioner's counsel's fee or of her across-the-board reduction of the fee award. We note, however, the apparent injustice of applying a two-thirds reduction (against an already reduced rate) with respect to hours necessarily spent to establish jurisdiction, or on other issues that contributed to Petitioner's successful outcome. Penalizing a litigant for unsuccessful claims by reducing fees earned on successful claims could have a chilling effect on the willingness of counsel to advocate even meritorious positions in unsettled areas of the law. If the reduction in the present case were to stand, it might well be seen by the bar as a warning that counsel should not insist on rights secured under the law as interpreted by the Courts, when the Board has announced a contrary interpretation.

28
  See Hole v. Miami Shipyards Corp., 640 F.2d 769, 774 (5th Cir. 1981) (observing that where employer contests its liability for compensation in whole or in part and claimant is ultimately successful, employer must pay claimant's attorney's fees for services necessary to that success, including fees for legal services rendered before tribunals deciding against him, as well as for claimant's successful prosecution of appeal to Court of Appeals).


                             In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-3007

F REEDOM M ORTGAGE C ORPORATION,
                                                 Plaintiff-Appellant,
                                 v.

B URNHAM M ORTGAGE, INCORPORATED , et al.,

                                              Defendants-Appellees.

            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 03 C 6508—Robert W. Gettleman, Judge.

       A RGUED JUNE 1, 2009—D ECIDED JUNE 23, 2009

  Before E ASTERBROOK , Chief Judge, and B AUER and
E VANS, Circuit Judges.
   E ASTERBROOK, Chief Judge. The goal of a mortgage-
flipping scam is to deceive a potential lender about
the value of the collateral. Go-between G finds a
building for sale and arranges its sale to Buyer B for
more than its market value. B borrows the money for
the purchase, assisted by Appraiser A, who certifies to
the lender that the property is worth more than the
2                                             No. 08-3007

actual purchase price. Someone else (if not G himself)
certifies that B has put in a substantial down payment.
(Most lenders limit their exposure to 90% or less of the
property’s value; the buyer’s equity not only is extra
security but also ensures that the buyer will keep
the property in good shape.) Here is an example. Go-
between finds a property that can be purchased for
$50,000. Appraiser certifies that it is worth $100,000.
Buyer agrees to buy the property for $50,000 but tells
Lender that the price is $100,000 and that B will put up
$20,000 of his own funds. Lender provides the rest. At
closing, $50,000 of Lender’s money is paid to the original
owner; B and G split $30,000 (less the fee already paid to
Appraiser). B vanishes and never makes a payment on
the mortgage. When Lender forecloses, it suffers a $30,000
loss. See generally Decatur Ventures, LLC v. Daniel, 485
F.3d 387 (7th Cir. 2007).
   Freedom Mortgage Corporation contends in this suit
that the defendants conducted such a scam. The
principal defendants, Burnham Mortgage (a broker) and
its manager John Jeffrey Hlava, played the role of G in
our example. (So Freedom alleges; its assertions have
yet to be tested but must be accepted for current pur-
poses.) Other defendants played the roles of Buyer B and
Appraiser A. Two of the Buyer defendants have
pleaded guilty to criminal charges of fraud. Other Buyer
defendants cannot be located (Freedom Mortgage says
that Burnham used phony names), and one insists that
her identity had been stolen and that she had nothing to
do with the transaction. The Appraiser defendants say
that their appraisals were honest. Two title insurers
No. 08-3007                                               3

complete the cast of defendants. The insurers promised
to indemnify Freedom Mortgage not only for any defects
in title but also for damages caused by failure to close
the real-estate transactions according to Freedom’s
specifications. Freedom says that Burnham and Exeter
Title closed deals with phantom buyers, at phony prices,
and without the promised down payments, entitling it
to indemnity from the insurers. The insurers (Exeter
and Ticor Title) have refused to pay, asserting that
Burnham and Exeter followed Freedom’s closing instruc-
tions.
  Freedom contends that it is entitled to recoup its
losses under contracts with Burnham and the insurers. It
also contends that all defendants are liable in tort for
participating in a fraudulent scheme; it seeks actual and
punitive damages. Finally, Freedom maintains that the
fraudulent scheme was conducted using the mails and
interstate telecommunications system, exposing the
defendants to treble damages under 18 U.S.C. §1964(c),
part of the Racketeer Influenced and Corrupt Organiza-
tions Act. (Mail and wire fraud are predicate offenses
under RICO. 18 U.S.C. §1961(1)(B).)
  The large number of defendants, roles, and transactions
has caused the litigation to become protracted. It has not
helped that the case is on its third district judge. In 2006
Judge Filip, the second judge assigned to the case, con-
cluded in a lengthy opinion that Freedom’s potential
recovery is limited by the fact that it (or its agents) pur-
chased the properties at foreclosure sales. Freedom used
the mechanism of a credit bid. In other words, Freedom
4                                               No. 08-3007

bid some or all of the outstanding balance of the loan,
rather than cash. The judge concluded that, as a matter
of Illinois law, even though only Freedom and the
buyers were parties to the foreclosures, Freedom cannot
recover damages from any third party by contending
that the property was worth less than the amount of the
credit bid. 2006 U.S. Dist. L EXIS 10538 (N.D. Ill. Mar. 13,
2006).
  Here’s an illustration. Freedom loaned $244,211.37 on
the security of the real property at 7953 South Escanaba
Avenue in Chicago. When the buyer defaulted, Freedom
made a credit bid of $143,500 at the auction. That was
the winning bid. The state court awarded Freedom the
property and a default judgment of $100,711.37. Freedom
resold the property, realizing only $92,978.15. The
district court held that Freedom can not argue in this
suit that the property was worth less than $143,500. The
court reserved for future decision whether Freedom
can recover punitive damages under state law, or treble
damages under RICO, on account of this property, and
whether any of the non-buyer defendants may be liable
for the $100,711.37 deficiency. (The state court’s order
forbade Freedom to collect this deficiency from the
buyer but did not mention insurers and other third par-
ties.)
  Defendants then filed a welter of motions for sum-
mary judgment. Some of these motions argued the
merits and some that damages had been wiped out. Before
acting on these motions, Judge Filip accepted an appoint-
ment as Deputy Attorney General and resigned from the
No. 08-3007                                               5

bench. The case was reassigned to Judge Gettleman, who
granted the motions for summary judgment on the
ground that Judge Filip’s opinion shows that the
federal suit is barred by claim preclusion, see 28 U.S.C.
§1738 (state law governs the effect of state judgments),
plus the Rooker-Feldman doctrine. See Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923); District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462 (1983). As Judge
Gettleman saw things, Freedom is trying to wage a col-
lateral attack on the state judgments. 2008 U.S. Dist.
L EXIS 54465 (N.D. Ill. July 11, 2008).
  In this court the parties engage in vigorous debate
about whether Judge Gettleman correctly understood
and applied Judge Filip’s opinion. That topic is irrelevant.
The question we must decide is not the relation between
two opinions of the district court, but whether the judg-
ment of the district court correctly applies the Illinois
law of preclusion and the Rooker-Feldman doctrine.
Those legal issues are open to plenary consideration here.
  We start with the Rooker-Feldman doctrine, because it
is a jurisdictional rule. Only the Supreme Court of the
United States may review the judgment of a state court
in civil litigation. But Freedom Mortgage isn’t trying
to overturn any judgment. The question at hand is the
effect of the foreclosure judgments, under the state’s law
of issue and claim preclusion. The Rooker-Feldman
doctrine does not displace §1738 and turn all disputes
about the preclusive effects of judgments into matters
of federal subject-matter jurisdiction. See Lance v. Dennis,
546 U.S. 459 (2006). The Rooker-Feldman doctrine is con-
6                                              No. 08-3007

cerned with “cases brought by state-court losers com-
plaining of injuries caused by state-court judgments”.
Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S.
280, 284 (2005). Freedom Mortgage, the winner in the
state cases, complains about injuries caused by fraud
that predated the state litigation and is neither addressed
nor redressed by the foreclosure judgments. The Rooker-
Feldman doctrine does not prevent the pursuit of compen-
sation for injury caused by fraudulent schemes, even
though §1738 and the principles of defensive non-
mutual issue preclusion may limit the recoverable dam-
ages.
  As for preclusion: Why would either issue or claim
preclusion block all recovery against non-parties to the
state proceedings? Take a simple situation. Freedom
lends to Borrower B against two kinds of security: the
real property, and a guaranty of B’s note by a solvent
obligor, such as B’s rich uncle. If B defaults, Freedom
will foreclose on the note and mortgage, then try to
collect the deficiency judgment from B’s uncle. Illinois
law permits a separate action on the guaranty. See
Farmer City State Bank v. Champaign National Bank, 138 Ill.
App. 3d 847, 852, 486 N.E.2d 301 (1985); LP XXVI, LLC v.
Goldstein, 349 Ill. App. 3d 237, 811 N.E.2d 286 (2004). The
uncle cannot invoke claim preclusion on the theory that
all potentially liable parties must be joined in the fore-
closure action. Nor can the uncle use issue preclusion
to avoid payment. A lender’s credit bid conclusively
resolves the property’s market value. Thus Freedom
could not lend $250,000, make a credit bid of $200,000,
and still collect more than $50,000 on the uncle’s guar-
No. 08-3007                                                 7

anty. Judge Filip’s comprehensive opinion covers
that ground; we need not repeat its explanation. See
also Chrysler Capital Realty, Inc. v. Grella, 942 F.2d 160 (2d
Cir. 1991) (Michigan law); Alliance Mortgage Co. v. Rothwell,
10 Cal. 4th 1226, 900 P.2d 601 (1995). But Freedom could
collect the unpaid $50,000 from the guarantor. And if, as a
matter of Illinois law, a lender may sue a guarantor
separately, why not a mortgage broker, title insurer,
appraiser, or other potentially liable entity?
   Defendants’ answer is that collection against a
guarantor is justified by the waiver clause common in
guaranty contracts. The guaranty at issue in LP XXVI, for
example, waived “any and all rights or defenses arising
out of . . . any ‘one action’ or ‘anti-deficiency’ law”. 349
Ill. App. 3d at 238. None of their contracts has such lan-
guage, defendants submit.
   The problem with this argument is that there was no
such language in the guaranty at issue in Farmer City
State Bank, and the court in LP XXVI made nothing of the
waiver. Language of this sort is added by lawyers
drafting an instrument that will be used in many states.
What Farmer City State Bank and LP XXVI hold is that
Illinois does not require all claims to be made in a
single action, and there is no need for a waiver of a nonex-
istent mandatory-joinder rule. Illinois follows the same-
transaction approach to claim preclusion. See River
Park, Inc. v. Highland Park, 184 Ill. 2d 290, 309–10, 703
N.E.2d 883 (1998). Farmer City State Bank and LP XXVI
concluded that claims on a guaranty do not arise from
the same transaction as the note. A claim on a note de-
8                                             No. 08-3007

pends on the borrower’s promise to pay; a claim on a
guaranty depends on the lender’s inability to collect
from the borrower. Most guarantees are discharged
when the borrower pays (or the collateral proves to be
sufficient); that’s enough to show that claims on the note
and guaranty don’t rest on the same transaction. Often a
claim on a guaranty must wait until other sources of
payment have been exhausted, and the deficiency judg-
ment in the foreclosure action resolves how much
the guarantor owes.
  Claims against the borrower on the note, and against
a mortgage broker for fraud, are even less related than
claims on a note and guaranty. The questions litigated in
a mortgage foreclosure action are (a) did the borrower
make the promised payments?, and, if not, then (b) how
much is the collateral worth? The sort of questions that
Freedom wants to litigate against these defendants are:
(a) did they obtain spurious appraisals?; (b) did they
misrepresent the borrowers’ identities?; (c) did they
misrepresent the amount of the borrowers’ down pay-
ments; and (d) did they manage an “enterprise” through
a “pattern of racketeering activity”? Whether the
borrower paid is distinct from whether these defendants
committed fraud that induced Freedom to make loans,
or whether Burnham followed Freedom’s prescribed
closing procedures (the main issue in the action on the
insurance policies). We cannot imagine any argument
for allowing a separate action on a guaranty, while pre-
cluding a separate action against people who induced
the loan through fraud.
No. 08-3007                                            9

   So much for claim preclusion—the modern name for
the merger and bar components of res judicata. See Taylor
v. Sturgell, 128 S. Ct. 2161, 2171 n.5 (2008). Defendants
get some aid from issue preclusion (collateral estoppel),
given the rule that Freedom is stuck with the value of
its credit bids. But this does not eliminate damages.
Deficiency judgments remain, and the non-borrower
defendants cannot shelter behind the clause in these
judgments precluding collection from the borrowers. The
total amount of deficiency judgments on the properties
at issue in this suit is almost $600,000. If Freedom can
make out its claim on the merits, some or all of these
defendants may be liable for that shortfall. Indeed, if
Freedom prevails on its RICO claim, some or all of the
defendants may be liable for three times that shortfall.
Punitive damages also may be available under Illinois
law. Nothing in the rule that a credit bid establishes
the collateral’s value blocks any of these remedies.
  The state court’s judgments may have some other
effects as well. For example, the insurers contend that
Freedom’s willingness to forego the collection of any
deficiency from the borrowers impairs their right of
subrogation and so releases the claims on the insurance
contracts. That may or may not be right; if the borrowers
were phantoms, or judgment proof, Freedom has not
surrendered anything of value to the insurers. The insur-
ance contracts bar recovery only “to the extent that” the
right of subrogation has been impaired, which means,
Freedom says, that the insurers must show what they
lost as a result of the no-collection-from-the-borrowers
clauses in the state judgments. It would be premature
10                                              No. 08-3007

to address this issue now. Wrongly believing that Free-
dom’s claim was entirely blocked by the very fact of the
credit bids, the district court did not tackle this subject.
This and the other unresolved issues deserve the district
court’s speedy attention. This suit has passed its sixth
anniversary and should not be allowed to grow a beard.
  The judgment is reversed, and the case is remanded
for proceedings consistent with this opinion.

                           6-23-09


                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                            No. 12-7282

MAURICIO E. WEBER,

                Plaintiff - Appellant,

          v.

G. ROSS ANDERSON, JR., sued in official capacities; J.
CORDELL MADDOX, JR., Chief Administrative Judge; SOLICITOR
CHRISSY T. ADAMS; ASSISTANT SOLICITOR KRISTIN W. REEVES;
ASSISTANT SOLICITOR JENN BYFORD; CHRISTOPHER SCALZO, Public
Defender 10th Judicial Circuit,

                Defendants - Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Anderson.   Timothy M. Cain, District Judge.
(8:12-cv-01231-TMC)

Submitted:   October 11, 2012             Decided:   October 16, 2012

Before KING, DUNCAN, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Mauricio E. Weber, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Mauricio E. Weber appeals the district court’s order

accepting      the   recommendation       of    the   magistrate       judge    and

dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C.

§ 1915(e)(2)(B) (2006).         We have reviewed the record and find

that   this    appeal   is   frivolous.        Accordingly,     we    dismiss    the

appeal for the reasons stated by the district court.                     Weber v.

Anderson,     No.    8:12-cv-01231-TMC      (D.S.C.    July    6,     2012).     We

dispense      with   oral    argument     because     the     facts    and     legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                        DISMISSED

                                        2


528 F.2d 572
18 UCC Rep.Serv. 1140
RALLI-CONEY, INC., et al., Plaintiffs-Appellees,v.Derryal GATES et al., Defendants-Appellants.
No. 75--2688 Summary Calendar.*
United States Court of Appeals,Fifth Circuit.
March 12, 1976.

R. L. Holladay, P. J. Townsend, Jr., Drew, Miss., for defendants-appellants.
Jerry H. Blount, Jackson, Miss., for D. Gates.
Jack F. Dunbar, William Dean Stark, Clarksdale, Miss., for plaintiffs-appellees.
Appeal from the United States District Court for the Northern District of Mississippi.
Before BROWN, Chief Judge, GODBOLD and GEE, Circuit Judges.
JOHN R. BROWN, Chief Judge:

1
This is a diversity case and once again the Fifth Circuit has been compelled to ride on the winding and often perilous tracks of the Erie Railroad.  Fortunately, our engineer, the trial court, with an eye to the rather sparse Mississippi precedent and to the Uniform Commercial Code as adopted by Mississippi and a firm hand on the ever present throttle of generally accepted principles of contract law has made our trip a safe one and accordingly we affirm.

2
This case involves a standard 'forward' contract for the sale of cotton not yet grown.  Typically, three parties are involved in the transaction, the farmer, a broker, and one or more cotton merchants.  Usually the farmer enters into a contract with the broker for the sale of cotton grown on a specified acreage and the broker in turn locates a cotton merchant interested in purchasing the cotton and thereafter negotiates a sale of the cotton which is usually formalized by an agreement between the farmer and the merchant.  However, in this scenario we are confronted with another player to fill out our cast of characters, a lessor of the farm land who claims an interest in the crop.

3
Gates (farmer-lessee) entered into an oral contract to lease the subject property from Dr. Rotenberry (lessor) and the rent was to be one-fourth of his cotton crop in kind.1 Thereafter, on a date no earlier than November 13, 19702 Gates entered into a marketing agreement with Staple Cotton Cooperative Association, a broker, whose business it was to effectuate sales between farmers and cotton merchants of cotton to be produced in the future.  On or about March 7, 1973, Gates entered into a contract with Ralli-Coney, Inc., a cotton merchant, through its agent Staple, for the sale of 300 acres of cotton to be grown on the land which he leased from Dr. Rotenberry.  Similarly, on May 4, 1973 Gates entered into another contract to sell the cotton produced on 500 acres of the same land to Dunavant Enterprises, Inc., another cotton merchant.

4
Due to heavy rains causing flood conditions in the area where Gates' leased land was located he was only able to plant 717 acres rather than the expected 1,066 acres.  As a result he was unable to fulfill the obligations described above and accordingly made an equitable distribution of the cotton produced among the two cotton merchants and the lessor, pursuant to § 75--2--617 of the Mississippi Code of 1972.  Thus, this law suit is brought by the cotton merchants against Gates and Dr. Rotenberry's estate to recover the whole crop on the premise that the 800 acres for which they contracted exceeded the 717 acres which were productive and because of this they were entitled to all the cotton which was produced.

5
On this appeal the defendants challenge the trial court's order granting a partial summary judgment on the issue of liability in favor of the plaintiffs, cotton merchants.3 Three issues are presented: (i) Was partial summary judgment inappropriate because there existed a factual dispute taking the form of parol evidence as to the meaning of the contracts between Gates and the cotton merchants, (ii) Did the trial court err in overruling defendant's motion for J.N.O.V. or new trial because Dunavant Enterprises, Inc., had an operation which was localized in Mississippi and did not qualify to do business in Mississippi as required by Mississippi law and thus could not enforce this contract in Mississippi, (iii) Was Staple Cotton Cooperative Association, a Mississippi corporation, an indispensable party to this law suit whose presence therein destroyed diversity jurisdiction?

6
With respect to the first issue we are under the satrapy of F.R.C.P. 56(c) which specifies that a summary judgment is appropriate only if the trial court determines 'that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law'.  (Emphasis supplied).  See also Shahid v. Gulf Power Company, 5 Cir., 1961, 291 F.2d 422, 423; 6 Moore's Federal Practice P56.01(1) et seq.  (2d ed. 1975).

7
We believe the trial judge acted properly in finding that there was no material factual dispute.  The language of the contracts was clear and under Mississippi law parol evidence is inadmissible to contradict, vary, alter, add to, or detract from, the written instrument when it is clear on its face.  See, e.g., Allen v. Allen, Miss.Sup.Ct., 1936, 175 Miss. 735, 168 So. 658; accord, Paoli v. Anderson, Miss.Sup.Ct., 1968, 208 So.2d 167; Fuqua v. Mills, 1954, 221 Miss. 436, 73 So.2d 113.

8
The defendants rely on Dunavant Enterprises, Inc. v. Ford, Miss.Sup.Ct., 1974, 294 So.2d 788, wherein the Court allowed parol evidence to explain which acreage was to be covered under a similar forward contract.  However, in the case at hand there is no ambiguity as there was in Ford because the language of both contracts clearly provides that the contracts were for the sale of all cotton produced on the accurately described acreage.  If Gates had wished to exempt that one-fourth of the cotton which was already committed to Dr. Rotenberry he should have put that limitation in the contracts, but parol evidence which establishes this limitation is plainly contradictory to the terms of the written contracts and barred from admission into evidence by the Mississippi parol evidence rule.  In this posture, the trial court correctly held that this factual dispute was immaterial to the determination of the legal rights and obligations under the contracts.

9
Moreover, we affirm the trial court's decision that the plaintiffs, cotton merchants, were entitled to judgment as a matter of law. When read together §§ 75--2--102, 105, 107 of the Mississippi Code of 1972 indicate that forward contracts for the sale of yet to be grown cotton fall within the Mississippi codification of the Uniform Commercial Code.  Section 75--2--402(1) of the Code subordinates the rights of the seller's unsecured creditors in the subject matter to those of the buyer.4 Thus, we hold that the cotton merchants are entitled to the whole crop and the lessor's remedies, if any, are against the lessee, but since this issue is not before us on this appeal we express no opinion as to the legal obligations of these parties.

10
We need not dwell on the defendants' claim that Dunavant cannot enforce this contract in Mississippi courts because it has failed to procure a certificate of authority to do business in the state as required by Section 79--3--21 of the Mississippi Code of 1972.  In rejecting this contention we rely on the Supreme Court's recent decision in Allenberg Cotton Co., Inc. v. Pittman, 1974, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195 which also concerned forward contracts for cotton produced in Mississippi.  In holding that cotton merchants who had failed to qualify to do business in Mississippi could nevertheless enforce sales contracts in the state, the Court stressed that the cotton exchange business involved an intricate interstate marketing mechanism of which one primary component was the forward contract.  Thus, to allow state statutes to impede this nation-wide marketing system would place a heavy burden on interstate commerce in contravention of the commerce clause of the United States Constitution.

11
The mere fact that Dunavant's business involved some intrastate operations is inconsequential because the cotton exchange business was predominantly interstate in nature and was unquestionably part of the interstate marketing mechanism which the Supreme Court sought to protect in Allenberg.  See also Dahnke-Walker Milling Co. v. Bondurant, 1921, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239.

12
Finally, we hold that the trial court acted within the bounds of sound discretion and within his authority under Rule 21 F.R.C.P.5 in dismissing the broker, Staple Cotton Cooperative Association to preserve diversity jurisdiction.  Rule 19(b) establishes four tests to judge whether a party is indispensable to the law suit.  (i) To what extent will a judgment entered in the party's absence be prejudicial to him?  Although Staple technically had legal title to the cotton at the time the forward contracts were entered, Staple had no performance obligations under the contracts and does not at this time assert any rights in the cotton or the proceeds of the sale thereof.  Thus, an adverse judgment would not affect Staple's interest to any significant degree.  See also 3A Moore's Federal Practice P19.07--2(1) (2d ed. 1975).  (ii) The extent to which the judgment can be tailored to minimize prejudice to the absent party.  This factor is inapplicable here because no significant prejudice to Staple exists in the first place.  (iii) Will the judgment entered in the party's absence be adequate?  Most assuredly the persons who are withholding the cotton are Gates and Dr. Rotenberry's estate and a judgment bringing them to toll would be sufficient to solve the plaintiffs' problems.  See also 3A Moore's Federal Practice P19.07--2(3) (2d ed. 1975).  (iv) Will the plaintiffs have an adequate remedy if the action is dismissed for nonjoinder?  Certainly the plaintiffs could refile their action in state court but the interest of judicial efficiency and an expeditious resolution of this dispute seem to carry the day in the absence of any significant prejudice to the rights of Staple.

13
Affirmed.

*
 Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I

1
 Since Dr. Rotenberry has died during the pendency of this litigation the executor of his estate, William Lamar Hooker, has been substituted as a party defendant

2
 It was impossible for this Court or the District Court to determine the exact date on which Gates entered into the marketing agreement with Staple Cotton Cooperative Association because of the poor quality of the photo copy of this agreement.  However, since only the last digit of the year is illegible it is possible to determine that the contract was executed no earlier than November 13, 1970

3
 Liability was established as permitted by F.R.C.P. 56(d) against the defendants by the Court's order of November 22, 1974 (App. 89--90).  Thereafter, on April 23, 1975 the Court entered a final judgment (App. 90--91) and this appeal is taken from that order.  Since appeal was not taken until entry of the final judgment there is no necessity in this case that the trial judge certify the partial summary judgment on liability for immediate appeal in accordance with F.R.C.P. 54(b)

4
 Under Mississippi law, legal title to the crops is vested in the lessee, Gates, subject to the landlord's lien for unpaid rent, Lewis v. Latham, 1955, 224 Miss. 107, 79 So.2d 811, which could be asserted only against the lessee absent some valid security interest in favor of the lessor

5
 Rule 21 F.R.C.P. provides in pertinent part: Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just


242 Md. 240 (1966)
218 A.2d 684
HAMILTON
v.
HAMILTON
[No. 190, September Term, 1965.]
Court of Appeals of Maryland.
Decided April 19, 1966.
Motion for rehearing filed May 18, 1966.
Denied May 26, 1966.
Certiorari denied October 24, 1966.
The cause was argued before PRESCOTT, C.J., and HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ.
Marker J. Lovell, with whom was J. Richard Wilkins on the brief, for the appellant.
*242 Robert J. Cooke for the appellee.
Certiorari denied, Supreme Court of the United States, October 24, 1966.
BARNES, J., delivered the opinion of the Court.
The question on this appeal is whether the Chancellor abused his discretion in denying the motion of Mary C. Hamilton (the appellant) to set aside a decree of divorce a vinculo matrimonii. On January 22, 1965 the Circuit Court for Carroll County awarded C. Harold Hamilton (the appellee) a decree of divorce on the ground of constructive desertion. The appellant was served with summons in the divorce action. She consulted counsel in regard to the divorce but did not retain his services. She answered the bill for divorce by a document drawn up by herself in proper person.
The case was originally set for a hearing on November 11, 1964 but was later postponed to January 22, 1965. The appellant had notice of when the hearing was to be held and she expressly stated in letters to the appellee dated November 16, 1964 and January 18, 1965, copies of which she sent to the Circuit Court, that she would not appear at the hearing to contest the proceedings. She stated in her letter of November 16th: "I will let the giving and getting of a Divorce A Vinculo * * * be up to the conscience of the Court."
After Mrs. Hamilton failed to appear at the proceedings for divorce and a decree was entered against her, she retained counsel and within a thirty day period  before the decree became enrolled  she filed a motion to set it aside pursuant to Maryland Rule 625. She contends that the decree should be set aside because she was not represented by counsel and was not fully apprised of the nature of the hearing. She did not know that she could be precluded from contesting the divorce which was granted after she did not appear at the proceedings. The appellant alleges, moreover, that she possesses a meritorious defense to her husband's claim of constructive desertion.
In Ryan v. Johnson, 220 Md. 70, 150 A.2d 906 (1959) we quoted with approval from Clarke Baridon v. Union Co., 218 Md. 480, 483, 147 A.2d 221, 223 (1958) where Judge Hammond, for the Court, said:
"After the judgment properly was entered, the question of whether it should or should not be vacated in *243 whole or in part was within the sound discretion of the trial court for the ensuing thirty days. The decisive point no longer was whether there existed a genuine dispute as to a material fact, but rather whether the court was satisfied that there had been shown a reasonable indication of a meritorious defense or other equitable circumstances that would justify striking the judgment  that is, whether the court entertained a reasonable doubt that justice had not been done."
When a motion is made to set aside an unenrolled decree the trial court possesses an extremely broad power of revision and must exercise its discretion liberally "lest technicality triumph over justice." Eshelman Motors v. Scheftel, 231 Md. 300, 189 A.2d 818 (1963). The trial court's discretion is not restricted in regard to setting aside an unenrolled decree as it is where the decree has become enrolled, after which it may then only be revised on grounds of fraud, mistake or irregularity. Maryland Rule 625a. In the case of an enrolled decree even a possible error in the entry of a summary judgment may not constitute such a mistake as would warrant setting it aside. Rhodes Co. v. Blue Ridge Co., 218 Md. 329, 146 A.2d 771 (1959). See Tasea Investment Corp. v. Dale, 222 Md. 474, 160 A.2d 920 (1960) and Newark Trust Co. v. Trimble, 215 Md. 502, 138 A.2d 919 (1958).
While there is a strong public policy in favor of sustaining the finality of divorce decrees (Leatherbury v. Leatherbury, 233 Md. 344, 196 A.2d 883 (1964)), this policy would not operate in regard to an unenrolled decree before parties could have changed their position and relied on it to their detriment. Cf. Pryor v. Pryor, 240 Md. 224, 213 A.2d 545 (1965) and cases cited therein.
We hold that the Chancellor did not abuse his discretion in refusing to set aside the decree of divorce. No colorable meritorious defense has been interposed by Mrs. Hamilton.
At the original hearing for divorce Mr. Hamilton testified that his wife segregated him from the rest of the family, that he lived in the corner of the attic of his home, and while he was allowed to eat dinner with his wife and children, the children were not allowed to speak to him, nor could they pass *244 food to him at the table. His children were not permitted to associate with their father at all.
Mrs. Hamilton ordered her husband out of the house on numerous occasions and had made several "scenes" in the street. On one occasion she tore his clothes from him as they were leaving church. During the course of many altercations between the Hamiltons the wife would physically assault her husband. In the spring of 1962, Mrs. Hamilton rented an apartment for her husband and left a note instructing him to leave the home. Mr. Hamilton ignored the message and continued to live in the attic, usually coming down only to take his meals.
A trial magistrate had committed Mrs. Hamilton to three weeks observation at Springfield State Hospital after her husband had filed a complaint for disorderly conduct against her. On June 22, 1962 Mr. Hamilton left his home and took his minor children with him when he learned that his wife was about to be released from the hospital. He possessed a court order granting him custody of the children. Mr. Hamilton's testimony was corroborated by that of his daughter, Mildred Ann Hamilton.
Approximately two and one half years after their separation Mr. Hamilton filed suit for divorce a vinculo matrimonii. The Hamiltons' minor children are presently residing in foster homes. Their oldest daughter lives with Mrs. Hamilton. Mr. Hamilton attempted to resolve his differences with his wife during the first few months of their separation; however, these attempts were not successful.
On the basis of Mr. Hamilton's testimony the Chancellor was clearly justified in finding that the misconduct of his wife rendered a continuation of the marital relationship unbearable, and that Mr. Hamilton could not continue to live with his wife without the loss of his "health, safety and self respect." See Bryce v. Bryce, 229 Md. 16, 181 A.2d 455 (1962); Scheinin v. Scheinin, 200 Md. 282, 89 A.2d 609 (1952); Reicher v. Reicher, 196 Md. 494, 77 A.2d 7 (1950); Eberwein v. Eberwein, 193 Md. 95, 65 A.2d 792 (1949). Under the circumstances Mr. Hamilton was justified in leaving his wife since her actions clearly evidenced the intention that the marriage relation no longer exist. See Applegarth v. Applegarth, 239 *245 Md. 92, 99, 210 A.2d 362, 367 (1965) and cases cited therein. The Chancellor could have found that no reasonable hope or expectation of a reconciliation existed.
In her motion to set aside the divorce decree Mrs. Hamilton does not refute any of the testimony presented by her husband. She claims, as a meritorious defense, that after the birth of their tenth child the Hamiltons mutually agreed not to cohabit. She questions, moreover, the legal sufficiency of the corroboration of her husband's testimony.
The sexual abstinence of the Hamiltons for a period prior to June 22, 1962 did not amount to a voluntary separation since they were not living separately and apart at that time. Matysek v. Matysek, 212 Md. 44, 128 A.2d 627 (1957); Beck v. Beck, 180 Md. 321, 24 A.2d 295 (1942). The agreement to forego sexual relations is not apposite to this case since the gravamen of Mr. Hamilton's claim of constructive desertion is based on the generally abusive misconduct of his wife and not on her refusal to have marital relations with him.
In regard to the corroboration of Mr. Hamilton's testimony, we find that it was legally sufficient. Mildred Ann Hamilton's testimony supported that of her father on all the essential elements of his case.
Order affirmed, with costs.


730 F.2d 768
Orange Belt District Council of Painters, No. 48v.K.R. Sims Co., Inc.
NO. 83-5828
United States Court of Appeals,ninth Circuit.
JAN 04, 1984

1
Appeal From:  C.D.Cal.

2
AFFIRMED.


94 Cal.App.2d 740 (1949)
THE PEOPLE, Respondent,
v.
NORMAN MORTON FRANK, Appellant.
Crim. No. 4391.
California Court of Appeals. Second Dist., Div One.
Nov. 22, 1949.
 Gladys Towles Root for Appellant.
 Fred N. Howser, Attorney General, and Henry A. Dietz, Deputy Attorney General, for Respondent.
 DRAPEAU, J.
 Defendant was charged by information with contributing to the delinquency of a minor (Welf. & Inst. Code,  702), a misdemeanor. He waived preliminary hearing and pleaded "guilty as charged in the information as deemed filed." He also waived time for sentence and applied for probation. Thereafter the court pronounced judgment and sentence as follows: "Defendant is sentenced to the County Jail ... for the term of one year. Execution of sentence is suspended and Defendant granted probation for a period of five years under the following conditions: Defendant must serve the first nine months of his probationary period in the County Jail with good time allowed, if earned. County Road Camp is recommended. Defendant is not to practice medicine while on probation."
 While defendant in pro. per., appeals from the order granting probation, that order is contained in and made a part of *741 the judgment of the trial court imposing sentence; hence it will be assumed that this appeal is from such judgment.
 [1] It is here urged that the condition prohibiting appellant from the practice of medicine while on probation is unreasonable and beyond the power of the trial judge to invoke.
 Appellant pleaded guilty to the commission of a lewd and lascivious act upon the person of a 10-year-old girl, who at the time was in a plaster cast. The record discloses that appellant was a pediatrician and that two psychiatrists were appointed to examine him in connection with another matter arising out of the instant transaction but which has since been dropped.
 Appellant was prosecuted under section 702 of the Welfare and Institutions Code which provides: "The juvenile court shall have original jurisdiction over all misdemeanors defined in this section, and in all prosecutions hereunder, shall cause the defendant to be duly arraigned and plead to the charge made against him in the manner provided in the Penal Code upon an indictment or information. In all cases where the defendant prosecuted under this section enters a plea of guilty, the juvenile court shall have jurisdiction to impose sentence or in its discretion to grant probation upon such terms as it deems proper."
 In People v. Blankenship, 16 Cal.App.2d 606, 609, 610 [61 P.2d 352], wherein defendant pleaded guilty to the crime of rape and was granted probation upon condition that he submit to a vasectomy, it was contended that this was an unreasonable condition to be imposed as a prerequisite for probation.
 The court there held otherwise, and enunciated some of the fundamental principles relating to the matter of probation:
 "It must, in the first place, be conceded that the granting or withholding of probation is a matter that rests entirely in the sound discretion of the trial court. (Sec. 1203, Pen. Code; People v. Judson, 128 Cal.App. 768, 774 [18 P.2d 379].) In the second place, probation is not a right which is given to a defendant in a criminal proceeding who has either pleaded guilty to the commission of an offense or has been duly convicted thereof. 'It is an act of grace and clemency granted to a deserving defendant whereby he may escape the extreme rigors of the penalty imposed by law for the offense of which he stands convicted.' (People v. Hamline, 219 Cal. 532, 534 [28 P.2d 16]; People v. Payne, 106 Cal.App. 609, 613 [289 P. 909].) The only right which an applicant for probation possesses *742 is that his petition shall receive consideration by the court. He may not demand clemency as a matter of right. (People v. Roach, 139 Cal.App. 384, 378 [33 P.2d 895].) ..."
 "In conclusion, it may be remarked that appellant was not compelled by the condition which the court imposed to submit to an operation whose effect would be to foreclose him from procreation. He was permitted to elect whether he would comply with the condition and receive the clemency which he asked or decline to submit to the operation and accept the penalty which the law provides as punishment for his offense. It is our conclusion that under the circumstances here presented the condition was neither unreasonable nor improper and that the trial court committed no abuse of discretion in imposing it." See, also, People v. Billingsley, 59 Cal.App.2d Supp. 845, 849 [139 P.2d 362], where it is stated: "The right of a defendant to refuse probation is a necessary safeguard against the possibility that the conditions of probation may be more onerous than the sentence. The power of the court to impose conditions of probation is very great."
 That the trial court considered this one of the most aggravated cases that had ever come before him is evidenced by his comments at the time he placed appellant on probation and imposed the condition here excepted to.
 In view of the circumstances presented by the record herein, there was no abuse of discretion on the part of the trial court in granting probation subject to conditions.
 The judgment is affirmed.
 White, P. J., and Doran, J., concurred.


                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                            No. 10-7335

BRIAN RICHARD CHAPMAN,

                Petitioner - Appellant,

          v.

C. F. WALLACE, Warden; VIRGINIA DEPARTMENT OF CORRECTIONS;
LUNENBURG CORRECTIONAL CENTER,

                Respondents - Appellees.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:10-cv-00004-sgw-mfu)

Submitted:   December 16, 2010            Decided:   December 29, 2010

Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Brian Richard Chapman, Appellant Pro Se.          Alice Theresa
Armstrong, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Brian        Richard    Chapman      seeks    to       appeal    the   district

court’s    order    denying        relief   on    his    28    U.S.C.       § 2254    (2006)

petition.     The order is not appealable unless a circuit justice

or judge issues a certificate of appealability.                             See 28 U.S.C.

§ 2253(c)(1) (2006).           A certificate of appealability will not

issue     absent     “a    substantial        showing         of     the    denial    of   a

constitutional right.”             28 U.S.C. § 2253(c)(2) (2006).                  When the

district court denies relief on the merits, a prisoner satisfies

this    standard     by    demonstrating         that    reasonable         jurists    would

find that the district court’s assessment of the constitutional

claims is debatable or wrong.               Slack v. McDaniel, 529 U.S. 473,

484    (2000);     see    Miller-El    v.   Cockrell,          537    U.S.    322,    336-38

(2003).     When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive

procedural ruling is debatable, and that the petition states a

debatable claim of the denial of a constitutional right.                              Slack,

529 U.S. at 484-85.           We have independently reviewed the record

and conclude that Chapman has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.        We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

                                            2
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                   DISMISSED

                                    3