231 F.Supp.2d 499 (2002)
Rickey P. ADAMS
v.
PRO SOURCES, INC. and North River Insurance Company
No. CIV.A.01-601-D.
United States District Court, M.D. Louisiana.
October 9, 2002.
*500 Richard Paul Bullock, Baton Rouge, LA, Gregory S. Johnson, Bullock & Johnson, Baton Rouge, LA, for Plaintiff.
David A. Bowling, Douglas R. Kraus, Wilson & Bowling, New Orleans, LA, T. Tucker Hobgood, Atlanta, GA, for Pro Source, Inc.
G. Benjamin Ward, Phelps, Dunbar, L.L.P., New Orleans, LA, for North River Insurance Co.

RULING ON MOTION FOR SUMMARY JUDGMENT AND ORDER
BRADY, District Judge.
This matter is before the Court on cross motions for summary judgment (docs. 18 & 28) filed by North River Insurance Company ("North River") and Pro Sources, Inc. ("Pro Sources") respectively. Both motions for summary judgment have been opposed. There is no need for oral argument. This case was originally filed in Louisiana state court and removed to this Court under 28 U.S.C. 1441. Subject matter jurisdiction exists pursuant to: (1) 28 U.S.C. § 1331, federal question jurisdiction; and, (2) 28 U.S.C. § 1332, diversity jurisdiction.
This insurance coverage dispute arises from an employment discrimination and retaliation lawsuit (the "underlying lawsuit") filed by Rickey P.Adams ("Adams") against Pro Sources. Adams alleges that not only was he subject to an unlawful hostile environment under federal and state employment discrimination laws, but also that Pro Sources defamed him in retaliation for complaining about the discriminatory treatment that Adams suffered while employed at Pro Sources. At issue for the purposes of the cross motions for summary judgment is whether North River owes a duty to defend or indemnify Pro Sources in this case because of an employment-related *501 practices exclusion in a commercial general liability insurance policy.

I. FACTUAL BACKGROUND
The material facts necessary for a decision are not in dispute. According to the complaint in the underlying lawsuit, Adams was employed by Pro Sources as a truck driver from November 1999 through February 2000. Although Pro Sources suggests in its motion for summary judgment and supporting documentation that Adams voluntarily terminated his employment with Pro Sources on February 23, 2000, the complaint alleges that the actual termination date was March 1, 2000.[1]
The primary basis of Adams' complaint is that he was subject to a hostile work environment under federal and state anti-discrimination laws.[2] Adams' complaint alleges that on or about February 23, 2000, Adams filed a discrimination complaint internally with Pro Sources. Adams also alleges that he was subject to unlawful retaliation under federal and state anti-discrimination laws, or alternatively, that Pro Sources defamed him when Pro Sources updated an online database system ("DAC") with information surrounding Adams' final day with Pro Sources. DAC is an information system which allows employers in the trucking industry to satisfy their legal obligation imposed by regulations imposed by the Federal Motor Carrier Safety Administration, a division of the United States Department of Transportation, concerning former employees to prospective employers.
North River issued a Commercial General Liability Insurance Policy (the "Policy") to Pro Sources that provides several different coverages, including personal and advertising injury coverage. The Policy's coverage is subject to a number of exclusions. The relevant exclusion[3] for the purposes of this decision is the "Employment-Related Practices Exclusion." The language of the Employment-Related Practices Exclusion is as follows:
This insurance does not apply to:
"Personal and advertising injury" to:
(1) A person arising out of any:
(a) Refusal to employ that person;

*502 (b) Termination of that person's employment; or
(c) Employment related practices, policies, acts, or omissions, such as coercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation or discrimination directed at that person....
North River argues that Adams' employment discrimination claims, retaliation claim, and the defamation claim are clearly excluded from coverage under the Policy due to the Employment-Related Practices Exclusion. Pro Sources argues that the Employment-Related Practices Exclusion was meant to apply only to those acts coinciding with the period of employment, and because Adams' claims arose after he terminated his employment with Pro Sources, North River has a duty to defend and indemnify Pro Sources in the underlying lawsuit.

II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the pleadings, answers to interrogatories, admissions, depositions, and affidavits on file indicate that there is no genuine issue of material fact, and therefore, that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the burden at trial rests on the non-movant, as it does here, the movant need only demonstrate that the record lacks sufficient evidentiary support for the non-movant's case. See id. The movant may do this by showing that the evidence is insufficient to prove the existence of one or more elements essential to the non-movant's case. Id.
Although this Court considers the evidence in the light most favorable to the non-movant, the non-movant may not merely rest on allegations set forth in the pleadings. Instead, the non-movant must show that there is a genuine issue for trial. See Anderson v. Liberty Lobby, 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Conclusory allegations and unsubstantiated assertions will not satisfy the non-movant's burden. See Grimes v. Tex. Dep't of Mental Health, 102 F.3d 137, 139-40 (5th Cir.1996) If, once the non-movant has been given the opportunity to raise a genuine factual issue, no reasonable juror could find for the non-movant, summary judgment will be granted. See Celotex, 477 U.S. at 322; see also Fed. Rule Civ. P. 56(c).

III. ANALYSIS AND CONCLUSIONS

A. Duty to Defend
In Louisiana, there are a few basic rules regarding an insurer's obligation to defend its insured. First, an insurer's obligation to defend suits against its insured is broader than its liability for damage claims, and that duty to defend is determined by the allegations in the injured plaintiff's petition. See Am. Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253, 259 (La.1969). Second, insurers are obligated to provide a defense unless the petition unambiguously excludes coverage. Id. Third, while the insured bears the burden of proving the existence of the policy and coverage, i.e. the "requirements" for coverage, see Tunstall v. Stierwald, 809 So.2d 916, 921 (La.2002)(citing Collins v. New Orleans Pub. Serv., Inc., 234 So.2d 270 (La.Ct.App. 4th Cir. 1970)), the insurer bears the burden of proving the existence of policy limits or exclusions. See Tunstall, 809 So.2d at 921 (citing Mass. Protective Ass'n v. Ferguson, 168 La. 271, 121 So. 863 (La.1929)). Finally, any ambiguity in the insurance contract is construed in favor of the insured. See Percy v. Safeguard Ins., Co., 460 So.2d at 727 (citing Jennings v. La. & S. Life Ins. Co., 280 So.2d at 300).
*503 With these basic rules in mind, this Court must consider whether a duty to defend appears evident after looking at the faces of the complaint in the underlying lawsuit and the Policy. See Alert Centre, 967 F.2d at 163. If this Court is able to find that Adams' complaint in the underlying lawsuit discloses even a possibility of a single covered claim, North River must defend all of the claims against Pro Sources in the underlying lawsuit even if some of those claims are clearly excluded from coverage. See Alert Centre, 967 F.2d at 163-64 (citing Montgomery Elevator Co. v. Building Engineering Servs. Co., Inc., 730 F.2d 377, 382 (5th Cir.1984)). Because whether Pro Sources has established the necessary requirements for coverage has not been raised as an issue in this dispute, this Court will assume that those requirements have been established and will focus on the existence of any applicable and unambiguous exclusion.
The salient issue here is whether Adams' defamation claim based upon Pro Sources' negligent publication of information to DAC is clearly excluded from coverage under the Policy by virtue of the Employment-Related Practices Exclusion. Adams' claims under federal and state anti-discrimination laws based on the hostile work environment he was allegedly subjected to while employed at Pro Sources,[4] including the retaliation claims, are clearly excluded under the Employment-Related Practices Exclusion by its plain and unambiguous language excluding claims based on harassment and discrimination. See Lawson v. Straus, 673 So.2d 223, 225-26 (La.Ct.App. 4th Cir.1996)(assuming without deciding that an insurance policy exclusion's reference to harassment and discrimination excluded claims brought under Title VII and citing with approval EEOC v. So. Publishing Co., 894 F.2d 785, 789 (5th Cir.1990)).
Louisiana courts have yet to squarely address whether a post-employment statement that is alleged to be defamatory would be excluded by an employment-related practices exclusion like the one in question here, although post-employment statements have been found to be in the "course of employment" under similar exclusion when made in the workman's compensation context. See 511 Bourbon Street Corp. v. First Financial Ins. Co., 701 So.2d 1088, 1090 (La.Ct.App. 4th Cir. 1997). Despite this paucity of binding precedent, several other courts have squarely addressed this issue under state insurance laws and rules of policy language construction that are very similar to those found in Louisiana.[5]
In Frank and Freedus v. Allstate Ins. Co, a California state appeals court determined that post-employment remarks made about an employee who was suing his former employer on wrongful termination, federal and state anti-discrimination, and state law defamation grounds were clearly "employment-related," and *504 thus excluded under the employment practices exclusion of a commercial general liability policy. 52 Cal.Rptr.2d at 685. Crucial to this determination was the court's finding that the term "employment-related," was not ambiguous even though it was not specifically defined by the policy. See id. (stating that "[t]he term is not technical....[i]t is used in its ordinary sense, i.e., related to employment.... [and] it modifies the specified acts (including defamation) [and its] clear meaning is coverage for ... employment-related defamation."). Because the allegedly defamatory statement was made in the context of the former employee's employment and directed toward his performance during employment, the California court found the defamation "clearly employment related." See id.
The Ninth Circuit distinguished the facts of Frank and Freedus in HS Servs., and concluded that when post-employment defamatory remarks were made about a former employee who became a competitor, the relationship between the remarks and the employment context were too "indirect and attenuated" to be excluded under an employment practices exclusion. See HS Servs., 109 F.3d at 646. Although the Ninth Circuit implicitly approved of the result in Frank and Freedus, it found statements regarding the reason the former employee now competitor was fired were not part of or directly and proximately related to that employee's firing because the cause of the remarks were in response to the employee's comments in the market-place regarding his former employer's financial condition. Id. at 647. The dissent took issue with this result, and stated that "the facts of this case are materially indistinguishable from Frank and Freedus, .... and would hold that the defamation arose out of an employment related act" because the statements were directed to other employees of the employer and but for the former employee's employment, the defamation would not have occurred. See HS Servs. at 648.
In Berman v. Gen. Accident Ins. Co. of Am., the New York Supreme Court of New York County mirrored the analysis of Frank and Freedus and determined that statements made about a former employee that assessed her performance and provided an explanation of why she was fired fell squarely within the employment-related practices exclusion for specified employment related practices such as evaluation and defamation. See Berman, 671 N.Y.S.2d at 623. Furthermore, the New York court refused to accept the argument that the exclusionary language in question should be read as limited to injuries sustained only while the employee is still employed by stating that such an argument is "semantically unreasonable and unacceptable." Id. (citing Loyola Marymount Univ. v. Hartford Accident & Indem. Co., 219 Cal.App.3d 1217, 271 Cal.Rptr. 528, 531 (Cal.Ct.App.1990)).
Considering a "Personnel Practices Exclusion" nearly identical to the Employment Practices Exclusion at issue in this case, the United States District Court for the Eastern District of Pennsylvania concluded that coverage for allegedly defamatory remarks that were specifically alleged to arise from an employee's unlawful and discriminatory termination of employment as well as unlawful discrimination was clearly and unambiguously excluded. See Weinstein Supply Corp., v. Home Ins. Cos., 1999 WL 310590, 1999 U.S. Dist. LEXIS 6661 T *10-11 (E.D.Pa.1999). The court found the fact that the remarks were made after the employee was terminated irrelevant because the complaint in the underlying lawsuit alleged that the defamatory remarks were made to cover up the "true invidiously discriminatory reasons for discharge," or alternatively, in retaliation against the employee for filing a *505 charge of discrimination against the employer. See id.
The above cases illustrate the following conclusions: (1) the phrase "employment-related practices" or "personnel practices" even though undefined in a commercial general liability policy is not per se ambiguous; (2) an alleged defamatory statement made after an employment relationship has ended can be excluded under an "employment-related practices exclusion"; (3) whether such a statement is excluded depends on whether the statement is made in the context of employment and describes a former employee's performance. In reaching these conclusions, the courts considered state insurance law, rules of construction, and policy language similar to that found in this case. Furthermore, the available decisions under Louisiana law that consider employment-related practices exclusions, even though under slightly different factual circumstances, suggest that a Louisiana court would come to the same conclusions. See Lawson, 673 So.2d at 226-27 (interpreting a "personnel practices" exclusion and concluding that such practices "refers to the usual dealing of employers with employees"); Security Indus. Ins. Co. v. CIGNA Property & Cas. Co., 1997 WL 403415, 1997 U.S. Dist. LEXIS 10544 at *5-*9 (E.D.La.1997)(reviewing various Louisiana state decisions and concluding that "any injury suffered by an employee in the course of her employment was meant to be excluded under a CGL [ commercial general liability policy]" and that the definition of "course of employment" is broadly interpreted).
Thus, after considering the above general conclusions, the facts of this case, and relevant Louisiana law, even under the most liberal construction of Adams' amended complaint, this Court cannot avoid coming to the conclusion that the alleged defamation was made in the context and course of Adams' employment. The alleged defamatory statement input into DAC, regardless of whether this statement is ultimately found to be defamatory or not, certainly described Adams' performance as an employee on his last day of employment. Moreover, Pro Sources admits that it was required by law to make a statement describing Adams' performance, entering data into DAC was its normal and existing practice in making the required statements regarding its employees' performances, and prospective employers review the content of DAC when making their hiring decisions. That Adams was no longer an employee or that he voluntarily terminated[6] his employment relationship with Pro Sources prior to this statement being input into DAC is irrelevant, as it is abundantly clear from the circumstances that this allegedly defamatory statement was made in the course of Adam's employment and part of the normal and existing employment practices of Pro Sources. Therefore, this Court finds that the Policy's "Employment-Related Practices Exclusion" unambiguously excludes *506 coverage for the claims raised by Adams in the underlying lawsuit.

B. Duty to Indemnify
Under West v. Bd. of Comm'rs of Port of New Orleans, this Court's determination that North River has no duty to defend Pro Sources in the underlying lawsuit necessarily requires this Court to conclude that North River has no duty to indemnify Pro Sources in the event that Pro Sources is found liable in the underlying lawsuit. See 591 So.2d 1358, 1360 (La.Ct.App. 4th Cir.1991).
Accordingly, the motion by North River for summary judgment (doc. 18) is hereby GRANTED. The cross-motion by Pro Sources for summary judgment (doc.28) is hereby DENIED.
NOTES
[1]  The law is clear that the scope of the Court's inquiry for determining whether a duty to defend exists under an insurance policy begins and ends with the language on the face of the complaint in the underlying lawsuit and the language of the insurance policy itself. See Oak Ridge Park, Inc. v. Scottsdale Ins. Co., 1999 WL 731417, 1999 U.S. Dist. LEXIS 14645 at *12 n. 6; Percy v. Safeguard Ins., Co., 460 So.2d 724, 727 (La.Ct.App.3d Cir.1984)(citing Jennings v. La. & S. Life Ins. Co., 280 So.2d 297, 300 (La.Ct.App. 1st Cir. 1973)); Yount v. Maisano, 627 So.2d 148, 153 (La.1993).
[2]  The specific statutes that Adams bases his hostile work environment claim upon are: (1) Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq.; (2) the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.; and (3) the Louisiana Employment Discrimination Act, La.Rev.Stat. 23:301, et seq.
[3]  Knowing publication of a defamatory statement is also excluded under the Policy. However, Adams' complaint alleges an alternate cause of action for defamation based on a negligence theory. In order to find that North River has a duty to defend, this Court only has to find that the complaint discloses a possibility of a covered claim. See Alert Centre, Inc. v. Alarm Protection Servs., Inc., 967 F.2d 161, 163 (5th Cir.1992) (citing Meloy v. Conoco, Inc., 504 So.2d 833, 838 (La.1987); Jensen v. Snellings, 841 F.2d 600, 612 (5th Cir.1988)). Thus, because the tort of defamation in Louisiana permits a cause of action to be brought when the publication of a defamatory statement was merely negligent rather than knowing, see Fitzgerald v. Tucker, 737 So.2d 706, 715-16 (internal citations omitted), the Policy's "knowing publication of a defamatory statement" exclusion is inapplicable.
[4]  See Adams' amended Complaint, paras. 4 & 5 (alleging a hostile work environment and that Adams' manager told Adams that "he [the manager] did not want to hire blacks....").
[5]  See e.g., Frank and Freedus v. Allstate Ins. Co., 45 Cal.App.4th 461, 52 Cal.Rptr.2d 678, 683-84 (Cal.Ct.App.1996) (stating that under California law, an insurance company's duty to defend is broader than the duty to indemnify, a duty to defend is triggered by the existence of potential liability based on facts pleaded on the face of a complaint, and that any ambiguity in the policy is construed against the insurer); HS Servs. v. Nationwide Mut. Ins. Co., 109 F.3d 642, 644-45 (9th Cir.1997)(same); Weinstein Supply Corp. v. Home Ins. Cos., 1000 WL 310590, 1999 U.S. Dist. LEXIS 6661 at *6-7 (E.D.Pa.1999)(stating same under Pennsylvania law); Berman v. Gen. Accident Ins. Co., 176 Misc.2d 13, 671 N.Y.S.2d 619, 623 (N.Y.Sup.Ct.1998)(stating same under New York law).
[6]  Pro Sources makes the unpersuasive argument that the Frank and Freedus, HS Servs., Weinstein Supply, and Berman cases are inapplicable because they all involved a claim for wrongful termination as well as defamation. See Pro Sources' Memorandum in Opposition to the Motion for Summary Judgment, pgs. 5-10. This Court does not believe that the phrase "termination" was a controlling issue in those cases, because any bodily injury arising from "termination" itself was expressly excluded by the policies in question. See Frank and Freedus at 683-84; Weinstein Supply at *9; Berman at 622. The relevant and guiding issue in those cases, which is applicable to this Court's analysis of the law in this case, was whether the exclusion for "employment-related practices" or "personnel practices" was ambiguous, and when could a postemployment statement that was alleged to be defamatory be excluded under such an exclusion.


382 So.2d 1220 (1980)
THE FLORIDA BAR, Complainant,
v.
Richard E. WELTY, Respondent.
No. 56769.
Supreme Court of Florida.
April 17, 1980.
*1221 John A. Weiss, Branch Staff Counsel, Tallahassee, for complainant.
Henry L. Gray, Jr. of Chandler, O'Neal, Gray, Lang & Haswell, Gainesville, for respondent.
PER CURIAM.
This is a disciplinary proceeding under article XI of the Integration Rule of the Florida Bar wherein Richard E. Welty was accused of using funds in his client account for his personal benefit. We have for review a report of the referee recommending that respondent Welty be found guilty of the violation of certain disciplinary rules and further recommending that he be suspended for a period of six months and thereafter until he shall prove his rehabilitation. The referee also recommended that he should thereafter be placed on probation for a period of two years.
The report of the referee contains the following findings of fact:
AS TO COUNT I
The Complaint of The Florida Bar has charged in Count I that the Respondent began a course of conduct in January of 1976 by which he disbursed money entrusted for specific purposes to himself as an attorney for purposes other than for which the money had been given to him, that he used trust funds to pay personal and business expenses without the knowledge and consent of his clients, that he became aware that he had created a deficit in his trust account by at least as early as May 1976, that subsequent to May 1976, Respondent continued to use his clients' trust funds for personal expenses and incurred deficits in his trust account as high as $24,848.11, that at all pertinent times he knew or should have known he was disbursing trust funds for purposes for which they had not been entrusted to him and by reason of the above, Respondent violated Rule 11.02(4) of the Integration Rule of The Florida Bar.
AS TO COUNT II
The Complaint of The Florida Bar has charged in Count II that the Respondent closed a real estate transaction in July 1978 receiving $15,000.00 in funds which he held in trust for a client which he failed to promptly disburse because he had used at least a portion of the trust money for personal expenses to make up deficits in his trust account, and by reason of the foregoing Respondent violated Disciplinary Rule 9-102(b)(4) [9-102(B)(4)] of the Code of Professional Responsibility and Rule 11.02(4) of the Integration Rule of The Florida Bar.
1. By his Answer, Respondent admitted the allegations of both counts of the Complaint, but alleging that he had a lack of knowledge of the specifics relating to his trust account until his bookkeeper advised him of the same in the summer of 1978, and alleging that he was without knowledge of the allegation that he was unable to disburse the trust funds obtained at the closing of July 1978 because he had used a portion of the money for personal expenses or to make up deficits in his trust account, and in mitigation, that he was out of his office for oral surgery 6 days in August 1978.
2. In his Answer, Respondent affirmatively admitted the chaotic state of his trust account, and that the same created disbursement difficulties. He affirmatively alleged that he has made all disbursements to his clients as required, has *1222 admitted his improprieties, and has continually and completely cooperated with The Bar. He states that he arranged to obtain a loan from his father for the purpose of balancing his trust account, and his trust account was completely balanced during the month of September, 1978. He alleged that he voluntarily submitted to an audit of the books and records of his trust account by the Grievance Department Auditor of The Florida Bar, and prays that discipline imposed be of such a nature as to permit him to continue the practice of law, and submits that an extended period of probation with periodic audits would be appropriate punishment under the circumstances.
3. The evidence discloses that the Respondent's trust account had shortages as follows:

  March 31, 1977        approximately      $19,700.00
  June 30, 1977               "            $24,800.00
  September 30, 1977          "            $19,500.00
  December 31, 1977           "            $18,600.00
  March 31, 1978              "            $11,600.00
  June 30, 1978               "            $21,400.00

On September 30, 1978, the account had a credit or positive balance of approximately $5,400.00. The evidence further discloses that dispite [sic] the intervention of The Florida Bar in the matter as early as September 1978 (Bar Exhibit # 7), there was again a shortage in the Respondent's trust account of approximately *1223 $1,040.00 on December 31, 1978, and a shortage in the account of approximately $830.00 on January 30, 1979.
While the Respondent cooperated with the Bar in making the audit investigation into this matter, and while he freely admitted the shortages existed, he denied any specific knowledge of the magnitude of the shortages, and seemed to the Referee to lack a grasp of the severity of his shortcomings. He freely admitted taking out a personal loan to cover shortages in 1977, and again in 1978, and asking his wealthy father to advance him money to balance his account.
Few breaches of ethics are as serious as the use of a client's fund for the lawyer's private purposes. The lawyer should guard his clients' funds with much greater diligence and caution than his own. State ex rel. The Florida Bar v. Ruskin, 126 So.2d 142 (Fla. 1961), where the Court, despite Ruskin's restitution, suspended him for six months and thereafter until he proved rehabilitation.
The referee cites The Florida Bar v. Pahules, 233 So.2d 130 (Fla. 1970). In the Pahules case the attorney made full restitution, admitted his misconduct, and evidenced an attitude of repentance and of rehabilitation. Pahules, in practice for nineteen years without discipline, had four minor children to support. The Court suspended him for six months with proof of rehabilitation required before reinstatement.
In State ex rel. The Florida Bar v. Fordham, 143 So.2d 457 (Fla. 1962), the respondent made restitution of funds and there was evidence of prior good character. The Court held that he should be suspended for six months and thereafter until he had proved rehabilitation.
Respondent Welty admits improper handling of his trust account during the period from January 1976 through September 1978, but contends that he did not discover that the state of his trust account was chaotic until November 1977. The full extent of his problem was discovered in June 1978. In mid-1977 he borrowed $45,000.00 at the time he bought his office building and $11,000.00 of that money was applied to cover deficits in his trust account. After his accounts were audited by The Florida Bar, respondent balanced his accounts and began maintaining his balance in accordance with the Integration Rule and the Disciplinary Rule. The referee's findings contain the following:
On September 30, 1978, the account had a credit or positive balance of approximately $5,400.00. The evidence further discloses that dispite [sic] the intervention of The Florida Bar in the matter as early as September 1978 (Bar Exhibit # 7), there was again a shortage in the Respondent's trust account of approximately $1,040.00 on December 31, 1978, and a shortage in the account of approximately $830.00 on January 30, 1979.
This finding was in error, as The Florida Bar and respondent had stipulated that all shortages after September 30, 1978, were due solely to posting errors and delay in transit and were not intended to reflect unfavorably upon respondent Welty's handling of his trust account. The trust account was completely balanced in September of 1978, and at the time of the institution of the grievance procedures all shortages had been corrected by the respondent.
Respondent refers us to The Florida Bar v. Austin, 259 So.2d 142 (Fla. 1972), where an attorney failed to transmit to his client the proceeds of a settlement. The proceeds were not transmitted until disciplinary proceedings had been instituted. The Court approved a public reprimand.
Respondent also cites The Florida Bar v. Pink, 236 So.2d 97 (Fla. 1970), where a public reprimand was given to the attorney for failure to properly account for trust funds and failure to disburse them according to his client's direction. There was no embezzlement or misappropriation in this case.
Respondent also refers us to The Florida Bar v. Reese, 247 So.2d 718 (Fla. 1971). The respondent was found guilty of withholding funds, placing them in an account of his own, and commingling those funds. He personally applied those funds to the payment of a personal obligation, making unauthorized use of the funds for his own personal benefit. He repaid the funds prior to the institution of the proceedings. He received a public reprimand. Thereafter the attorney was before this Court in The Florida Bar v. Reese, 263 So.2d 794 (Fla. 1972). In November of 1969 Reese received $1,200.00 from Henry Hughes, which was to be retained by him in trust as a down payment on a home. Reese did not retain the money in trust, but, to the contrary, put it in his own name and converted it to his own use. Repeated demands were made for the consummation of the real estate closing and for an accounting of the monies. He refused to complete the transaction and refused to account for the money in his possession until April of 1970. In August 1971 he made restitution. This Court concluded that a public reprimand was adequate discipline.
In The Florida Bar v. Novak, 313 So.2d 727 (Fla. 1974), the attorney prepared a will for an elderly woman confined to a nursing home wherein the attorney was named as the sole beneficiary. He also obtained a loan from her of $24,000. The elderly woman changed her mind, another lawyer came in, a bank was appointed guardian of her property, and she changed her will. The attorney readily admitted his errors and made full reimbursement and restitution. This Court approved a public reprimand.
The Florida Bar v. Terry, 333 So.2d 24 (Fla. 1976), involved a situation where an attorney was appointed guardian of his physically incapacitated and aged aunt by a court order. After his appointment he discovered $19,700.00 in a safety deposit box which he alleged that his aunt gave him on a later joint visit to the bank. The existence of the money and the disbursement thereof went undisclosed until a potential heir of the aunt intervened through counsel. No court order was made or sought authorizing the disbursement of the money. The Court found that the ward was mentally incapable of making a gift, ordered the sum returned to the estate and discharged the guardian for failure to discharge his duties and mismanagement of his ward's property. This Court imposed a public reprimand and a continuing probationary period for three years.
Public reprimand should be reserved for such instances as isolated instances of neglect, The Florida Bar v. Larkin, 370 So.2d 371 (Fla. 1979); or technical violations of trust accounting rules without willful intent, The Florida Bar v. Horner, 356 So.2d 292 (Fla. 1978); or lapses of judgment, The Florida Bar v. Welch, 369 So.2d 343 (Fla. 1979). A public reprimand should never be considered sufficient discipline in instances such as this, involving deficits in a trust account extending over two years and *1224 amounting at times to over $24,000.00. The recommendations of the referee are approved and the respondent, Richard E. Welty, is suspended from The Florida Bar for a period of six months, effective May 19, 1980, and thereafter until he shall prove his rehabilitation as provided in Rule 11.10(3), and thereafter he shall be placed on probation for a period of two years. The cost incurred by The Florida Bar in the amount of $781.82 shall be paid by respondent Welty prior to the expiration of his suspension.
It is so ordered.
ADKINS, Acting C.J., and BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.


898 F.Supp. 271 (1995)
Barry WEINSTEIN, Plaintiff,
v.
TOWNSHIP OF FRANKLIN, NEW JERSEY, et al., Defendants.
Civ. A. Nos. 95-1446(MLP), 95-2965.
United States District Court, D. New Jersey.
September 15, 1995.
*272 Barry Weinstein, Edison, New Jersey, pro se.
Steven J. Zweig, Deputy Attorney General, Trenton, New Jersey, for defendant Deborah T. Poritz, Attorney General.
Arlene M. Turinchak, McGimpsey & Cafferty, Somerset, New Jersey, for defendants Franklin Township and Mark Lewis.
Thomas S. Smith, First Assistant Public Defender, Trenton, New Jersey, for defendants Brenda Smith and Robert Gaynor.

OPINION
PARELL, District Judge.
This matter comes before the Court on motion of plaintiff for the issuance of a "temporary injunction," and on separate motions of defendants Brenda Smith and Robert Gaynor, and defendant Deborah T. Poritz for dismissal under Fed.R.Civ.P. 12(b)(6). Objections have been filed by the parties opposing the motions. For the reasons stated, the motion of defendants to dismiss is granted and the motion of plaintiff for injunctive relief is denied.

FACTUAL BACKGROUND
Plaintiff and his wife were divorced in 1992 when their only child David was four years of age. The Dual Judgment of Divorce provided for joint custody of David conditioned upon plaintiff's submission of the results of certain drug and alcohol tests. (Pl.'s Ex. 2, ¶¶ p, q, r, s.)[1] Plaintiff never submitted the required reports, thus giving the former Mrs. Weinstein sole custody of David. (Pl.'s Exs. 4 & 5: Court Orders of the Court of Common Pleas of Northampton County, Pennsylvania, dated July 9, 1993 and December 9, 1993, No. 1993-C-5117.)
On April 30, 1994, at approximately 11:40 A.M., it appears that David Weinstein, age six, was playing outside his Franklin Township, New Jersey, home. Without prior permission or notification, plaintiff picked up David and took him to upstate New York. (Pl.'s Ex. 3: Somerset County Grand Jury Transcript of June 24, 1994.) The police were notified and, following a call from plaintiff as to his whereabouts, David was returned to New Jersey. Plaintiff was arrested and charged with violation of N.J.Stat. Ann. 2C:13-4, which makes it a criminal offense to interfere with child custody orders.[2]

*273 PROCEDURAL BACKGROUND

This matter was opened to the Court on March 29, 1995, by means of an unverified Complaint of plaintiff Barry Weinstein seeking a temporary restraining order and for an order to show cause why a preliminary injunction should not issue against defendants Franklin Township, Somerset County, Detective Lewis and other unnamed John Does. (Complaint filed March 27, 1995.) The Court found the application deficient and denied plaintiff's request without prejudice. (Order filed March 27, 1995.) On April 6, 1995, plaintiff filed a deficient "reapplication for an Order to Show Cause." (See Papers submitted April 6, 1995.) Subsequently, on May 11, 1995, plaintiff filed an amended Complaint seeking declaratory and injunctive relief and naming as additional defendants New Jersey Attorney General Deborah Poritz, Somerset County Prosecutor Nicholas Bissel, and Craig Bartow. (Amended Complaint filed May 11, 1995.) On June 15, 1995, plaintiff filed an additional set of papers also seeking a temporary injunction against defendants. (See Brief filed June 15, 1995.) In each of his submissions, plaintiff appears to be challenging his ongoing prosecution under N.J.Stat.Ann. 2C:13-4 (1994), a statute that criminalizes conduct of any person, including a parent, who detains a minor child with the purpose of concealing the child and thus depriving the child's other parent from lawful custody or visitation. Plaintiff appears to challenge the constitutionality of this statute and thereby seek to halt his pending prosecution.
On June 21, 1995, plaintiff filed a separate lawsuit under 42 U.S.C. § 1983, docketed as Weinstein v. Smith, et al., No. 95-2965(MLP).[3] There, plaintiff alleged that, inter alia, two members of the Somerset Regional Office of the New Jersey Office of the Public Defender, Brenda Smith and Robert Gaynor, deprived plaintiff of his constitutional rights. Plaintiff alleged that Smith and Gaynor conspired with the judiciary in permitting any charges that plaintiff interfered with child custody to go forward. Due to the fact that the new lawsuit was intimately connected to the prior lawsuit, this Court consolidated the two cases. (Order of July 25, 1995.)
On July 11, 1995, defendant Deborah Poritz filed a motion to dismiss the Complaint on the basis that: (1) the Attorney General is not involved in the plaintiff's prosecution under N.J.Stat.Ann. 2C:13-4; (2) the Complaint lacks specificity as to defendant Poritz; (3) adjudicating the Complaint would impermissibly involve the federal court in the exclusively state matter of domestic relations; and (4) the Complaint is barred by the Eleventh Amendment.
On July 17, 1995, defendants Smith and Gaynor moved to dismiss the Complaint on the basis that the activities of the defendants *274 are not "under color of law" for purposes of section 1983, and that plaintiff has failed to allege sufficient facts to state a claim for conspiracy. On August 8, 1995, defendant Franklin Township filed opposition to plaintiff's request for preliminary injunctive relief.

DISCUSSION

A. Plaintiff's Request for Injunctive Relief
Plaintiff has asked for a "temporary injunction ... preventing the named defendants from any further prosecution, any further unconstitutional actions, causing irreparable injury to the plaintiff and his son." (Pl.'s Br.) Plaintiff further contends that "N.J.Stat.Ann. 2C:13-4 is unconstitutional on its face since custody is awarded in over 95% [sic] to women/mothers; as is common knowledge, as per this courts [sic] mandatory obligation to recognize under judicial notice 201(d)." (Pl.'s Amended Compl. at 37.) Plaintiff does not appear to seek damages but declaratory and injunctive relief only.
The grant of injunctive relief is an "extraordinary remedy, which should be granted only in limited circumstances." Frank's GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir.1988) (citing United States v. City of Philadelphia, 644 F.2d 187, 191 n. 1 (3d Cir.1980)). In ruling on a motion for a preliminary injunction, this Court must consider (1) the likelihood that the moving party will prevail on the merits at final hearing; (2) the extent to which the moving party will suffer irreparable injury in the absence of relief; (3) the extent to which the nonmoving party will suffer irreparable injury if the preliminary injunction is issued; and (4) the public interest. See Opticians Ass'n v. Independent Opticians, 920 F.2d 187, 191-92 (3d Cir.1990).
In order to win injunctive relief, plaintiff must demonstrate the likelihood of success on the merits of his claim. Insofar as plaintiff seeks to enjoin his ongoing criminal proceeding, plaintiff cannot demonstrate a likelihood of success. Under Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971), a federal court will not enjoin proceedings in a state court unless "the threat to the plaintiff's federally protected rights [is] one that cannot be eliminated by his defense against a single criminal prosecution." Id. Plaintiff has failed to show that his challenge to the constitutionality of the statute cannot be conducted in state court. Moreover, it is now well established doctrine that "federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them." Harrison v. N.A.A.C.P., 360 U.S. 167, 176, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152 (1959).
To the extent that plaintiff is not seeking immediate cessation of his criminal prosecution, but protection from a future prosecution, see Wooley v. Maynard, 430 U.S. 705, 710-12, 97 S.Ct. 1428, 1433-34, 51 L.Ed.2d 752 (1977) (Younger does not bar federal jurisdiction where plaintiffs are seeking prospective relief in the form of an injunction against prosecutions for future violations of state law), plaintiff must show that "the circumstances are exceptional and the danger of irreparable loss is both great and immediate." Monteleone v. Furman, 192 F.Supp. 830, 832 (D.N.J.1961) (citations and internal quotation marks omitted). The Court finds that plaintiff has not made such a showing.[4] Plaintiff appears to seek an injunction against state officials that would allow plaintiff to re-acquire custody of his son and thus overturn a valid custody order. Even if this Court were so inclined to issue an extraordinary injunction, such an order would violate a century-old prohibition against federal court intervention in child custody suits. In re Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 853, 34 L.Ed. 500 (1890) ("As to the right to the control and possession of this child, as it is contested by its father ... it is one in regard to which neither the Congress of the United States nor any authority of the United States has any special jurisdiction.... The whole subject of *275 the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States."); Ankenbrandt v. Richards, 504 U.S. 689, 704, 112 S.Ct. 2206, 2215, 119 L.Ed.2d 468 (1992) ("[S]tate courts are more eminently suited to work of this type than are federal courts, which lack the close association with state and local government organizations dedicated to handling issues that arise out of conflicts over divorce, alimony, and child custody decrees. Moreover, as a matter of judicial expertise, it makes far more sense to retain the rule that federal courts lack power to issue these types of decrees because of the special proficiency developed by state tribunals over the past century and a half in handling issues that arise in the granting of such decrees.")
In addition, to demonstrate a likelihood of success on the merits, plaintiff must demonstrate a likelihood that he can prove that the statute in question is unconstitutional. This is a significant burden because it is well settled that a duly enacted statute is presumed to be constitutional. McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408-10, 22 L.Ed.2d 739 (1969); Eaton v. Jarvis Prods. Corp., 965 F.2d 922 (10th Cir.1992). Plaintiff's arguments that the statute is facially unconstitutional are unpersuasive. For example, plaintiff argues that, because more mothers than fathers are granted custody (an assertion for which plaintiff provides no factual basis), the statute that prohibits the noncustodial parent from interfering with the rights of the custodial parent illegally discriminates on the basis of gender. Such a contention, even if true, can be made in state court.[5]
Therefore, after reviewing the parties' submissions, the Court does not find that plaintiff has satisfied the requirements for the issuance of a preliminary injunction.

B. Motions to Dismiss

1. Defendants Smith and Gaynor
Defendants Smith and Gaynor of the Public Defender's Office contend that their official actions taken in connection with the representation of plaintiff were not under color of state law for purposes of liability under 42 U.S.C. § 1983. The Court agrees with this contention. Under Black v. Bayer, 672 F.2d 309, 314, (3d Cir.), cert. denied, 459 U.S. 916, 103 S.Ct. 230, 74 L.Ed.2d 182 (1982), the Court of Appeals for the Third Circuit held that public defenders acting in their official capacities are absolutely immune from civil liability under section 1983. Id. at 320.
In addition, plaintiff has failed to adequately set forth the elements necessary to state a claim for conspiracy. See United Bhd. of Carpenters v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983). Plaintiff has not alleged any overt acts that might constitute a conspiracy. Therefore, plaintiff's conspiracy claim is dismissed under Fed.R.Civ.P. 12(b)(6).[6]

2. Defendant Poritz
Plaintiff's submissions make it unclear what relief plaintiff seeks from Defendant Poritz. Poritz is not connected to plaintiff's prosecution nor has defendant sought to intervene in plaintiffs apparent constitutional challenge of the statute. See New Jersey Court R. 4:28-4(d). Therefore, defendant's *276 motion to dismiss shall be granted. An appropriate Order accompanies this Opinion.

ORDER
This matter having come before the Court by motion of plaintiff for injunctive relief and by defendants Brenda Smith, Robert Gaynor and Deborah T. Poritz for dismissal; and the Court having reviewed the submissions of the parties; and good cause appearing;
IT IS on this 14th day of Sept., 1995, ORDERED that the motion of plaintiff for a preliminary injunction be and is DENIED;
IT IS FURTHER ORDERED that the motions of defendants Poritz, Gaynor, and Smith to dismiss under Fed.R.Civ.P. 12(b)(6) be and are hereby GRANTED.
NOTES
[1]  The Dual Judgment of Divorce appears to be currently on appeal.
[2]  Section 2C:13-4, Interference with custody, provides in pertinent part:

A person, including a parent, guardian or other lawful custodian, is guilty of interference with custody if he: (1) Takes or detains a minor child with the purpose of concealing the minor child and thereby depriving the child's other parent of custody or visitation of the minor child ... or (4) After the issuance of a temporary or final order specifying custody, visitation or joint custody rights, takes, detains, entices or conceals a minor child from the other parent in violation of the custody or visitation order. Interference with custody is a crime of the third degree.... It is an affirmative defense to a prosecution under subsection a. of this section, which must be proved by clear and convincing evidence, that: (1) The actor reasonably believed that the action was necessary to preserve the child from imminent danger to his welfare. However, no defense shall be available pursuant to this subsection if the actor does not, as soon as reasonably practicable but in no event more than 24 hours after taking a child under his protection, give notice of the child's location to the police department of the municipality where the child resided, the office of the county prosecutor in the county where the child resided, or the Division of Youth and Family Services in the Department of Human Services; (2) The actor reasonably believed that the taking or detaining of the minor child was consented to by the other parent, or by an authorized State agency; or (3) The child, being at the time of the taking or concealment not less than 14 years old, was taken away at his own volition and without purpose to commit a criminal offense with or against the child.... f. (1) In addition to any other disposition provided by law, a person convicted under subsection a. of this section shall make restitution of all reasonable expenses and costs, including reasonable counsel fees, incurred by the other parent in securing the child's return. (2) In imposing sentence under subsection a. of this section the court shall consider, in addition to the factors enumerated in chapter 44 of Title 2C of the New Jersey Statutes: (a) Whether the person returned the child voluntarily; and (b) The length of time the child was concealed or detained.
N.J.Stat.Ann. 2C:13-4.
[3]  It appears that the present Complaint is the latest in a series of lawsuits that plaintiff has filed in the United States District Court for the District of New Jersey seeking essentially the same relief involving the custody of his son David. On April 7, 1993, plaintiff filed an application for an Order to Show Cause to restrain several New Jersey State judges from enforcing the divorce decree. (Weinstein v. New Jersey, et al., No. 93-1603(GEB)). The Honorable Judge Brown dismissed the Complaint for failure to state a claim. (Order filed April 16, 1993.) On July 6, 1993, plaintiff filed a Complaint against his former wife and several other defendants. (Weinstein v. Weinstein, et al., No. 93-2924(HLS)). The Honorable H. Lee Sarokin dismissed the Complaint for lack of jurisdiction. (Order of April 11, 1994.) On January 24, 1994, plaintiff filed another lawsuit making similar allegations. (Weinstein v. Hogan, et al., No. 94-0394(DRD)). The Honorable Dickinson R. Debovoise dismissed the Complaint. (Order filed January 27, 1994.)

It also appears from the papers submitted that plaintiff has filed similar actions in state court. (See Ex. 7 to Pl.'s Br., referencing state court denials of emergent relief by Judge John D'Amico, J.S.C., on July 27, 1993 and by Judge Clarkson S. Fisher, Jr., J.S.C. on September 13, 1994.)
[4]  Plaintiff fails to make this showing because he has an adequate opportunity to challenge both his prosecution and the original custody order in state court. Moreover, it appears that any "loss" plaintiff suffers in connection with the loss of custody of his son is due to plaintiff's own apparent failure to abide by the provisions of the Dual Judgment for Divorce.
[5]  The logic of this argument suggests that any law that disproportionately affects one gender more than the other, for whatever reason, constitutes illegal discrimination. The Court is unaware of any statute (such as Title VII) that provides such protection. Nor is the Court aware of any statute that prohibits adverse impact discrimination in the context of a criminal offense statute.
[6]  A motion to dismiss a complaint under Fed. R.Civ.P. 12(b)(6) will be granted when, taking the allegations in the complaint and all reasonable inferences therefrom as true, the plaintiff can prove no set of facts that would entitle him to relief. See Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir.1986). The evaluation of a pro se litigant's complaint, however, is less exacting than that of complaints submitted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). In order for a court to order the dismissal of a pro se litigant's complaint, the court must find "beyond a doubt that plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Id. at 520-21, 92 S.Ct. at 596.


532 F.Supp. 51 (1982)
SAN JUAN RACING ASSOCIATION, INC., d/b/a El Nuevo Comandante, Plaintiff,
v.
LABOR RELATIONS BOARD OF PUERTO RICO in representation of Union De Empleados Del Hipodromo El Comandante, Defendant.
Civ. No. 81-1097(PG).
United States District Court, D. Puerto Rico.
January 27, 1982.
*52 Luis F. Antonetti, Goldman, Antonetti & Davila, San Juan, P. R., for plaintiff.
Juan Antonio Navarro, San Juan, P. R., for defendant.

OPINION AND ORDER
PEREZ-GIMENEZ, District Judge.
The San Juan Racing Association, Inc., doing business as El Nuevo Comandante, filed on June 16, 1981, a Petition for Removal in this case, pursuant to Section 301 of the National Labor Relations Act (29 U.S.C. § 185) in a suit for alleged violations of a collective bargaining contract between plaintiff and plaintiff's employees, Unión de Empleados del Hipódromo El Comandante. On June 25, 1981, the Puerto Rico Labor Relations Board filed a Motion to Remand alleging that this case is not removable to this Court in view of the fact that the National Labor Relations Board (hereinafter "the Board"), through its Rules and Regulations, Section 103.3, 29 C.F.R. 103.3, has especifically declined not to assert its jurisdiction in any proceeding under Sections 8, 9 and 10 of the National Relations Board Act (hereinafter "the Act") concerning the horseracing and the dogracing industries.[1]
*53 Petitioner, on the other hand, contends that the fact that the Board has not deemed it appropriate to assert its jurisdiction over the horseracing industry under Sections 8, 9 and 10 of the Act, does not preclude or prevent the Court from asserting its jurisdiction in suits for violations of contracts between petitioner and the Union. According to petitioner, the Court has an independent and exclusive jurisdiction under 29 U.S.C. § 185(a) to entertain this suit "for alleged violations of contracts between an employer and a labor organization in an industry affecting commerce.".[2]
Thus, the issue in this case is whether or not this Court has jurisdiction to entertain the present action under the provisions of Section 301 of the Act (28 U.S.C. § 185) in an industry where the National Relations Board has not asserted its jurisdiction in proceeding under Sections 8, 9 and 10 of the Act.
It is well established that Congress, in passing the National Labor Relations Act, intended to give the Board the fullest permissible jurisdiction under the Commerce Clause of the Constitution. N.L.R.B. v. Reliance Fuel Corp., 371 U.S. 224, 83 S.Ct. 312, 9 L.Ed.2d 279 (1963); Polish National Alliance v. N.L.R.B., 322 U.S. 643, 64 S.Ct. 1196, 88 L.Ed. 1509 (1944); N.L.R.B. v. Wentworth Institute, 515 F.2d 550 (1 Cir. 1975). This statutory jurisdiction of the Board extends to all representation questions and unfair labor practices "affecting commerce". 29 U.S.C. §§ 159(c)(1), 160(a).
Because of several factors, including limited resources and manpower, the Board, for the first fifteen years of its existence, has determined on a case by case method whether or not to assume jurisdiction in a particular case. This practice was replaced in 1950 with a series of standards to determine whether the Board would assume jurisdiction in a specific type of industry. These standards, determined by the Board in a series of 1950 decisions were essentially dollar volume standards. In 1959, Congress recognized the Board's practice of limiting its caseloads by not asserting its jurisdictional authority to its limit in certain cases by the enactment of Section 14(c)(1) of the Act. 29 U.S.C. § 164(c)(1). Said statute provides that the Board, in its discretion, may, by rule of decision or by published rules, decline to assert jurisdiction over any labor dispute, where in the opinion of the Board, the effect of such labor dispute on interstate commerce is not sufficiently substantial to warrant the exercise of its jurisdiction. Furthermore, the Act also provides in Section 164(c)(2) that in the event that the Board declines jurisdiction, said statute authorizes states and territories to assert jurisdiction in those cases. Glen Manor Home for Jewish Aged v. N.L.R.B., 474 F.2d 1145 (6 Cir., 1973); N.L.R.B. v. National Survey Service, Inc., 361 F.2d 199 (7 Cir., 1966).
Therefore, it is clear that the Board has the broadest jurisdictional authority possible under the Constitution, and that it may, but need not, decline jurisdiction in certain cases in exercise of its discretion. Thus, the extent to which the Board chooses to exercise its statutory jurisdiction is a matter of administrative policy within the Board's sound discretion. In the absence of extraordinary circumstances, or abuses of that discretion, such a discriminatory exercise of jurisdictional discretion by the Board is not subject to review by the Federal courts. N.L.R.B. v. Carroll-Naslund Disposal, Inc., 359 F.2d 779, 780 (9 Cir., 1966); N.L.R.B. v. Welcome-American Fertilizer Co., 443 F.2d 19 (9 Cir., 1971); Glen Manor Home for Jewish Aged v. N.L.R.B., *54 supra; N.L.R.B. v. Harrah's Club, 362 F.2d 425 (9 Cir., 1966).
In cases involving the horseracing industry the Board has consistently declined to exercise jurisdiction under Sections 8, 9 and 10 of the Act over the racetracks industry, as well as over labor disputes involving employers whose operations are an integral part of the said industry. American Totalisator Co., 101 L.R.R.M. 1403 (1979); Los Angeles Turf Club, Inc., 26 L.R.R.M. 1154 (1950); Jefferson Downs, Inc., 45 L.R.R.M. 1108 (1959); Meadow Stub, Inc., 47 N.L. R.B. 1202 (1961); Hialeah Race Course, Inc., 45 L.R.R.M. 1106 (1959); Walter A. Kelley, 51 L.R.R.M. 1375 (1962); Centennial Turf Club, Inc., 77 L.R.R.M. 1894 (1971); Yonkers Raceway, Inc., 79 L.R.R.M. 1697 (1972), and others.
Furthermore, the Board has recently reiterated its position in a formal ruling, Jurisdictional Standards, 28 C.F.R. 1, Part 103, Subpart A, 82 L.R.R.M. 1737 (1973). It has done so pursuant to the authority vested in the Board under the previously mentioned Section 14(c)(1). The Board's rationale in exempting racetracks from the Board's regulation has been that:
"It appears that State law sets racing dates of the tracks; State law determines the percentage share of gross wages to be retained by the track. In addition, the State licenses employees, exercises close supervision over the industries through State racing commissions, and in many States retains the right to effect the discharge of employees whose conduct jeopardizes the `integrity' of the industry.[3] As the industries constitute a substantial source of revenue of the States, a unique and special relationship has developed between the States and these industries which is reflected by the States continuing interest in and supervision over the industries." N.L.R.B. Jurisdictional Standard, supra, at 1737.
The Board has not asserted jurisdiction over the horse-racing industry considering that said industry constitutes an important source of revenue for the States, thus resulting in detailed state regulations over the industry. N.L.R.B.  Jurisdictional Standards, 28 C.F.R. 1, Part 103, Subpart A, supra. Therefore, it is the Board's opinion that a unique and close relationship has developed between the states and this industry so that the operation of horseracing is essentially local in character and that a labor dispute there is not likely to disrupt interstate commerce. As stated by the Board in Walter A. Kelley, supra, at 1377: "Unless the hands of State authorities are tied, no labor dispute in this industry is likely to be permitted to last sufficiently long to interfere seriously with interstate commerce.". In view of the above, it is the Board's view that the regulations of labor matters governing the racing industry should be left to the State since the employees involved are already subject to detailed State regulations, and also, considering that Congress has provided under Section 14(c)(2) of the Act that the States could assume jurisdiction if the Board declines to do so over the horseracing industry.[4]
In all these factors, the Board has recognized that the operations of the racing industry are likely to exercise some impact upon interstate commerce, but still, the Board's opinion is that the impact is not so substantial so as to warrant the assertion of jurisdiction over the horseracing industry. Moreover, it is the Board's conception, in view of the oppressive caseload of the N.L. R.B. that the Board's limited resources can be better devoted to industries and operations where labor disputes are likely to have a more substantial impact over interstate commerce than labor disputes in the racing industry. Walter A. Kelley, supra; Independent *55 Assoc. of Pari-Mutual Employees of the State of Florida v. Gulf Stream Park Racing Assoc., Inc., 407 F.Supp. 855 (S.D. Fla., 1976). Therefore, the Board found that it would not effectively effectuate the provisions of the Act to assert jurisdiction over the horseracing industry.
This Court concludes that Congress primarily committed to the N.L.R.B. the delicate and difficult responsibility to effectuate N.L.R.B. policies subject to limited judicial review. N. L. R. B. v. Truck Drivers, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676 (1951); Beth Israel Hospital v. N. L. R. B., 437 U.S. 483, 501, 98 S.Ct. 2463, 2473, 57 L.Ed.2d 370 (1978); N. L. R. B. v. Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963). The Board, through its cumulative experience in dealing with labor management relations in a variety of industrial and non-industrial backgrounds, has developed the expertise to determine whether the asserting of jurisdiction over the racing industry would further the objectives of the Act. Thus, we are obliged to consider those same factors which led to the Board's conclusion that the racing industry does not have such a substantial effect on interstate commerce so as to warrant the exercise of its jurisdiction over it. The Court finds it best to defer to the expertise of the Board when it concluded that horseracing is an industry essentially of local concern, that the industry is subject to extensive State regulations, and furthermore, that State courts are empowered with jurisdiction over labor disputes arising within it. 29 U.S.C. § 164(c)(2); Ind. Ass'n. of Pari-Mut. Emp. v. Gulfstream Park Racing Assoc., Inc., supra.
Finally, it may be added that the Board's decision not to assert its jurisdiction over the horseracing industry is not irrevocable. The limitations on the exercise of jurisdiction of the Board is self-imposed and it can exercise jurisdiction pursuant to the statute under any reasonable set of circumstances it deems appropriate. International Union Progressive Mine Workers v. N. L. R. B., 319 F.2d 428, 435 (7 Cir., 1963); N. L. R. B. v. Okla-Inn, 488 F.2d 498 (10 Cir., 1973).
Thus, if the Board's expectations are not realized, the Board can reappraise its policy in this area taking into consideration the new developments in society and assert jurisdiction over the horseracing industry as long as its new construction is consistent with the Act. N. L. R. B. v. Harrah's Club, supra; Walter A. Kelley, supra; N. L. R. B. v. Wentworth Institute, supra.
WHEREFORE, in view of the foregoing, plaintiff's Petition for Removal is hereby DENIED, and the case is hereby REMANDED to the Puerto Rico Labor Relations Board.
IT IS SO ORDERED.
NOTES
[1]  The National Labor Relations Board's Rules and Regulations, Section 103.3 (29 C.F.R. 103.3) provides that "The Board will not assert its jurisdiction in any proceedings under sections 8, 9 and 10 of the Act involving the horseracing and dogracing industries.".
[2]  Petitioner based this contention in that the San Juan Racing Association, Inc., d/b/a El Nuevo Comandante, is an employer in industry affecting interstate commerce in that the shares of the corporate stock of petitioner are registered, listed and traded in the New York Stock Exchange, and all transactions involving those shares must be carried out and recorded also by the New York Stock Exchange. Furthermore, all material used in its betting system is bought directly by petitioner and shipped to Puerto Rico from Mainland United States of America. The average yearly cost of this betting material and also the office material purchased by and used in the betting system is in excess of $690,000.00. The purchase of equipment directly from Continental United States is in excess of $790,000.00.
[3]  In the Commonwealth of Puerto Rico, the Puerto Racing Act, 15 L.P.R.A. § 181, et seq., provides for an extensive regulation of all matters concerning the racing sport that includes all the factors considered by the N.L.R.B. in declining to assert jurisdiction over the racing industry.
[4]  Pursuant to the abovementioned provision, all labor disputes in the horseracing industry in Puerto Rico have been handled and resolved by the Puerto Rico Labor Relations Board.


                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 27 2014

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U.S. COURT OF APPEALS

                              FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 13-10106

                Plaintiff - Appellee,            D.C. No. 4:12-cr-01633-RCC

  v.
                                                 MEMORANDUM*
FRANCISCO JAVIER VALENZUELA-
RAMIREZ,

                Defendant - Appellant.

                     Appeal from the United States District Court
                              for the District of Arizona
                   Timothy M. Burgess, District Judge, Presiding**

                              Submitted June 25, 2014***

Before:         HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.

       Francisco Javier Valenzuela-Ramirez appeals from the district court’s

judgment and challenges the 50-month sentence imposed following his guilty-plea

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
              The Honorable Timothy M. Burgess, United States District Judge for
the District of Alaska, sitting by designation.
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
conviction for reentry after deportation, in violation of 8 U.S.C. § 1326. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Valenzuela-Ramirez contends that the government refused to move for a

third-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b) on

the improper basis that he would not waive his appellate rights. A defendant who

challenges the government’s refusal to move for a third point for acceptance of

responsibility must show that the government’s refusal was based on an

unconstitutional motive or was arbitrary. See United States v. Espinoza-Cano, 456

F.3d 1126, 1136 (9th Cir. 2006).

      The sole reason the government proffered in the district court for its refusal

to move for the third point was the “relatively substantial work” it had done in

preparation for trial. The government “is in the best position to (1) know what it

has and has not done in relation to trial preparation, and (2) assess whether the

defendant’s notification of an intent to plead guilty has assisted the government in

avoiding trial preparation.” Id. There is nothing in the record to support

Valenzuela-Ramirez’s suggestion that the government misrepresented its trial

preparation efforts or that it had a different motivation for declining to file the

motion for the third point than the one it offered. We, therefore, affirm.

      AFFIRMED.

                                            2                                     13-10106


Matter of Brown v Brown (2015 NY Slip Op 03525)

Matter of Brown v Brown

2015 NY Slip Op 03525

Decided on April 29, 2015

Appellate Division, Second 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 on April 29, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
JOHN M. LEVENTHAL
LEONARD B. AUSTIN
HECTOR D. LASALLE, JJ.

2013-10168
2015-01848
 (Docket Nos. V-25793-09, V-27261-09)

[*1]In the Matter of Bonita Brown, appellant,
vJorelle Brown, respondent. (Proceeding No. 1)
In the Matter of Jorelle Brown, respondent,
vBonita Brown, appellant. (Proceeding No. 2)

Christopher J. Robles, Brooklyn, N.Y., for appellant.
Tiffany Moseley, Hauppauge, N.Y., for respondent.
Eric Perlmutter, Jamaica, N.Y., attorney for the child

Appeals from two orders of the Family Court, Queens County (Dennis Lebwohl, J.), both dated October 1, 2013. The first order, after a hearing, denied the mother's petition for custody of the subject child and granted the father's petition for custody of the subject child. The second order granted the mother visitation with the child on Wednesday afternoons from 2:25 p.m. to 7:30 p.m. and on Saturdays from 8:00 a.m. to 8:00 p.m.
ORDERED that the orders are affirmed, without costs or disbursements.
The Family Court did not err in allowing the mother to represent herself at the hearing. The record, as a whole, demonstrates that the mother made a knowing, voluntary, and intelligent decision to waive her right to counsel and to proceed pro se (see People v Providence, 2 NY3d 579, 582-583; People v Arroyo, 98 NY2d 101, 102-105; Matter of Francis v Holder, 71 AD3d 1018, 1019).
"The paramount concern in any custody or visitation determination is the best interests of the child, under the totality of the circumstances" (Matter of Boggio v Boggio, 96 AD3d 834, 835; see Matter of Wilson v McGlinchey, 2 NY3d 375, 380-381; Eschbach v Eschbach, 56 NY2d 167, 171). A hearing court's findings are accorded deference, and will not be disturbed unless they lack a sound and substantial basis in the record (see Matter of Torres v Ojeda, 108 AD3d 570, 570-571; Cervera v Bressler, 90 AD3d 803, 805; Matter of Elliott v Felder, 69 AD3d 623, 623).
Here, the Family Court properly considered the totality of the circumstances, and its [*2]determination to award sole custody of the subject child to the father is supported by a sound and substantial basis in the record (see Eschbach v Eschbach, 56 NY2d at 171-172; Kramer v Griffith, 119 AD3d 655, 656; Matter of Mitchell v Mitchell, 113 AD3d 775, 776). Moreover, the court's determination that it would be in the subject child's best interests to have limited visitation with the mother has a sound and substantial basis in the record (see Kramer v Griffith, 119 AD3d at 656; Matter of Lane v Lane, 68 AD3d 995, 997).
The mother's contention that the Family Court improvidently exercised its discretion in making its determination without conducting an in camera interview of the subject child is without merit (see Matter of Son v Ramos, 117 AD3d 745, 746-747; Matter of Asgedom v Asgedom, 51 AD3d 787, 788).
DILLON, J.P., LEVENTHAL, AUSTIN and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


324 F.2d 38
EASTERN AIR LINES, INC., Appellant,v.Joan A. SILBER and William Silber, her husband, Appellees.
No. 20116.
United States Court of Appeals Fifth Circuit.
Nov. 6, 1963.

A. Lee Bradford, A. H. Toothman and Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, Fla., for appellant.
J. Arthur Hawkesworth, Jr., Miami, Fla., for appellees.
Before TUTTLE, Chief Judge, and BROWN and BELL, Circuit Judges.
TUTTLE, Chief Judge.

1
This is an appeal from a judgment of the trial court based on a jury verdict giving damages to the appellees for injuries suffered by the wife during the operation of a flight of appellant's aircraft.  The jury was fully warranted to find that during a flight of the airplane, while in view of a storm at a distance estimated by the pilot at not less than five miles, it reacted suddenly and violently to air turbulence causing Mrs. Silber to be thrown from her seat, resulting in injury to her back.  At the time of the occurrence it is undisputed that no signal had been given to the passengers to fasten their seat belts, the aircraft's radar was not operating, although appellant's witnesses testified that distance from a storm could be more accurately gauged by the use of radar, and also that estimates of distance from a storm were, in effect, unreliable when made based on visual means alone.  Without attempting to recite the evidence more fully, we conclude that there was sufficient evidence to warrant submission of the case to the jury as to appellant's negligence.

2
The only substantial point raised by appellant on this appeal is one paragraph of the charge to the jury dealing with the measure of care owed by the carrier.  Since this paragraph must be considered in light of the remaining instructions touching on the same subject matter, we quote here the entire charge of the court dealing with the standards of care:

3
'I charge you that merely because a person suffers an injury while flying as a passenger on a scheduled flight does not in and of itself create any liability on the part of the carrier.  A common carrier of passengers such as an airline is required to exercise with respect to its passengers the highest degree of care consistent with practical operation of the conveyance.  It must use such degree of care, not only with respect to the operation of the conveyance, but also with respect to its equipment, its maintenance and the adjustment of all of its parts.  However, a common carrier is not required to guarantee the safety of its passengers against all injuries, but only those which the exercise of the highest degree of care could have averted.

4
'Furthermore, a passenger on a common carrier is required to exercise reasonable care for his or her own safety and is chargeable with knowledge of conditions which his or her senses record.

5
'While the defendant owes a high degree of care, in this case you must judge its conduct by the circumstances.  The more likelihood of danger requires greater care.  The less likelihood of danger requires less care.  So as to each case of this kind, you must judge the conduct of the defendant as to what would have been reasonable action under the circumstances in view of the high degree of care with which they are charged.

6
'A passenger on an airplane accepts as his responsibility certain conditions.  It is well known that an airplane does not travel on a fixed rigid path.  There are necessarily variations in the line of flight over which the airline and its employees have no control.  If you find that the airline knew or should have known of the likelihood of turbulence at the time and place of the incident described by the witnesses in this case, then the defendant or its employees would be obligated to warn the passengers if they had sufficient time to do so, after they knew or should have known of turbulence likely to affect the flight of the ship.

7
'On the other hand, if the defendant's employees operating the plane had no knowledge of any turbulence likely to affect the flight of the ship, by the exercise of reasonable care on their part, then there would be no liability for injuries suffered by passengers because of the defendant's failure to warn them of unexpected air turbulence.

8
'It is common knowledge that airplanes have not yet achieved the constant stability in flight so that the pilot can maintain an even, steady flight on a direct plane, and this is known or should be known to passengers.  Air turbulence in this case had without contradiction been referred to as clear air turbulence.  There can be no liability on the part of the defendant to either plaintiff unless the pilot and co-pilot of this plane knew or should have known of the clear air turbulence to have avoided it or to have warned the passengers so that they could have fastened their seat belts.

9
'If it is possible to determine that under certain conditions down-drafts are likely, then it would be the duty of the plane operator in exercising the high degree of care required, to take whatever precautions are necessary to guard against dangerous consequences.

10
'You are instructed that in determining whether the defendant acted in a reasonably prudent manner considering all the circumstances and the high degree of care with which it is charged, you may consider what equipment was used or could have been used by the defendant to determine weather conditions under the conditions forecast and/or prevailing at the time of this accident.'

11
The part of the charge objected to by appellant is the paragraph reading: 'If it is possible to determine that under certain conditions down-drafts are likely, then it would be the duty of the plane operator in exercising the high degree of care required, to take whatever precautions are necessary to guard against dangerous consequences.'  Read standing by itself, it would appear that this paragraph is not properly adjusted to the trial of the case before the court, or it would appear that some language intended to be included was left out.  However, viewed in light of the sentence immediately preceding this paragraph, we conclude that as to any part of the paragraph objected to by the appellant, it did not constitute substantial error in explaining to the jury the standard of care owed by the appellant to its passengers.

12
Following the statement, 'There can be no liability on the part of the defendant to either plaintiff unless the pilot and co-pilot of this plane knew or should have known of the clear air turbulence to have avoided it or to have warned the passengers so that they could have fastened their seat belts,' it seems to us clear that the language of the challenged paragraph merely means that if, in fact, the pilot and co-pilot of this plane had determined that the conditions existed under which 'down-drafts are likely,' then it would be their duty to exercise whatever precautions were necessary to guard against dangerous consequences.  We do not construe the language to mean that the airline was required, under an absolute duty, to determine the likely presence of the air turbulence that here produced the injury.  We think the objection made by appellant's counsel to this paragraph of the charge reached only this point.  It did not accept to the charge on the ground that it was not adjusted to the facts of the case.

13
Appellant also complains of the repeated use by the trial court of terminology indicating that the appellant was required to exercise the high, or the highest degree of care consistent with operation of the airline.  We think these several references to the high degree of care are not unwarranted since they are primarily found in reference to the court's statement to the jury as to the application of the standard in certain hypothetical situations presented by the trial judge.

14
The trial appearing to be without other error, the judgment is

15
Affirmed.


226 B.R. 591 (1998)
In re Stephen WINCH, Kathleen Winch, Debtors.
Bankruptcy No. 97-13768.
United States Bankruptcy Court, S.D. Ohio, Western Division.
September 3, 1998.
Stephen M. Meiser, Cincinnati, Ohio, for Plaintiff.
Harold Jarnicki, Lebanon, Ohio, for Defendant.
ORDER RE: DEBTORS' MOTION FOR ORDER DETERMINING NON-EXEMPT EQUITY IN CERTAIN REAL ESTATE
J. VINCENT AUG, Jr., Bankruptcy Judge.
This matter is before the Court on the Debtors' Motion for an Order Determining the Non-Exempt Equity in the Real Estate Located at 4922 Assisi Lane Available for *592 Distribution to the Unsecured Creditors (Doc. 16), the United States' Response (Doc. 17), and the Trustee's Response (Doc. 19). A hearing was held on July 21, 1998.
The Court has jurisdiction over this matter by virtue of 28 U.S.C. § 1334 and the general order of reference entered in this district. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(O).
The issue before the Court is whether the chapter 7 Trustee may exclude the capital gain from the sale of the Debtors' residence under I.R.C. § 121. The competing interests are three-fold. The United States wants to maximize the taxes paid under the Internal Revenue Code. The Debtors want to maximize their incidents of ownership to the extent possible under the Bankruptcy Code. The Trustee wants to maximize distributions to the Debtors' unsecured creditors.
The Debtors filed their chapter 7 petition on June 16, 1997. The Debtors' residence has a fair market value of approximately $100,000.[1] Using an estimated sale price of $95,000 and taking into account the first and second mortgages of $56,400 and $8,300 respectively, a 7 to 10% cost of sale allocation, the Debtors' exemption of $10,000[2], and an approximate capital gain tax of $10,000[3], there would be approximately $3,000 generated from the sale of the property for distribution to the unsecured creditors. It is questionable whether the Trustee would choose to sell the property for this relatively minimal distribution amount. However, if the Trustee did not have to pay the capital gain tax, this would "free up" an additional $10,000 available for distribution and justify the sale of the property.[4]
Prior to 1997, I.R.C. § 121 ("old I.R.C. § 121") read as follows:
(a) General rule. At the election of the taxpayer, gross income does not include gain from the sale or exchange of property if  (1) the taxpayer has attained the age of 55 before the date of the sale or exchange, and (2) during the 5-year period ending on the date of the sale or exchange, such property has been owned and used by the taxpayer as his principal residence for period aggregating 3 years or more.
Old I.R.C. § 121 had a dollar limitation of $125,000 and was applicable to only one sale or exchange by a taxpayer or his spouse.
Pursuant to the Taxpayer Relief Act of 1997, Pub.L. No. 105-34, August 5, 1997, I.R.C. § 121 ("amended I.R.C. § 121") was amended to read as follows:
(a) Exclusion. Gross income shall not include gain from the sale or exchange of property if, during the 5-year period ending on the date of the sale or exchange, such property has been owned and used by the taxpayer as the taxpayer's principal residence for periods aggregating 2 years or more.
Amended I.R.C. § 121 has a dollar limitation of $250,000 and is limited to one sale or exchange every two years.
The other applicable tax code section, I.R.C. § 1398, was not amended in 1997. It continues to read in pertinent part:
(g) Estate succeeds to tax attributes of debtor. The estate shall succeed to and take into account the following items . . . of the debtor
(1) Net operating loss carryovers. The net operating loss carryovers determined under section 172.
(2) Charitable contributions carryovers. The carryover of excess charitable contributions determined under section 170(d)(1).

*593 (3) Recovery of tax benefit items. Any amount to which section 111 . . . applies.
(4) Credit carryovers, etc. The carryovers of any credit, and all other items which, but for the commencement of the case, would be required to be taken into account by the debtor with respect to any credit.
(5) Capital loss carryovers. The capital loss carryover determined under section 1212.
(6) Basis, holding period, and character of assets. In the case of any asset acquired . . . by the estate from the debtor, the basis, holding period, and character it had in the hands of the debtor.
(7) Method of accounting. The method of accounting used by the debtor.
(8) Other attributes. Other tax attributes of the debtor, to the extent provided in regulations prescribed by the Secretary as necessary or appropriate to carry out the purposes of this section.
At the hearing, the United States contended that this Court did not have jurisdiction over the issue because the real property had not yet been sold, therefore, there was no case or controversy. We disagree, choosing to follow In re Popa, see infra, in that regard. 218 B.R. at 423-25.
Prior to the 1997 amendment to I.R.C. § 121, the courts directly addressing this issue held that the trustee was not allowed to use the capital gain exclusion of I.R.C. § 121. See In re Barden, 205 B.R. 451 (E.D.N.Y. 1996) aff'd 105 F.3d 821 (2nd Cir.1997); In re Mehr, 153 B.R. 430 (Bankr.D.N.J.1993); see also In re Young, 153 B.R. 886 (Bankr. D.Neb.1993) (capital gain tax liability that would be incurred in hypothetical liquidation of debtor's assets had to be considered for purpose of determining best interest of creditors test under chapter 13). Following the 1997 amendment to I.R.C. § 121, the two reported decisions on this issue, In re Popa, 218 B.R. 420 (Bankr.N.D.Ill.1998) (appeal pending) and In re Bradley, 222 B.R. 313 (Bankr.M.D.Tenn.1998) (Lundin, J.), held that the trustee could avail himself of the exclusion for the benefit of the estate. Contrary to the courts in In re Popa and In re Bradley, we believe that the rationale of In re Mehr, as followed by In re Barden, is still valid.
It is a well established principle that exclusions from taxation are to be strictly interpreted against the taxpayer. In re Mehr, 153 B.R. at 432-33. The taxpayer must point to the specific provision of the Internal Revenue Code which clearly authorizes an exclusion. Id. at 433 (citations omitted). Although the 1997 amendment removed some of the "individual" attributes of old I.R.C. § 121, i.e., the age requirement and the one-time election requirement, the critical "individual" attribute remains, namely, that the exclusion is available only for the taxpayer who has resided in the subject property as his principal residence for at least two of the past five years.
It is also a well established principle of statutory construction that statutes in pari materia, or statutes on the same matter or subject, are to be construed together. It is, therefore, necessary to read I.R.C. § 121 and I.R.C. § 1398 together to resolve the pending issue. Also, because the language of these two statutes is not plain, especially when the two statutes are read together, compare In re Mehr, 153 B.R. at 433 (focus is on "plain" language of I.R.C. § 121) with In re Bradley, 222 B.R. at 316 (focus is on "plain" language of I.R.C. § 1398), it is appropriate to look beyond the language of the statutes and focus on the underlying policies.
The policy of old I.R.C. § 121 was to make funds available for living expenses during an individual's retirement years. See In re Mehr, 153 B.R. at 434 (citing H.R. 749, 88th Cong., 2d Sess. (1964)). The legislative history of the 1997 amendment indicates that there were several reasons for the changes to old I.R.C. § 121. First, the $125,000 threshold of old I.R.C. § 121 created record-keeping requirements for the taxpayer, i.e., calculation of the cost basis, often for decades, that were thought to be too burdensome. Second, the one-time exclusion of old I.R.C. § 121 encouraged taxpayers to purchase larger and more expensive homes only to avoid a taxable event, thereby promoting an inefficient use of a taxpayer's financial resources. Third, both the $125,000 limit and *594 the one-time exclusion of old I.R.C. § 121 discouraged some older taxpayers from selling their homes and created an unwanted constraint of the mobility of the elderly. Fourth, the one-time exclusion of old I.R.C. § 121 had the unintended effect of penalizing a taxpayer who married an individual who had already taken the exclusion. See H.R.Rep. No. 148, 105th Cong., 1st Sess. at 760-62 (1997). The legislative history shows that the policy of old I.R.C. § 121 has survived and been expanded upon in amended I.R.C. § 121 and supports a holding that it is the individual taxpayer and not the bankruptcy estate that should be eligible for the exclusion.[5]
We agree with the position taken in In re Mehr that I.R.C. § 1398(g) provides an exhaustive list of attributes that the estate receives from the debtor. 153 B.R. at 437 (followed by In re Barden, 205 B.R. at 455 and In re Rueter, 158 B.R. 163, 167 (N.D.Cal. 1993) (regarding passive activity loss)); see also In re Antonelli, 1992 WL 403097 at *2 (Bankr.D.Md.1992) (regarding passive activity loss); DiStasio v. United States, 22 Cl.Ct. 36, 52 (1990) (regarding claim of right). I.R.C. § 1398(g) lists numerous specific tax attributes of the debtor relating to specific sections of the Internal Revenue Code to which the estate succeeds. I.R.C. § 121 is not listed. Nor has the Secretary promulgated any regulations under I.R.C. § 1398(g)(8) which would bring I.R.C. § 121 within the ambit of I.R.C. § 1398(g). See In re Mehr, 153 B.R. at 437. The fact that I.R.C. § 1398(g) was not amended as a conforming amendment along with the changes to I.R.C. § 121 in the Taxpayer Relief Act of 1997 affords an even stronger argument that the estate should not succeed to the capital gain exclusion available to the individual taxpayer.
The court in In re Popa reasoned that since under I.R.C. § 1398(g)(6) the estate succeeds to the "character" of the asset in the hands of the debtor, the estate may be said to have used the property as a principal residence for at least two of the last five years. 218 B.R. at 426. We respectfully disagree. This Court reasons that it takes more than one general word in I.R.C. § 1398(g)(6) to open the door so widely to the I.R.C. § 121 exclusion. This conclusion is supported by the rule that exclusions are to be strictly construed against the taxpayer and the rule that the taxpayer must point to the specific provision of the tax code which authorizes an exclusion. See In re Mehr, 153 B.R. at 432-33. Furthermore, under In re Popa's broad interpretation of the term "character" in I.R.C. § 1398(g)(6), the estate would succeed to every tax attribute of the debtor and there would have been no reason for Congress to specify the attributes it did so specify in I.R.C. § 1398(g)(1) through (g)(5) or to allow for the Secretary to prescribe additional tax attributes as provided in I.R.C. § 1398(g)(8). As we interpret I.R.C. § 1398(g)(6), that subsection is to insure that when the estate pays a tax or is otherwise properly allowed a tax "break" that the tax or tax "break" is properly calculated. See In re Perlman, 188 B.R. 704, 708 (Bankr. S.D.Fla.1995).
In In re Kochell, 804 F.2d 84 (7th Cir. 1986), the Seventh Circuit held that the bankruptcy estate rather than the debtor was responsible for paying the penalty tax for the trustee's early withdrawal of the debtor's IRA. Contrary to the Court in In re Popa, we find that In re Kochell is inapplicable to the issue at hand. First, the issue in In re Kochell did not involve the capital gain exclusion of I.R.C. § 121. Second, the issue in In re Kochell was which of two entities, the trustee or the debtor, was the proper party to pay a tax; it did not involve whether an exclusion was going to be taken (the "nonpayment" of a tax). Third, In re Kochell was grounded in equity, as evidenced by the Court's statement that there was "no good reason" for the trustee to pay the income tax and not the penalty tax on the early withdrawal. 804 F.2d at 86-87.
The court in In re Bradley reasons that because I.R.C. § 121 creates an exclusion from income, and because I.R.C. § 1398(c) *595 states that "taxable income of the estate shall be computed in the same manner as for an individual" (emphasis added), that the estate is compelled to receive the same tax treatment as the individual taxpayer. This conclusion, which at first appears convincing, fails to take into consideration I.R.C. § 1398(g), which subsection specifically addresses the tax attributes of the debtor to which the estate succeeds. The In re Bradley court concludes that the capital gain exclusion is not a tax attribute. See 222 B.R. at 317. We respectfully disagree. The term "tax attribute" is undefined in the I.R.C. We believe that a tax attribute is simply a legal construct that flows from a certain series of events.[6] Because of the unique series of events that are conditions precedent to the I.R.C. § 121 capital gain exclusion  that the property must have been used by the taxpayer as a residence for a certain period of time  we find that the capital gain exclusion of I.R.C. § 121 is not available to the estate.
Although it may appear unfair to the unsecured creditors for the trustee to bypass the sale of a debtor's residence because of the trustee's need to pay the capital gain tax and other expenses associated with the sale, it is not within the purview of this Court to rewrite the Internal Revenue Code. See In re Mehr, 153 B.R. at 438; In re Barden, 205 B.R. at 455-56.
For the reasons set forth above, we find that the Trustee may not exclude the capital gain from the sale of the Debtors' residence under I.R.C. § 121. The Trustee is left with the business decision of whether to sell the Debtors' residence under these circumstances.
IT IS SO ORDERED.
NOTES
[1]  The Court does not make a finding of the actual fair market value of the property because such a factual finding is not necessary to the determination of the legal issue before the Court.
[2]  The Court notes that this issue would not arise in states with an unlimited homestead exemption.
[3]  The Trustee calculated this tax amount using a sale price of $95,000 and a cost basis of $58,900.
[4]  The Trustee contends that not selling the house allows the Debtors to "walk away with approximately $30,000 worth of equity." Doc. 19, p. 2. This contention is somewhat misleading since the $30,000 amount is composed of the Debtors' $10,000 exemption, the $10,000 cost of sale, and the $10,000 capital gain tax.
[5]  The Courts in In re Popa and In re Bradley did not address the legislative history of amended § 121.
[6]  This is not inconsistent with the definition of tax attributes as "items that have continuing tax consequences for the entity in question" referenced in In re Bradley, 222 B.R. at 317 (citation omitted).


249 U.S. 554 (1919)
BEAUMONT, ASSIGNEE OF BORCK,
v.
PRIETO ET AL., ADMINISTRATORS OF LEGARDA, ET AL.
No. 303.
Supreme Court of United States.
Argued April 17, 1919.
Decided May 5, 1919.
APPEAL FROM AND ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS.
Mr. Joseph D. Sullivan, with whom Mr. T.T. Ansberry and Mr. Thos. D. Aitken were on the brief, for appellant and plaintiff in error.
Mr. Alex. Britton, with whom Mr. Evans Browne, Mr. H.W. Van Dyke and Mr. Charles C. Cohn were on the briefs, for appellees and defendants in error.
MR. JUSTICE HOLMES delivered the opinion of the court.
This is a suit for the specific performance of an alleged contract to sell land. The court of first instance made a *555 decree for the plaintiff, but the decree was reversed by the Supreme Court of the Philippine Islands and the defendants were absolved from the complaint. There is a motion to dismiss, on the ground that the writ of error and citation were not made returnable in time. But without going into particulars, as the appellant had color of authority from the court and a judge of that court, it appears to us that justice will be better served by dealing with the merits of the case. See Southern Pine Co. v. Ward, 208 U.S. 126, 137.
On the merits the only question is whether the alleged contract was made. The first material step was the following offer, dated December 4, 1911: "Mr. W. Borck, Real Estate Agent, Manila, P.I. Sir: In compliance with your request I herewith give you an option for three months to buy the property of Mr. Benito Legarda, known as the Nagtahan hacienda, situated in the district of Sampaloc, Manila, and consisting of about 1,993,000 square meters of land, for the price of its assessed government valuation. B. Valdes." There is no dispute that the assessed government valuation was 307,000 pesos, that Legarda owned the land and that Valdes had power to make the offer. On January 17, 1912, Borck wrote to Valdes: "In reference to our negotiations regarding" the property in question, "I offer to purchase said property for the sum of three hundred and seven thousand (307,000,00) pesos, Ph. C., cash, net to you, payable the first day of May, 1912, or before and with delivery of a torrens title free of all encumbrances as taxes and other debts." There was dispute about the admissibility of this letter and its being signed, but we see no occasion to disturb the opinion of the Supreme Court that it was a part of the transaction and was admissible. No answer was received, and on January 19 Borck wrote again, saying that he was ready to purchase the property at the price and that full payment would be made on or before *556 March 3, provided all documents in connection with the hacienda were immediately placed at his disposal and found in good order. On January 23, Borck wrote again that he could improve the condition of payment and would pay ten days after the documents had been put at his disposal for inspection, &c., and finally, on February 28, wrote that the price was ready to be paid over and requesting notice when it was convenient to allow inspection of all papers. Before this last letter was written Valdes had indicated that he regarded compliance as an open question by saying in conversation that he wished to communicate with Mr. Legarda. Subsequently conveyance was refused.
The letter of January 17 plainly departed from the terms of the offer as to the time of payment and was, as it was expressed to be, a counter offer. In the language of a similar English case, "plaintiff made an offer of his own . . . and he thereby rejected the offer previously made by the defendant. . . . It was not afterwards competent for him to revive the proposal of the defendant, by tendering an acceptance of it." Hyde v. Wrench, 3 Beavan, 334. Langdell, Cont., § 18. We do not find it necessary to go into the discussion of the later communications, which led the Supreme Court to the conclusion that they also would not have been sufficient. The right to hold the defendant to the proposed terms by a word of assent was gone, and after that all that the plaintiff could do was to make an offer in his turn. It would need a very much stronger case than this to induce us to reverse the decision of the court below. Cardona v. Quinones, 240 U.S. 83, 88.
Judgment affirmed.