245 F.3d 809 (D.C. Cir. 2001)
Trans Union Corporation, Petitionerv.Federal Trade Commission, Respondent
No. 00-1141
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 6, 2001Decided April 13, 2001

[Copyrighted Material Omitted]
On Petition for Review of an Order of the Federal Trade Commission
Roger L. Longtin argued the cause for petitioner. With him  on the brief was Stephen L. Agin.
Lawrence DeMille-Wagman, Attorney, Federal Trade  Commission, argued the cause for respondent.  With him on  the brief were Debra A. Valentine, General Counsel, and  John F. Daly, Assistant General Counsel.
Before:  Edwards, Chief Judge, Ginsburg and Tatel,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge:

1
Petitioner, a consumer reporting  agency, sells lists of names and addresses to target marketers--companies and organizations that contact consumers  with offers of products and services.  The Federal Trade  Commission determined that these lists were "consumer reports" under the Fair Credit Reporting Act and thus could no  longer be sold for target marketing purposes.  Challenging  this determination, petitioner argues that the Commission's  decision is unsupported by substantial evidence and that the  Act itself is unconstitutional.  Because we find both arguments without merit, we deny the petition for review.

2
* Petitioner Trans Union sells two types of products.  First,  as a credit reporting agency, it compiles credit reports about  individual consumers from credit information it collects from  banks, credit card companies, and other lenders.  It then  sells these credit reports to lenders, employers, and insurance  companies.  Trans Union receives credit information from  lenders in the form of "tradelines."  A tradeline typically  includes a customer's name, address, date of birth, telephone  number, Social Security number, account type, opening date  of account, credit limit, account status, and payment history. Trans Union receives 1.4 to 1.6 billion records per month. The company's credit database contains information on 190  million adults.

3
Trans Union's second set of products--those at issue in this  case--are known as target marketing products.  These consist of lists of names and addresses of individuals who meet  specific criteria such as possession of an auto loan, a department store credit card, or two or more mortgages.  Marketers purchase these lists, then contact the individuals by mail  or telephone to offer them goods and services.  To create its  target marketing lists, Trans Union maintains a database  known as MasterFile, a subset of its consumer credit database.  MasterFile consists of information about every consumer in the company's credit database who has (A) at least  two tradelines with activity during the previous six months, or  (B) one tradeline with activity during the previous six months  plus an address confirmed by an outside source.  The company compiles target marketing lists by extracting from MasterFile the names and addresses of individuals with characteristics chosen by list purchasers.  For example, a department  store might buy a list of all individuals in a particular area  code who have both a mortgage and a credit card with a  $10,000 limit.  Although target marketing lists contain only  names and addresses, purchasers know that every person on  a list has the characteristics they requested because Trans  Union uses those characteristics as criteria for culling individual files from its database.  Purchasers also know that every  individual on a target marketing list satisfies the criteria for  inclusion in MasterFile.

4
The Fair Credit Reporting Act of 1970 ("FCRA"), 15  U.S.C. §§ 1681, 1681a-1681u, regulates consumer reporting  agencies like Trans Union, imposing various obligations to  protect the privacy and accuracy of credit information.  The  Federal Trade Commission, acting pursuant to its authority  to enforce the FCRA, see 15 U.S.C.  1681s(a), determined  that Trans Union's target marketing lists were "consumer  reports" subject to the Act's limitations.  The FCRA defines  "consumer report" as:

5
[A]ny written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for

6
(A) credit or insurance to be used primarily for personal, family, or household purposes;

7
(B) employment purposes;  or

8
(C) any other purpose authorized under section 1681b of this title.

9
15 U.S.C.  1681a(d)(1).  Finding that the information Trans  Union sold was "collected in whole or in part by [Trans  Union] with the expectation that it would be used by credit  grantors for the purpose of serving as a factor in establishing  the consumer's eligibility for one of the transactions set forth  in the FCRA," and concluding that target marketing is not an  authorized use of consumer reports under section 1681b, In re  Trans Union Corp., 118 F.T.C. 821, 891 (1994), the Commission ordered Trans Union to stop selling target marketing  lists, id. at 895.

10
Trans Union petitioned for review.  In Trans Union Corp.  v. FTC, 81 F.3d 228 (D.C. Cir. 1996) ("Trans Union I"), we  agreed with the Commission that selling consumer reports for  target marketing violates the Act.  Id. at 233-34.  We nevertheless set aside the Commission's determination that Trans  Union's target marketing lists amounted to consumer reports. Id. at 231-33.  The Commission, we held, failed to justify its  finding that Trans Union's lists, by conveying the mere fact  that consumers had a tradeline, were communicating information collected for the purpose of determining credit eligibility. We found that the Commission had failed to provide evidence  to support the proposition that "the mere existence of a  tradeline, as distinguished from payment history organized  thereunder," was used for credit-granting decisions or was  intended or expected to be used for such decisions.  Id. at  233. (The parties' arguments in Trans Union I and in the  proceedings on remand focused on the relevance of the  information in the company's lists to consumer eligibility for  credit;  accordingly, the information's relevance to the other  uses the statute lists--such as determining eligibility for  insurance and employment--are not at issue in this case.  See  In re Trans Union Corp., Opinion of the Commission, No.  9255, slip op. at 16 n.20 (Feb. 10, 2000) ("FTC Opinion").)

11
On remand, following extensive discovery, more than a  month of trial proceedings, and an initial decision by an  Administrative Law Judge, the Commission found that Trans Union's target marketing lists contain information that credit  grantors use as factors in granting credit.  Accordingly, the  Commission concluded, the lists are "consumer reports" that  Trans Union may not sell for target marketing purposes. FTC Opinion at 33.  The Commission also rejected Trans  Union's argument that such a restriction would violate its  First Amendment rights.  Applying intermediate scrutiny,  the Commission found that the government has a substantial  interest in protecting private credit information, that the  FCRA directly advances that interest, and that the Act's  restrictions on speech are narrowly tailored.  Id. at 37-52. The Commission thus ordered Trans Union to "[c]ease and  desist from distributing or selling consumer reports, including  those in the form of target marketing lists, to any person  unless [the company] has reason to believe that such person  intends to use the consumer report for purposes authorized  under Section [1681b] of the Fair Credit Reporting Act."  In  re Trans Union Corp., Final Order, No. 9255 (Feb. 10, 2000). Trans Union again petitions for review.

II

12
As we pointed out in Trans Union I, the first element of  the FCRA's definition of consumer report--"bearing on a  consumer's credit worthiness, credit standing, credit capacity,  character, general reputation, personal characteristics, or  mode of living," 15 U.S.C.  1681a(d)(1)--"does not seem very  demanding," for almost any information about consumers  arguably bears on their personal characteristics or mode of  living.  See 81 F.3d at 231.  Indeed, Trans Union does not  challenge the Commission's conclusion that the information  contained in its lists meets this prong of the definition of  consumer report.

13
Whether the company's target marketing lists qualify as  consumer reports thus turns on whether information they  contain "is used or expected to be used or collected in whole  or in part for the purpose of serving as a factor in establishing the consumer's eligibility for [credit]."  15 U.S.C.   1681a(d)(1). According to the Commission, "a factor in establishing the consumer's eligibility for [credit]," id., includes any type of information credit grantors use in their  criteria for "prescreening" or in "credit scoring models."  See  FTC Opinion at 16-17.  "Prescreening" involves selecting  individuals for guaranteed offers of credit or insurance.  See  id. at 18;  see also Trans Union I, 81 F.3d at 234 (defining  "prescreening" as "the sale of a list of people preselected for  credit worthiness by some specified criteria, where the buyer  of the list agrees in advance to make a firm offer of credit to  each listed person").  "Credit scoring models" are statistical  models for predicting credit performance that are developed  by observing the historical credit performance of a number of  consumers and identifying the consumer characteristics that  correlate with good and bad credit performance.  See FTC  Opinion at 17.  Applying its prescreening/credit scoring model standard, the Commission found that Trans Union's lists  contain the type of information " 'used' and/or 'expected to be  used' ... as a factor in establishing a consumer's eligibility  for credit."  Id. at 15;  see also id. n.19.

14
Trans Union urges us to reject the Commission's interpretation of the Act in order to avoid what the company calls  "serious constitutional questions."  Pet'r Opening Br. at 9. In support, it cites DeBartolo Corp. v. Florida Gulf Coast  Building & Construction Trades Council, where the Supreme  Court refused to defer to the NLRB's interpretation of a  provision of the NLRA because the Court believed it raised  serious First Amendment problems.  485 U.S. 568, 574-77  (1988).  But as we demonstrate in Section III, infra, Trans  Union's constitutional arguments are without merit, so we  have no basis for rejecting the Commission's statutory interpretation on that ground.

15
Nor has Trans Union offered a basis for questioning the  Commission's statutory interpretation on other grounds.  The  company does not mention the Commission's interpretation of  the statute in the "Issues Presented For Review" section of  its brief.  Cf. Fed. R. App. P. 28(a)(5) (requiring that appellants' and petitioners' briefs state the issues presented for  review).  Although scattered language in the brief hints at a statutory interpretation challenge, that language appears in a  section entitled "The Record Does Not Support The Conclusion Reached By The Commission."  Trans Union has thus  failed to put the Commission on notice that it faced a nonconstitutional challenge to its interpretation of the statute.

16
We have the same reaction to the brief's occasional suggestions that the Commission's decision was arbitrary and capricious.  Not only do these suggestions appear in a section  entitled "The Commission's Interpretation Of FCRA Raises  Serious Constitutional Questions," see, e.g., Pet'r Opening Br.  at 19 (referring to "illogical contradictions"), but the list of  issues presented for review neither mentions the arbitrary  and capricious standard nor otherwise questions the reasonableness of the Commission's decision.

17
We thus turn to the one non-constitutional argument that  Trans Union clearly mounts:  that the Commission's decision  is unsupported by substantial evidence.  A footnote to the  title of this portion of its brief states:

18
The Order is replete with statements unsupported by the evidence....  The word limitation of [Federal Rule of Appellate Procedure] 32(a)(7) makes it impossible to address each such misstatement here.  It is the responsibility of the Commission's counsel, however, to ensure that the Court is not misled by the statements in the Order not supported by the evidence.

19
Id. at 21 n.7.  To bring a substantial evidence challenge,  however, Trans Union must do more than assert generally  that the decision is unsupported by substantial evidence.  It  must identify the specific findings it challenges and demonstrate that each finding is either unsupported by evidence or,  because the Commission unreasonably discounted contrary  evidence, unsupported by "the record in its entirety."  See  Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). The 14,000 words permitted by Rule 32(a)(7) are more than  enough to accomplish this task.

20
Instead of challenging the Commission's findings regarding  specific target marketing products, Trans Union points to evidence relating to the general question of whether the  information in its target marketing lists is used to determine  credit worthiness.  This is not the question before us.  As we  indicate above, the Commission interprets "factor in establishing the consumer's eligibility for credit," 15 U.S.C.   1681a(d)(1), to include any information considered by lenders in prescreening, which, as two witnesses testified, can  involve consideration of criteria other than credit worthiness,  e.g., whether a given consumer is likely to respond to an offer  of credit.  Because Trans Union has not challenged the  Commission's interpretation of the statute, its argument that  the information the company sells is not actually used to  determine credit worthiness is beside the point.  Moreover,  Trans Union cites no testimony refuting the Commission's  finding that the information in its target marketing lists is  used in prescreening.

21
Not only has Trans Union thus failed to mount a proper  substantial evidence challenge to the Commission's finding  that lenders take list information into account in credit models and prescreening, but we have no doubt that the decision  does find support in the record.  Consider, for example,  Trans Union's "Master File/Selects" product line, which allows marketers to request lists based on any of five categories of information:  (1) credit limits (e.g., consumers with  credit cards with credit limits over $10,000), (2) open dates of  loans (e.g., consumers who took out loans in the last six  months), (3) number of tradelines, (4) type of tradeline (e.g.,  auto loan or mortgage), and (5) existence of a tradeline.  The  Commission cites testimony and other record evidence that  support its finding that lenders consider each of these five  categories of information in prescreening or credit scoring  models.  Beginning with credit limits, the Commission cites  the testimony of a statistician who builds credit scoring  models.  FTC Opinion at 19.  That witness explained that  scoring models rely in part on consumer utilization of credit,  calculated by dividing a consumer's current outstanding balance by the consumer's credit limit.  To support its finding  regarding open dates of loans, the Commission relied on the  testimony of a vice president of a company that builds credit scoring models.  Id. According to that witness, some scoring  models use the open date of the oldest tradeline in a consumer's credit file as a predictive characteristic.  The witness also  testified that some credit scoring models use the date of the  most recently opened tradeline to determine credit risk.  To  support its finding that information about the number of  tradelines in a consumer's credit file is a consumer report, the  Commission cites the testimony of a vice president in charge  of direct mail processing for a bank's credit card department  who explained that, in its credit making decisions, her bank  considers the number of tradelines consumers possess.  Id. at  20 n.30.  The Commission also points to record evidence  demonstrating that Trans Union itself uses the number of  tradelines as a predictive characteristic in its credit scoring  models.  Id. at 20.  As to the type of tradeline, the Commission cites the testimony of representatives of companies that  design credit models who explained that some credit scoring  models, including two used by Trans Union, take into account  possession of a bank card.  FTC Opinion at 21-22.  One  witness testified that Trans Union scoring models also consider possession of a finance company loan to be a predictive  characteristic.  Another witness, this one representing a  credit card company, testified that his company's scoring  models assign points for possession of a mortgage, retail  tradeline, or bank card.  Id. at 21.

22
The record also contains sufficient evidence to support the  Commission's resolution of the issue remanded by Trans  Union I:  whether mere existence of a tradeline is "a factor in  credit-granting decisions."  81 F.3d at 233.  An employee of a  bank that issues credit cards testified that to be eligible for  credit, an individual must have at least one tradeline.  FTC  Opinion at 25.  The vice president of credit scoring at  another credit card issuer testified that the very first question her company asks in prescreening is whether the consumer has a tradeline that has been open for at least a year. Challenging the implications of this testimony, Trans Union  argues that banks ask whether consumers have tradelines not  because the existence of a tradeline is itself a factor in  determining credit eligibility, but because banks want to determine whether there is enough information in consumer  files to make credit eligibility determinations.  This may be  true.  But as we explain above, our task is limited to determining whether substantial record evidence supports the  Commission's finding that banks consider the existence of a  tradeline as a factor in prescreening or credit models.  Because the record contains such evidence, we have no basis for  questioning the Commission's decision.

23
Trans Union has identified one potentially troubling inconsistency in the Commission's decision.  As the company  points out, record evidence demonstrates that lenders consider names and addresses when prescreening consumers for  guaranteed offers of credit, yet the Commission does not  prohibit the sale of names and addresses for target marketing  purposes.  Regarding addresses, the Commission's opinion  says, "[a]lthough some lenders will not extend credit to  consumers with a P.O. Box address, we do not find that the  P.O. Box feature bears on 'credit worthiness, credit standing,  credit capacity, character, general reputation, personal characteristics or mode of living.' "  Id. at 31 n.50.  It is not clear,  however, why receiving mail at a post office should not be  considered an aspect of an individual's "mode of living."  We  need not resolve this issue, however, because Trans Union  presents neither an arbitrary and capricious nor a statutory  interpretation challenge to the Commission's failure to prohibit the sale of names and addresses.  See supra at 814-15.

24
Nor must we resolve any inconsistency between the Commission's decision in this case and a 1993 consent agreement  between the Commission and a Trans Union competitor,  TRW (now Experian).  In contrast to the Commission's decision here, that agreement allowed TRW to sell information  about consumers' ages to target marketers.  Again, although  this might suggest that the Commission has acted arbitrarily  and capriciously in treating similarly situated entities differently, Trans Union has not made such a challenge.  The  Commission thus seems correct that "[t]he TRW Consent is  not before us in this matter and it is without precedential  effect on this opinion."  FTC Opinion at 16 n.22.

III

25
Trans Union's constitutional challenge consists of two arguments.  It claims first that the FCRA is vague, thus running  afoul of the due process guarantee of the Fifth Amendment. Trans Union also argues that the statute violates the free  speech guarantee of the First Amendment because it restricts  its ability to disseminate information.

26
Beginning with the Fifth Amendment challenge, we are  guided by Village of Hoffman Estates v. Flipside, Hoffman  Estates, Inc., 455 U.S. 489, 498 (1982).  "[L]aws," the Court  said, must not only "give the person of ordinary intelligence a  reasonable opportunity to know what is prohibited," but in  order to prevent "arbitrary and discriminatory enforcement,"  they must also "provide explicit standards for those who  apply them."  Id. (quoting Grayned v. City of Rockford, 408  U.S. 104, 108-09 (1972)).  Emphasizing that these principles  should not "be mechanically applied," the Court held that  "economic regulation is subject to a less strict vagueness test  because its subject matter is often more narrow, and because  businesses, which face economic demands to plan behavior  carefully, can be expected to consult relevant legislation in  advance of action."  Id.  The "regulated enterprise," the  Court added, "may have the ability to clarify the meaning of  the regulation by its own inquiry, or by resort to an administrative process."  Id. Finally, "the consequences of imprecision are qualitatively less severe" when laws have "scienter  requirement[s]" and "civil rather than criminal penalties." Id. at 499.

27
Applying this standard, we see no merit in Trans Union's  vagueness argument.  To begin with, because the FCRA's  regulation of consumer reporting agencies is economic, it is  subject to "a less strict vagueness test."  Id. at 498.  Moreover, Trans Union has "the ability to clarify the meaning of  the [FCRA]," id., through the Commission's advisory opinion  procedures.  See 16 C.F.R. 1.1-1.4 (establishing general  procedures for obtaining advisory opinions);  id.  2.41(d)  (establishing procedures for obtaining guidance regarding  compliance with FTC orders).  Selectively quoting from the Commission's regulations, the company disputes the usefulness of advisory opinions, suggesting that they can be  changed at any time and that "the Commission expressly  reserves the right upon rescission of an earlier opinion to  commence an enforcement proceeding."  Pet'r Reply Br. at  10.  The relevant regulation states as follows (the sentences  Trans Union omits are in italics):

28
Any advice given by the Commission is without prejudice to the right of the Commission to reconsider the questions involved and, where the public interest requires, to rescind or revoke the action.  Notice of such rescission or revocation will be given to the requesting party so that he may discontinue the course of action taken pursuant to the Commission's advice.  The Commission will not proceed against the requesting party with respect to any action taken in good faith reliance upon the Commission's advice under this section, where all the relevant facts were fully, completely, and accurately presented to the Commission and where such action was promptly discontinued upon notification of rescission or revocation of the Commission's approval.

29
16 C.F.R.  1.3(b) (emphasis added).  Although the next  subsection of the regulation states that "[a]dvice rendered by  the staff is without prejudice to the right of the Commission  later to rescind the advice and, where appropriate, to commence an enforcement proceeding," id.  1.3(c), the portion of  the regulation omitted by Trans Union makes quite clear that  the company can safely rely on advisory opinions without fear  of penalty should the Commission later change its mind.

30
The FCRA does not fit quite so comfortably under the  other Hoffman Estates criteria.  Although the Act does contain a clear scienter requirement for the imposition of civil  fines, see, e.g., 15 U.S.C.  1681s(a)(2)(A) ("knowing"), it also  provides that anyone who negligently violates the Act may be  liable to injured consumers for actual damages.  Id.   1681o(a).  The statute also authorizes criminal penalties. Id.  1681r (providing for possible imprisonment for "[a]ny  officer or employee of a consumer reporting agency who knowingly and willfully provides information concerning an  individual from the agency's files to a person not authorized  to receive that information").  Even given these distinctions,  however, because of the extremely clear process for "clarify[ing] the meaning of the regulation," Hoffman Estates, 455  U.S. at 498, Trans Union simply does not face a due process  risk of prosecution for conduct it could not have known to be  illegal.

31
Trans Union's First Amendment challenge fares no better. Banning the sale of target marketing lists, the company says,  amounts to a restriction on its speech subject to strict scrutiny.  Again, Trans Union misunderstands our standard of  review.  In Dun & Bradstreet, Inc. v. Greenmoss Builders,  Inc., 472 U.S. 749 (1985), the Supreme Court held that a  consumer reporting agency's credit report warranted reduced  constitutional protection because it concerned "no public issue."  Id. at 762.  "The protection to be accorded a particular  credit report," the Court explained, "depends on whether the  report's 'content, form, and context' indicate that it concerns  a public matter."  Id. n.8.  Like the credit report in Dun &  Bradstreet, which the Supreme Court found "was speech  solely in the interest of the speaker and its specific business  audience," id. at 762, the information about individual consumers and their credit performance communicated by Trans  Union target marketing lists is solely of interest to the  company and its business customers and relates to no matter  of public concern.  Trans Union target marketing lists thus  warrant "reduced constitutional protection."  Id. n.8.

32
We turn then to the specifics of Trans Union's First  Amendment argument.  The company first claims that neither the FCRA nor the Commission's Order advances a  substantial government interest.  The "Congressional findings and statement of purpose" at the beginning of the FCRA  state:  "There is a need to insure that consumer reporting  agencies exercise their grave responsibilities with ... respect  for the consumer's right to privacy."  15 U.S.C.  1681 (a)(4). Contrary to the company's assertions, we have no doubt that this interest--protecting the privacy of consumer credit information--is substantial.

33
Trans Union next argues that Congress should have chosen  a "less burdensome alternative," i.e., allowing consumer reporting agencies to sell credit information as long as they  notify consumers and give them the ability to "opt out." Pet'r Opening Br. at 43-44.  Because the FCRA is not  subject to strict First Amendment scrutiny, however, Congress had no obligation to choose the least restrictive means  of accomplishing its goal.

34
Finally, Trans Union argues that the FCRA is underinclusive because it applies only to consumer reporting agencies  and not to other companies that sell consumer information. But given consumer reporting agencies' unique "access to a  broad range of continually-updated, detailed information  about millions of consumers' personal credit histories," FTC  Opinion at 1, we think it not at all inappropriate for Congress  to have singled out consumer reporting agencies for regulation.  As we explained in Blount v. SEC, "a regulation is not  fatally underinclusive simply because an alternative regulation, which would restrict more speech or the speech of more  people, could be more effective."  61 F.3d 938, 946 (D.C. Cir.  1995).  The primary purpose of underinclusiveness analysis is  to "ensure that the profferred state interest actually underlies  the law, [so] a rule is struck for underinclusiveness only if it  cannot fairly be said to advance any genuinely substantial  governmental interest because it provides only ineffective or  remote support for the asserted goals, or limited incremental  support."  Id. (internal citations omitted).  To survive a First  Amendment underinclusiveness challenge, therefore, "neither  a perfect nor even the best available fit between means and  ends is required."  Id. The FCRA easily satisfies this standard.

35
Trans Union contends that the statute is underinclusive for  another reason, i.e., because it allows the sale of consumer  reports for the purpose of guaranteed offers of credit or  insurance.  Trans Union I disposes of this argument:

36
[B]eing singled out for a firm offer of credit is exactly the sort of thing the Act seeks to promote, and a purpose for which it is quite reasonable to infer the consumer's implicit waiver or consent.  Moreover, prescreening and the guaranteed offers of credit it spawns can only take place through the use of consumer reports, whereas the use of credit data for non-credit-related mailings is at most helpful to those ends.

37
81 F.3d at 234.

IV

38
Having considered and rejected Trans Union's other arguments, we deny the petition for review.

39
So Ordered.


                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

                                     IN THE
                ARIZONA COURT OF APPEALS
                                 DIVISION ONE

           DANIELLE SAHLIN (f/n/a HARTFIELD), Petitioner

                                        v.

    THE HONORABLE ELAINE FRIDLUND-HORNE, Judge of the
SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County
               of COCONINO, Respondent Judge,

                SCOTT J. HARTFIELD, Real Party in Interest.

                             No. 1 CA-SA 14-0066
                             FILED 05-27-2014

 Petition for Special Action from the Superior Court in Coconino County
                             No. DO 2008-0621
               The Honorable Elaine Fridlund-Horne, Judge

            JURISDICTION ACCEPTED; RELIEF GRANTED

                                     COUNSEL

Harris & Winger, Flagstaff
By Chad Joshua Winger
Counsel for Petitioner

Antol & Hance PC, Flagstaff
By Jonathon Kircher
Counsel for Real Party in Interest
          SAHLIN v. HON. FRIDLUND-HORNE/HARTFIELD
                      Decision of the Court

                           DECISION ORDER

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maurice Portley joined.

G O U L D, Judge:

¶1            Petitioner Danielle Sahlin (“Mother”) seeks special action
relief from the trial court’s order granting Respondent/Real Party in
Interest Scott J. Hartfield’s (“Father”) request for a hearing to modify
legal-decision making authority and parenting time. For the reasons
discussed below, we accept jurisdiction and grant relief.

¶2           Father and Mother have one child in common. The parties
were divorced on April 3, 2009. In the decree, Mother was awarded sole
legal and physical custody of the child, and Father was awarded
parenting time.

¶3            On October 8, 2013, Father filed a verified Petition to Modify
Legal-Decision Making; Petition for Modification of Child Support;
Motion for Contempt and Order to Show Cause (hereinafter “Petition to
Modify”). Mother filed an objection to Father’s petition, a detailed
affidavit in opposition, and a Request for Order Denying Legal Decision
Making Hearing on December 12, 2013. Mother also filed a Request for
Findings of Fact and Conclusions of Law re: Petitioner’s Request to Deny
Hearing on Modification Petition on December 17, 2013.

¶4           On March 5, 2014, the trial court granted Father’s request for
a hearing on his Petition to Modify. The court based its order on the
following finding of fact: “It has been over four (4) years since parenting
time has been reviewed in this matter.”

¶5             After the court issued its order, Mother filed her current
petition for special action relief on April 22, 2014.

¶6             In her petition, Mother argues that the trial court abused its
discretion by granting Father’s request for a custody modification hearing.
Mother contends that based on the sole finding by the trial court, Father
failed to establish “adequate cause” for the hearing as required by Arizona
Revised Statutes (“A.R.S.”) section 25-411(L).

                                     2
          SAHLIN v. HON. FRIDLUND-HORNE/HARTFIELD
                      Decision of the Court

¶7            We have jurisdiction because Mother has no adequate
remedy on appeal. Ariz. R. P. Spec. Act. 1(a). Arizona Revised Statute
§ 25-411 is a procedural statute; as a result, any errors in the preliminary
procedures required by the statute “must be addressed prior to a
resolution on the merits” at a custody modification hearing. In re Marriage
of Dorman, 198 Ariz. 298, 302, ¶ 11, 9 P.3d 329, 333 (App. 2000); see Richards
v. Superior Court, 22 Ariz.App. 66, 68, 523 P. 2d 117, 119 (1974) (granting
special action relief from denial of motion to quash based on failure to
comply with former § 25–339).

¶8             We review a trial court’s decision regarding the modification
of child custody for an abuse of discretion. Pridgeon v. Superior Court, 134
Ariz. 177, 179, 655 P. 2d 1, 3 (1982). Pursuant to § 25-411(L), a court “shall
deny” a petition to modify custody unless it determines there is adequate
cause to have a hearing. A.R.S. § 25-411(L). In determining whether there
is adequate cause, “the court must first determine whether there has been
a change in circumstances materially affecting the child’s welfare.”
Christopher K. v. Markaa S., 233 Ariz. 297, 300, ¶ 15, 311 P.3d 1110, 1113
(App. 2013); see Pridgeon, 134 Ariz. at 179, 655 P. 2d at 3. “If the court finds
such a change in circumstances, it must then determine whether a change
in custody would be in the child’s best interests.” Christopher K., 233 Ariz.
at 300, ¶ 15, 311 P.3d at 1113; see Pridgeon, 134 Ariz. at 179, 655 P. 2d at 3.

¶9             When a party requests findings of fact and conclusions of
law, the trial court is required to “set forth all facts necessary to resolve
disputed issues so that [the appellate court] may examine and
comprehend the basis for the trial court’s rulings.” Kelsey v. Kelsey, 186
Ariz. 49, 50-51, 918 P.2d 1067, 1068-69 (App. 1996).1 “If the trial court’s
basis for a conclusion is unclear, this Court may not affirm simply because
we may find some possible basis for that conclusion in the record.” Id. at
51. Rather, when Rule 52(a) has been invoked, “[i]t must be clear [from
the findings] how the court actually did arrive at its conclusions.” Id.
(internal citations omitted).

¶10           Mother argues that the trial court erred in basing its decision
solely on the fact that four years had passed since the issue of parenting
time had been reviewed. We agree.

1     Kelsey is based on a party’s request for findings of fact and
conclusions of law pursuant to Arizona Rule of Civil Procedure 52(a),
which is identical to Arizona Rule of Family Law Procedure 82(a). Kelsey,
186 Ariz. at 50-51, 918 P.2d at 1068-69.

                                       3
          SAHLIN v. HON. FRIDLUND-HORNE/HARTFIELD
                      Decision of the Court

¶11             The trial court’s finding, standing alone and without further
clarification, is insufficient to establish adequate cause under A.R.S. § 25-
411(L). The trial court’s order does not identify the specific change(s) in
the child’s circumstances that are materially affecting the child’s welfare
such that a modification hearing is warranted.

¶12            IT IS ORDERED accepting jurisdiction of Mother’s petition
for special action.

¶13          IT IS ORDERED granting relief by remanding this matter to
the trial court to make further findings regarding whether, based on
further review of the verified petition and exhibits thereto, as well as
Mother’s objections and affidavit, Father has alleged sufficient facts to
hold an evidentiary hearing pursuant to A.R.S. § 25-411(L).2

                                    :gsh

2     Based on our decision, in our discretion we do not reach the
remaining issues raised by Mother in her petition.

                                     4


35 F.3d 318
94 Ed. Law Rep. 124
Michael J. BAKALIS, Plaintiff-Appellee,v.Jenni GOLEMBESKI;  Mark R. Stephens;  Merrill Becker;  JamesDurkin, Defendants-Appellants.
No. 94-1093.
United States Court of Appeals,Seventh Circuit.
Argued April 22, 1994.Decided Sept. 14, 1994.Rehearing and Suggestion for RehearingEn Banc Denied Nov. 8, 1994.

William P. Rector, Alexis J. Rogoski (argued), Peterson & Ross, Chicago, IL, Theodore A. Boundas, Peterson & Ross, Springfield, IL, for plaintiff-appellee.
Gregory E. Rogus, Lori D. Isaacs, Martin A. Dolan, Segal, McCambridge, Singer & Mahoney, John B. Murphey (argued), Simone M. Boutet, Rosenthal, Murphey, Coblentz & Janega, Chicago, IL, for defendants-appellant.
Before POSNER, Chief Judge, COFFEY and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge.

1
Michael J. Bakalis, Ph.D., brought this action pursuant to 42 U.S.C. Sec. 1983 seeking damages from four individual members of the Board of Trustees of Community College District No. 54 ("the Board") for terminating him without due process of law.  The defendants moved for summary judgment on the merits and, alternatively, on the ground of qualified immunity.  The district court denied the defendants' motion and defendants brought this appeal pursuant to 28 U.S.C. Sec. 1291.  We now affirm.

2
* BACKGROUND

A. Facts

3
Dr. Bakalis was employed as President and Chief Executive Officer of Triton College and was terminated two years prior to the completion of his contract.  During his tenure, there were conflicts between Dr. Bakalis and members of the Board regarding the administration and management of Triton College.  Specifically, Dr. Bakalis maintains that defendant Golembeski engaged in a public campaign to discredit him, which included writing letters to newspapers and making public statements that he was not qualified for the position he held.  R. 25, Ex. 2 at 3.  Furthermore, the Board members, according to Dr. Bakalis, interfered unreasonably in the day-to-day administration of the college.1  Dr. Bakalis warned the Board and specifically the individually-named defendants that their actions threatened his ability to carry out his duties and responsibilities as President of Triton College.  Id. at 4.  He stated:

4
I made known to the BOARD OF TRUSTEES and these individuals that their actions and conduct were improper under my employment contract, the BOARD OF TRUSTEE[S'] own rules of ethics, and the Illinois Community College Board's and North Central Association's guidelines.  Further, I made known to the BOARD OF TRUSTEES and these individuals that in my view their actions and conduct had an improper purpose and were contrary to the best interests of TRITON COLLEGE.

5
Id.  As a result of these conflicts, defendant James Durkin requested that Dr. Bakalis resign as Triton College President and advised Dr. Bakalis that, in the view of some of the Board members, he was not carrying out the duties of his office in an effective manner.  At a closed session of the Board, another Board member, Mark Stephens, stated that the Board could offer Dr. Bakalis nine months' severance pay if he would resign.

6
At a special meeting, the Board voted to retain counsel who would investigate and recommend to the Board whether there was cause to terminate Dr. Bakalis' employment as President of Triton College.  Counsel concluded that there was sufficient evidence to terminate Dr. Bakalis for cause.  Therefore, on June 23, 1992, the Board enacted a resolution which provided for the Board "to seek to terminate Dr. Bakalis" pursuant to paragraph 10(B) of his employment contract.2  The reasons for his termination were listed in a document dated June 23, 1992, entitled "Notice of the Reasons for Seeking the Dismissal of Dr. Michael J. Bakalis from his Position as President of Triton College";  Dr. Bakalis received a copy the following day.  On the day these resolutions were adopted, the Board also adopted a Resolution which provided for procedures to terminate Dr. Bakalis.  According to these procedures Dr. Bakalis was allowed a pre-termination and a post-termination hearing.  The latter would be conducted by a committee of three Board members appointed by the Chair and would be convened at Dr. Bakalis' request in the event of his termination.  Ms. Golembeski was the Chair of the Board during this time.

7
On July 7, 1992, prior to voting to terminate Dr. Bakalis, the Board held a hearing which Dr. Bakalis attended with his attorney.  During the hearing, Dr. Bakalis was given the opportunity to respond to the Notice of Reasons.  After this meeting, the Board voted to dismiss Dr. Bakalis by a vote of 4-3;  the four members of the Board voting to dismiss Dr. Bakalis are the individually-named defendants.

8
Dr. Bakalis then requested a post-termination hearing.  Three members of the Board, two of whom voted for Dr. Bakalis' dismissal, were appointed to conduct the hearing.  The hearing was to be a full evidentiary hearing.  During one of the post-termination hearing sessions, Dr. Bakalis, through his counsel, announced that he was withdrawing from the hearing.  After this incident, the hearing committee met twice;  Dr. Bakalis did not appear on either occasion.  The Committee then notified Dr. Bakalis that his request for a post-termination hearing would be considered withdrawn unless it was notified within fourteen days.  The Committee received no notice and thus recommended to the full Board that his termination be considered final.

B. District Court Proceedings

9
In this action, brought pursuant to 42 U.S.C. Sec. 1983, Dr. Bakalis alleged that the Board had violated his right to due process by terminating him without a fair hearing.3  The members of the Board moved for summary judgment on the federal cause of action on the grounds that, as a matter of law, they had met the requirements of due process, and alternatively that they were entitled to qualified immunity.  The district court denied this motion.  It stated that "[p]laintiff cannot be deprived of his property right in continued employment without due process of law, which includes notice of the charges against him and an opportunity to respond to them before an impartial tribunal."   R. 28 at 6-7.  Additionally, it found that there were questions of material fact regarding the Board members' impartiality.  Id. at 7.  Consequently, it concluded, summary judgment on the merits was inappropriate.

10
Addressing the Board members' qualified immunity argument, the district court followed the traditional qualified immunity standard set forth in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).  The court determined that, at the time the acts in question took place, "it was clearly established by the decisions of both the Supreme Court and the Seventh Circuit that due process required that plaintiff's termination hearing be heard by an impartial tribunal."   R. 28 at 9.  The court then determined that "a genuine issue of fact [existed] regarding whether the individual defendants knew or should have known that due process required a fair and impartial tribunal, especially in light of plaintiff's and plaintiff's counsel's repeated attempts to inform the individual defendants of this requirement at plaintiff's termination hearing."   Id. at 10.  For this reason, concluded the district court, the defendants were not entitled to qualified immunity.  The members of the Board now appeal.

II
ANALYSIS

11
In this appeal, the only issue properly before the court is whether the district court erred in its determination that the defendants were not entitled to the defense of qualified immunity.  The district court addressed this issue only briefly.4  However, when its opinion, including that portion that deals with the denial of summary judgment on the merits, is read as a whole, there are sufficient conclusions of law to permit us to proceed without remanding to the district court.  In any case, the issue before us--whether the defendants are entitled to the defense of qualified immunity--is a matter of law and we may affirm the judgment of the district court on any ground that is fairly supported by the record.

12
The members of the Board allege several errors in the district court's decision.  First, they maintain that the district court applied the wrong standard in determining the qualified immunity question.  The district court, argue the defendants, conducted the qualified immunity inquiry at too general a level;  it should have asked "whether, under the specific facts involved in this case, it should have been apparent to the individual defendants that the action they took" deprived Dr. Bakalis of his right to an impartial decisionmaker.  Appellants' Br. at 17.  Second, they contend that the procedures used to terminate Dr. Bakalis did not clearly violate any right of Dr. Bakalis to an impartial decisionmaker.5  Finally, the individual defendants contend that, under the existing law at the time, it was not clear that their prior disputes with Dr. Bakalis rendered them impartial.  We review the denial of qualified immunity de novo.  Rakovich v. Wade, 850 F.2d 1180, 1204 (7th Cir.)  (en banc), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988).

13
The standard for a grant of qualified immunity is well established:  "[G]overnmental officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."  Harlow v. Fitzgerald, 57 U.S. at 818, 102 S.Ct. at 2738.   However, a plaintiff may not escape the doctrine of qualified immunity by alleging violation of a clearly established, but very broad, constitutional right.

14
[O]ur cases establish that the right the official is alleged to have violated must have been "clearly established" in a more particularized, hence more relevant, sense:  The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.

15
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).  Our own caselaw has elaborated on this need for sufficient specificity.  For instance, in Colaizzi v. Walker, 812 F.2d 304, 307-08 (7th Cir.1987), we explained:

16
[The Harlow qualified immunity] test would have little bite if a right "clearly established" at any level of generality could survive it.  "The words 'clearly established ... constitutional rights' may not be used to read the defense of immunity out of federal tort law by the facile expedient of stating constitutional rights in the most general possible terms, so that anyone who prevails on the merits of a claim based on (for example) the First Amendment's free exercise of religion clause, however novel that claim is, can defeat the defense of immunity simply by pointing out that the right to the free exercise of one's religion has long been a clearly established constitutional right.  The right must be sufficiently particularized to put potential defendants on notice that their conduct probably is unlawful."

17
....

18
Our conclusion is that the test for immunity should be whether the law was clear in relation to the specific facts confronting the public official when he acted.

19
Id. (quoting Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir.1986)).  If the protection afforded government officials were not cast in such terms, "[p]laintiffs would be able to convert the rule of qualified immunity ... into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights."  Anderson, 483 U.S. at 639, 107 S.Ct. at 3039.   However, "[t]his is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful;  but it is to say that in light of pre-existing law the unlawfulness must be apparent."  Id. at 640, 107 S.Ct. at 3039.   As the court said in Rakovich:

20
We caution that just as the right allegedly violated should not be characterized or defined so generally that invariably guiding law is found to show the right was clearly established, the right should not be defined so intricately that invariably guiding law never can be found.  A practical appraisal shows that the process of defining the factual situations from disparate types of cases results in some flexibility within the limits of the objective inquiry and within the limits of Anderson and its progeny.  Courts are able to carefully consider the proper characterization.  It need only be kept in mind that the characterization used must be sufficiently particularized to enable the district court to determine whether the officers were on notice that their actions violated clearly established law.

21
850 F.2d at 1211.   We look therefore to the law in existence at the time to evaluate whether the actions taken by the defendants violated Dr. Bakalis' right to due process of law.

22
At the heart of due process is the right to a fair hearing conducted by an impartial tribunal.  "Not only is a biased decisionmaker constitutionally unacceptable but 'our system of law has always endeavored to prevent even the probability of unfairness.' "  Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975) (citations omitted).  At issue in Withrow were the actions of a medical examining Board which first had conducted an investigative hearing to determine whether a doctor had engaged in certain proscribed acts.  After this hearing, the same Board had conducted a contested hearing to determine whether the doctor's license to practice medicine should have been revoked.  The Court held:

23
The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry.  It must overcome a presumption of honesty and integrity in those serving as adjudicators;  and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is adequately implemented.

24
Id.  The Court distinguished the situation before it from situations in which actual bias may arise:

25
In pursuit of this end, various situations have been identified in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.  Among these cases are those in which the adjudicator has a pecuniary interest in the outcome and in which he has been the target of personal abuse or criticism from the party before him.

26
Id.

27
The Supreme Court also has spoken to the requirement of an impartial tribunal in Hortonville Joint School District # 1 v. Hortonville Education Association, 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976).  In Hortonville, the Supreme Court determined that a board of education could constitutionally adjudicate the fate of teachers' employment when it had participated in contract negotiations with those teachers.  Id. at 492, 96 S.Ct. at 2314.   The Court characterized the issue accordingly:  "The sole issue in this case is whether the Due Process Clause of the Fourteenth Amendment prohibits this School Board from making the decision to dismiss teachers admittedly engaged in a strike and persistently refusing to return to their duties."  Id. at 488, 96 S.Ct. at 2312.   The Court held that due process did not foreclose the Board from making this decision.  However, the Court made clear that it was resting its decision on the factual determinations of the Wisconsin courts.  The state courts had not found

28
that the Board members had the kind of personal or financial stake in the decision that might create a conflict of interest, and there is nothing in the record to support charges of personal animosity.  The Wisconsin Supreme Court was careful "not to suggest ... that the board members were anything but dedicated public servants, trying to provide the district with quality education ... within its limited budget."

29
Id. at 491-92, 96 S.Ct. at 2314 (citations and footnotes omitted).6

30
The situations presented in Withrow and in Hortonville stand in stark contrast to the type of personal bias that requires recusal of the adjudicator as a matter of due process.  For instance, in Taylor v. Hayes, 418 U.S. 488, 501-02, 94 S.Ct. 2697, 2704-05, 41 L.Ed.2d 897 (1974), the Supreme Court held that it violated the Due Process Clause for a judge who had "become embroiled in a running controversy" throughout the trial to preside over contempt proceedings based on that conduct.  The Court reached the same conclusion in Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971).  There the Court noted that "a judge, vilified as was this ... judge, necessarily becomes embroiled in a running, bitter controversy.  No one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication."  Id. at 465, 91 S.Ct. at 505.   On the other hand, a "judge cannot be driven out of a case."  Id. at 463, 91 S.Ct. at 504.  "We cannot assume that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to their authority or with highly charged arguments about the soundness of their decisions."  Ungar v. Sarafite, 376 U.S. 575, 584, 84 S.Ct. 841, 847, 11 L.Ed.2d 921 (1964).

31
This court also has had the opportunity to speak to the requirements of an impartial tribunal when a public employee is terminated.  Most recently, in Swanson v. Village of Lake in the Hills, 962 F.2d 602 (7th Cir.1992), a dismissed police officer alleged that the police commissioner could not judge fairly his disciplinary action because he had appealed to a state court a prior disciplinary ruling.  This court held that the appeal of a prior determination alone was not sufficient to overcome the " 'presumption of honesty and integrity' " afforded administrative decisionmaking.  Id. at 605 (citations omitted).  Similarly, in Panozzo v. Rhoads, 905 F.2d 135 (7th Cir.1990), we reiterated that partiality does not arise simply because a decisionmaker, in that case the chief of police, is involved in the investigation and adjudication of disputes.  We stated:

32
[P]laintiff must overcome the presumption that the decision-maker is "[a person] of conscience and intellectual discipline and capable of judging a particular controversy fairly on the basis of its own circumstances."   Panozzo has not offered any evidence that Chief Rhoads failed to meet this standard;  therefore, the argument must fail.

33
Id. at 140 (quoting Withrow v. Larkin, 421 U.S. at 55, 95 S.Ct. at 1468-69).   Finally, in Hostrop v. Board of Junior College District No. 515, 523 F.2d 569 (7th Cir.1975), cert. denied, 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976), a former president of a public junior college brought an action against the Board for wrongful termination.  This court held that the defendants had violated the president's rights when they gave him a hearing only after terminating and replacing him.

34
There can be no real dispute that before the special session of the board on July 23, 1970, when plaintiff was to be afforded a hearing, the board had already decided to terminate him, and had in fact made a commitment to another person to hire that person as interim president.  The board having prejudged the matter of plaintiff's termination ... and being no longer therefore "a tribunal possessing apparent impartiality," ... plaintiff did not waive his right to a hearing by absenting himself from that meeting.

35
Id. at 575-76 (citations omitted).

36
Our colleagues in the Tenth Circuit have confronted a situation presenting the due process issue in a scenario very similar to the one before us.  In Staton v. Mayes, 552 F.2d 908 (10th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977), that court determined that the plaintiff, a former school superintendent, had been deprived of due process when his contract was terminated by the school board.  Three of the five-member board had made public or private statements prior to the termination hearing that the plaintiff had to be removed.  The Tenth Circuit distinguished its case from that presented in Hortonville or in Withrow:

37
These were not mere statements on a policy issue related to the dispute, leaving the decision maker capable of judging a particular controversy fairly on the basis of its own circumstances.  Hortonville, supra, 426 U.S. at 492-93, 96 S.Ct. at 2314.   Nor was this simply a case of the instigation of charges and a statement of them during an investigatory phase by the body that will later decide the merits of the charges.  E.g., Withrow v. Larkin, 421 U.S. 35, 52-53, 95 S.Ct. 1456, 1467-68, 43 L.Ed.2d 712.

38
Instead this case involves statements on the merits by those who must make factual determinations on contested fact issues of alleged incompetence and willful neglect of duty, where the fact finding is critical....  And the ruling here concerned factual decisions on alleged incompetence and willful neglect of duty--issues which were both hotly contested and of critical effect on the liberty and property interests of the plaintiff.

39
....

40
We are convinced that these established circumstances left no room for a determination that there was a decision by a fair tribunal, with the appearance of fairness, in view of the totality of these circumstances.

Id. at 914-15 (citations omitted).7

41
Thus, according to Supreme Court and Court of Appeals precedent, due process requires a hearing by an impartial tribunal.  Partiality will not be presumed simply because the same tribunal investigates and adjudicates the employment decision.  Furthermore, there is a presumption that those making decisions affecting the public are doing so in the public interest.  However, bias and partiality become very real problems if the tribunal has been the target of criticism or abuse from those coming before it.  Certainly, a body that has prejudged the outcome cannot render a decision that comports with due process.

42
We now turn to the case before us.  As the above discussion of the caselaw establishes, we think it was clear that at the time of the events in question a person who had prejudged the case could not sit in judgment of Dr. Bakalis on the issue of his continuance in office.  The district court was of the view that the record raised a genuine issue of triable fact as to whether certain members of the Board had prejudged Dr. Bakalis and, consequently, had not given him a fair and impartial hearing.  When read in a light most favorable to Dr. Bakalis, the record reflects the sort of "running controversy" between the Board members and Dr. Bakalis that precluded impartial adjudication.  Dr. Bakalis had confronted the individual members of the Board concerning their actions.  He had told them that their conduct not only was harming the college, but also was unethical.  Thus, the members of the Board had been the subject of the sort of personal criticism that, according to Withrow, increased the possibility of bias.  The individual Board members had not been passive recipients of this indictment.  Some had asked Dr. Bakalis to resign prior to the hearing in which they were to determine whether Dr. Bakalis should be dismissed.  At least one Board member also had made public statements questioning Dr. Bakalis' qualifications to hold the position of President.  Thus, there is evidence that members of the Board had prejudged Dr. Bakalis' fate prior to the hearing;  this prejudgment, if it existed, rendered the hearing violative of due process.

43
Contrary to the defendants' contentions, Dr. Bakalis' allegations do not mirror those of the plaintiffs in Swanson or Rhoads.   In those cases, no evidence had been presented that the decisionmakers had prejudged the case.  We believe that the caselaw is clear that the prejudgment alleged by Dr. Bakalis in this summary judgment record would have precluded the Board from fairly adjudicating Dr. Bakalis' employment and that a reasonable Board member would have understood that such prejudgment precluded sitting in judgment of the case.8  Consequently, on the record before us, we cannot say that the Board members are entitled to qualified immunity.  If credited by a trier of fact, the evidence as presented by the plaintiff would justify a conclusion that the Board members had prejudged the matter and should have known that they could not act as impartial adjudicators of Dr. Bakalis.

44
Qualified immunity is an individual defense available to each individual defendant in his individual capacity.9  At this stage of the proceeding and on the record before us, we must conclude that there is a genuine issue of triable fact with respect to each of the named individual defendants that precludes the defense of qualified immunity.  We must note, however, that the evidence with respect to each defendant is quite different and further proceedings may well establish that the same decision ought not to be rendered with respect to each.  We only hold that, at this point, the record contains a genuine issue of triable fact that precludes summary judgment on the ground of qualified immunity.  We caution the district court that, in further proceedings, including any motion for judgment as a matter of law filed by any party,10 individual liability must be predicated on a finding that the individual member had in fact prejudged the case.11

Conclusion

45
For the foregoing reasons, the judgment of the district court denying the motion to dismiss on the ground of qualified immunity is affirmed.

46
AFFIRMED.

1
 Dr. Bakalis lists, by way of example, several instances of interference, including:  defendants Stephens and Durkin unilaterally rewriting the college mid-manager policy manuals;  defendant Golembeski striking personnel recommendations without submission to the entire Board;  the Board, and specifically defendants Stephens and Golembeski, harassing Dr. Bakalis regarding the hiring of a special counsel and subsequently threatening not to pay the counsel properly hired.  R.25, Ex. 2 at 4-5

2
 Paragraph 10(B) of his employment contract provided that Dr. Bakalis could be discharged by the Board for cause and provided:
If the Board seeks to terminate Dr. Bakalis for cause it shall first provide Dr. Bakalis with full notice of the reasons for his termination and an opportunity to respond to those reasons at a hearing.  Such hearing shall be before the Board or, if the Board so determines, before a committee of the Board.  If the hearing is conducted by the Committee, the committee will report the findings to the full Board.  The full Board will then accept, reject or amend the committee's recommendation as to whether just cause exists to terminate this Agreement.  If the full Board then determines to terminate this Agreement the Board shall specify the effective date of termination.

3
 Dr. Bakalis also alleged violations of state law;  specifically, he charged the defendants with breach of the covenant of good faith and fair dealing, with tortious interference with contractual relations, and with defamation.  R.1

4
 Dr. Bakalis contends, both in his brief and in his separate motion to dismiss, that this court does not have jurisdiction over this appeal because it does not meet the separability requirement of the collateral order doctrine.  Essentially, Dr. Bakalis argues that the law is clear with regard to the requirement of an impartial tribunal and that the only dispute between the parties is a factual one:  whether the Board was a biased tribunal.  Dr. Bakalis states:
The Individual Defendants' jurisdictional statement does not argue there was legal uncertainty respecting the requirement of an impartial tribunal.  Indeed, the argument cannot be made.  The Individual Defendants cannot reasonably suggest [that] going through motions of pre-termination and post-termination hearings was sufficient to satisfy due process if in fact they had prejudged the case.  The District Court found Bakalis satisfied his burden of offering the minimum quantum of proof to defeat the initial motion for summary judgment.
Appellee's Motion to Dismiss Appeal at 3 (citations omitted).  Because the law is clear, he maintains, an interlocutory appeal is inappropriate.  See Elliott v. Thomas, 937 F.2d 338, 341 (7th Cir.1991) ("When rules of law clearly establish public officials' duty, the immunity defense is unavailable.  So, too, the interlocutory appeal to vindicate the right not to be tried is unavailable when there is no legal uncertainty;  there is no separate 'right not to be tried' on the question whether the defendants did the deeds alleged;  that is precisely the question for trial."), cert. denied, --- U.S. ----, 112 S.Ct. 973, 117 L.Ed.2d 138 (1992).  However, the defendants claim that there is uncertainty in the law.  They argue:  "Under the existing law at the time of Dr. Bakalis's termination, it would not have been apparent to the Individual Defendants that because of their disputes with Dr. Bakalis over the management and operation of Triton College their participation in the proceedings relating to Dr. Bakalis's termination would deprive Dr. Bakalis of an impartial decision-maker."   Appellants' Br. at 26.  The question which we must address is whether the constitutional right--in the case before us the right to have an employment termination determined by an impartial tribunal--was defined in a sufficiently detailed manner to apprise the defendants that their actions were unconstitutional.  Whether a constitutional right is clearly established in a sufficiently particularized manner is a question of law properly before this court.  See Sherman v. Four County Counseling Ctr., 987 F.2d 397, 401 (7th Cir.1993).

5
 The Board maintains that the procedures met the standards set forth in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), and were therefore constitutional.  However, Loudermill does nothing to answer the contentions of Dr. Bakalis.  In Loudermill, the Supreme Court outlined the procedural requirements for terminating a public employee.  A pre-termination hearing, held the Court, need not resolve definitively all issues surrounding the discharge.  When a complete post-termination hearing is provided, the pre-termination hearing need only "be an initial check against mistaken decisions--essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action."  Id. at 545-46, 105 S.Ct. at 1495.   However, Dr. Bakalis does not take issue with the procedures per se--only the personal bias and partiality of those participating in the procedures

6
 The question at issue in our case--the motivations and potential bias of the Board members--had already been adjudicated in the Wisconsin courts in Hortonville and was not before the Supreme Court

7
 The defendants maintain that the caselaw on which the district court relied is, as a matter of law, insufficient to apprise them that they were violating Dr. Bakalis' constitutional rights.  However, our decision does not rely only upon the caselaw cited by the district court, but on Supreme Court and circuit precedent.  Furthermore, "the rulings in other circuits are instructive on what the law is as to constitutionally protected rights."  Spreen v. Brey, 961 F.2d 109, 113 (7th Cir.1992)

8
 The Board members argue that these allegations are inadequate, as a matter of law, to create a genuine issue of material fact precluding summary judgment because they are based on a verified complaint.  This court, the defendants maintain, has rejected a verified complaint, made on personal knowledge, as sufficient to preclude summary judgment.  See Price v. Rochford, 947 F.2d 829 (7th Cir.1991).  We find this argument unpersuasive for three reasons.  First, this argument was made only in a footnote in the opening brief and was not developed fully until the reply brief.  Consequently, this argument is deemed waived.  See Egert v. Connecticut Gen. Life Ins. Co., 900 F.2d 1032, 1035 (7th Cir.1990).  Second, with regard to the statement challenged in the opening brief, it is not at all clear to us that the statements of defendant Golembeski would be considered hearsay and therefore inadmissible.  The statements are not offered for the truth of the matter asserted, i.e., Dr. Bakalis' qualifications;  instead, they are offered to show the motivation of the speaker with regard to the actions taken.  Finally, even if this statement were not admissible, there is sufficient evidence of bias in the portions of Dr. Bakalis' affidavit on which he clearly is competent to testify

9
 See Hicks v. City of Watonga, Okla., 942 F.2d 737, 747 (10th Cir.1991) (holding that liability for acting as a biased factfinder must be assessed on an individual basis)

10
 See Armco Steel Corp. v. Realty Inv. Co., 273 F.2d 483, 484-85 (8th Cir.1960) (noting that denial of summary judgment does not preclude re-evaluation on a motion for judgment as a matter of law when "both parties have had an opportunity to adduce all relevant, available evidence so that the trial court is no longer uncertain as to the circumstances of the case");  accord Voutour v. Vitale, 761 F.2d 812, 822 (1st Cir.1985) (per curiam) (applying the principle in a civil rights context), cert. denied, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986);  see also 9 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure Sec. 2532 (1971) (discussing the principle and quoting Armco Steel Corp., 273 F.2d at 485)

11
 The board members contend that, even if the law was clearly established that their actions rendered them biased, the rule of necessity required them to adjudicate Dr. Bakalis' employment.  They claim that they are the only body empowered under Illinois law to decide the fate of Dr. Bakalis.  Consequently, even if biased, the Board claims that they had a statutory obligation to make the employment determination.  In the district court, this argument was made only with respect to the merits of the action and not with respect to the defense of qualified immunity.  Indeed, it was not until the reply brief in this court that the defendants suggested that the choice between recusal on account of bias and the need to adjudicate the matter presented a legal ambiguity that afforded them the defense of qualified immunity;  consequently, we have no occasion to address this argument on the merits.  Cf. Egert, 900 F.2d at 1035 (stating that arguments not raised until the reply brief are deemed waived).  In any event, we do not believe that the record before us would support a defense based on the rule of necessity even if the matter were properly before us.  It appears that, under the law of Illinois, an administrative body can invoke the rule of necessity when, as a corporate body, it has a conflict of interest and the nontransferable duty to adjudicate the matter at hand.  See E & E Hauling, Inc. v. Pollution Control Bd., 116 Ill.App.3d 586, 71 Ill.Dec. 587, 451 N.E.2d 555, 567-68 (1983), aff'd on other grounds, 107 Ill.2d 33, 89 Ill.Dec. 821, 481 N.E.2d 664 (1985).  Here, however, each member defendant is accused of a personal bias and, until a sufficient number of members of the Board recused themselves, there was no occasion to invoke the rule of necessity.  The rule does not become applicable until there are sufficient recusals to render the body without a quorum.  See Board of Educ. of Community Consol. High Sch. Dist. No. 230 v. Illinois Educ. Labor Relations Bd., 165 Ill.App.3d 41, 116 Ill.Dec. 91, 518 N.E.2d 713, 717 (1987)


986 A.2d 1263 (2009)
COM.
v.
RODRIGUEZ, Z.
No. 2092 MDA 2008.
Superior Court of Pennsylvania.
September 9, 2009.
Affirmed.


     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-907V
                                         UNPUBLISHED

    AUDREY HENNING,                                           Chief Special Master Corcoran

                         Petitioner,                          Filed: February 21, 2020
    v.

    SECRETARY OF HEALTH AND                                   Special Processing Unit (SPU); Joint
    HUMAN SERVICES,                                           Stipulation on Damages; Tetanus
                                                              Diphtheria acellular Pertussis (Tdap)
                        Respondent.                           Vaccine; Shoulder Injury Related to
                                                              Vaccine Administration (SIRVA)

Phyllis Widman, Jacobs & Barbone, Atlantic City, NJ, for Petitioner.

Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent.

                               DECISION ON JOINT STIPULATION1

        On June 25, 2018, Audrey Henning filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that the Tetanus Diphtheria acellular Pertussis (Tdap)
vaccine she received on October 14, 2016 caused left shoulder SIRVA. Petition at 1;
Stipulation, filed February 21, 2020, at ¶ 4. Petitioner further alleges that the vaccine
was administered in the United States, she sustained the injury within the time period
set forth in the Vaccine Injury Table (Table), that she experienced the residual effects of
her injury for more than six months after vaccine administration, and that there has been
no prior award or settlement of a civil action for damages on her behalf as a result of her
condition. Petition at 1-2; Stipulation at ¶¶ 3-5. “Respondent denies that Petitioner
sustained a SIRVA Table injury; denies that the vaccine caused petitioner’s alleged

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the
E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the decision will be available to anyone with access
to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to
redact medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such
material from public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
shoulder injury, or any other injury; and denies that her current condition is a sequelae
of a vaccine-related injury. ” Stipulation at ¶ 6.

        Nevertheless, on February 21, 2020, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. I find the
stipulation reasonable and adopt it as my decision awarding damages, on the terms set
forth therein.

     Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:

        A lump sum of $35,000.00 in the form of a check payable to Petitioner.
        Stipulation at ¶ 8. This amount represents compensation for all items of
        damages that would be available under § 15(a). Id.

       I approve the requested amount for Petitioner’s compensation. In the absence of
a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed
to enter judgment in accordance with this decision.3

IT IS SO ORDERED.

                                          s/Brian H. Corcoran
                                          Brian H. Corcoran
                                          Chief Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.

                                                      2
               IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                         OFFICE OF SPECIAL MASTERS

                                                      )
AUDREY HENNING,                                       )
                                                      )
                       Petitioner,                    )
                                                      )       No. 18-907V
V.                                                    )       Chief Special Master Corcoran
                                                      )       ECF
SECRETARY OF HEALTH AND                               )
HUMAN SERVICES,                                       )
                                                      )
                       Respondent.                    )   .

                                         STIPULATION

       The parties hereby stipulate to the following matters:

       l. Audrey Henning, petitioner, filed a petition for vaccine compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (the "Vaccine

Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt

of the Tetanus-Diphtheria-acellular Pertussis ("Tdap") vaccine, which vaccine is contained in the

Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a).

       2. Petitioner received the Tdap vaccine on or about October 14, 2016.

       3. The vaccination was administered within the United States.

       4. Petitioner alleges that she sustained a Shoulder Injury Related to Vaccine

Administration ("SIRVA") following her Tdap vaccine, within the time period set forth in the

Table, or in the alternative, that her alleged shoulder injuries were caused by the vaccine. She

further alleges that she experienced the residual effects of her alleged injuries for more than six

months after vaccine administration.
       5. Petitioner represents that there has been no prior award or settlement of a civil action

for damages on her behalf as a result of her condition.

       6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the

vaccine caused petitioner's alleged shoulder injuries, or any other injury; and denies that her

current condition is a sequelae of a vaccine-related injury.

       7. Maintaining their above-stated positions, the parties nevertheless now agree that the

issues between them shall be settled and that a decision should be entered awarding the

compensation described in paragraph 8 of this Stipulation.

       8. As soon as practicable after an entry of judgment reflecting a decision consistent with

the terms of this Stipulation, and after petitioner has filed an election to receive compensation

pursuant to 42 U.S.C. § 300aa-2l(a)(l ), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

       A lump sum of $35,000.00 in the form of a check payable to petitioner. This amount
       represents compensation for all damages that would be available under 42 U.S.C.
       §300aa- l 5(a).

        9. As soon as practicable after the entry of judgment on entitlement in this case, and

after petitioner has filed both a proper and timely election to receive compensation pursuant to

42 U.S.C. § 300aa-21 (a)(l ), and an application, the parties will submit to further proceedings

before the special master to award reasonable attorneys' fees and costs incurred in proceeding

upon this petition.

        10. Petitioner and her attorney represent that compensation to be provided pursuant to

this Stipulation is not for any items or services for which the Program is not primarily liable

under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be

expected to be made under any State compensation programs, insurance policies, Federal or

                                                  2
State health benefits progr~s (other than Title XIX of the Social Security Act (42 U.S.C. §

1396 et seq.)), or by entities that provide health services on a pre-paid basis.

        11. Payments made pursuant to paragraphs 8 and 9 of this Stipulation will be made in

accordance with 42 U .S.C. § 300aa-l 5(i), subject to the availability of sufficient statutory funds.

        12. The parties and their attorneys further agree and stipulate that, except for any award

for attorneys' fees and litigation costs, and past unreimbursable expenses, the money provided

pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a

strict construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C.

§ 300aa-l 5(g) and (h).

        13. In return for the payment described in paragraph 8 and any amount awarded pursuant

to paragraph 9, petitioner, in her individual capacity and on behalf of her heirs, executors,

administrators, successors or assigns, does forever irrevocably and unconditionally release,

acquit and discharge the United States and the Secretary of Health and Human Services from any

and all actions or causes of action (including agreements, judgments, claims, damages, loss of

services, expenses and all demands of whatever kind or nature) that have been brought, could

have been brought, or could be timely brought in the Court of Federal Claims, under the National

Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any

way growing out of, any and all known or unknown, suspected or unsuspected personal injuries

to or death of petitioner resulting from, or alleged to have resulted from, the Tdap vaccination

administered on October 14, 2016, as alleged by petitioner in a petition for vaccine compensation

filed on or about June 25, 2018, in the United States Court of Federal Claims as petition No. l 8-

907V.
       14. If petitioner should die prior to entry of judgment, this agreement shall be voidable

upon proper notice to the Court on behalf of either or both of the parties.

       15. If the special master fails to issue a decision in complete conformity with the tenns

of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a

decision that is in complete conformity with the terms of this Stipulation, then the parties'

settlement and this Stipulation shall be voidable at the sole discretion of either party.

        16. This Stipulation expresses a full and complete negotiated settlement of liabi lity and

damages claimed under the National Childhood Vaccine Injury ,Act of 1986, as amended, except

as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the

parties hereto to make any payment or to do any act or thing other than is herein expressly stated

and clearly agreed to. The parties further agree and understand that the award described in this

Stipulation may reflect a compromise of the parties' respective positions as to liability and/or

amount of damages, and further, that a change in the nature of the injury or condition or in the

items of compensation sought, is not grounds to modify or revise this agreement.

        17. This Stipulation shall not be construed as an admission by the United States or the

Secretary of Health and Human Services that Tdap vaccine caused petitioner's alleged SIRVA,

any other injury, or her current disabilities.

        18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's

heirs, executors, administrators, successors, and/or assigns.

                                      END OF STIPULATION

I

I

I

                                                   4
                                                                               '·
. l

                                     .   ,,..
      Rcsp~tfully submitted,
                                                .'!-
                                                       '   .

      ·PETI.TIONER:                                                            :;i;,

      ATl'ORNEY OF RECORD FOR .                                    AUfflORIZED REPRESENTATIVE
      PETITIONER:                                                  OF THE ATTORNEY GENERAL:

      ~&-YLLlS WIDMAN;·ESQ.                                                    EB. REEVES
      JACOBS & BARBONE, P.A.
      1125 Pacific Avenue
      Atlantic City, NJ 08401                                      Civil Division
      Tel: (732) 829-3416                                          U.S. Department of Justice
                                                                   P. 0. Box 146
                                                                   Benjamin Franklin Station
                                                                   Washington, D.C. 20044-0146

      AUTHORIZED REPRESENTATIVE OF                                 ATTORNEY OF RECORD FOR
      TIIE SECRETARY OF HEALTH AND                                 RESPONDENT:
      HUMAN SERVICES:

                                                                   CLAUD~•
      TAMARA OVERBY
      Acting Director, Division of                                 Senior Trial Attorney
      Injury Compensation Programs (DICP)                          Torts Branch. Civil Division
      Healthcare Systems Bureau                                    U.S. Department ofJustice
      U.S. Department of Health                                    P.O. Box 146
      and Human Servi'ces                                          Beajamin Franklin Station
      5600 Fishers Lane                                            Washington, D.C. 20044-0146
      Parklawn·Building, Stop-08N 146B                             Tel: (202) 919-6599
      Rockville, MD 20857

      Dated:   2. - 2.. I -1,_,020

                                                               5


842 F.2d 1139
108 Lab.Cas.  P 55,872, 3 Indiv.Empl.Rts.Cas.  192
W. Gale WILLIS, dba Willis Sales Co., Plaintiff-Appellant,v.CHAMPLAIN CABLE CORPORATION, Defendant-Appellee.
No. 85-4175.
United States Court of Appeals,Ninth Circuit.
Argued July 7, 1986.Certified to Washington StateSupreme Court Oct. 15, 1986.Resubmitted March 4, 1988.Decided March 28, 1988.

Sheryl K. Peterson, James J. Ragen, Hillis, Cairncross, Clark & Martin, Seattle, Wash., for plaintiff-appellant.
Pamela Grace Rapp, Gary J. Strauss and Barbara L. Holland, Garvey, Schubert, Adams & Barer, Seattle, Wash., for defendant-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before TANG, PREGERSON and ALARCON, Circuit Judges.
PER CURIAM:

1
Plaintiff Willis appeals from the district court's grant of summary judgment in favor of defendant Champlain Cable Corporation (Champlain).  Willis, employed as a manufacturer's representative by Champlain's predecessor, Haveg Industries, Inc., was terminated under the terms of an employment contract in September of 1976.  It was clear under the contract that Willis was entitled to commissions on sales accepted up to and including the effective date of his termination.  This claim, however, pertained to commissions on sales executed after his termination.  He contends he was the procuring cause of those sales and that he was terminated in bad faith.  Willis argues that a sales agent whose agency contract is terminated in bad faith may recover commissions on agent procured post-termination sales even if that recovery contradicts the terms of the employment contract.

2
Resolution of this case turned upon issues of Washington law as to which there were substantial grounds for difference of opinion.  We therefore certified the question whether Washington state law implied a covenant of good faith and fair dealing that prohibits the principal in a sales agent's contract from terminating the agent solely for the purpose of depriving the agent of commissions, assuming the commissions have been earned.  Wash.Rev.Code Ann. Sec. 2.60.030 and Wash.R.App.P. 16.16.  The Washington Supreme Court stated the question and its answer as follows:

3
If an employer, acting in accordance with the terms of the employment contract, terminates an employee's employment, does a cause of action nevertheless lie against the employer for recovery of sales commissions if the employee is able to establish that the employer was motivated by "bad faith"?

4
* * *

5
We answer this question in the negative.

6
Willis v. Champlain Cable Corp.  (1988), 109 Wash.2d 747, 748 P.2d 621, 624.  The Washington court declined to apply the covenant of good faith and fair dealing to alter the express contract provisions.  Moreover, the court held that under Washington law neither the Restatement (Second) of Agency Sec. 454 nor the procuring cause rule applies where, as here, a written agency contract unambiguously provides for termination without cause and limits commissions upon termination.   Id. at 625.

7
Accordingly, the judgment of the district court is hereby AFFIRMED.  Each party shall bear its own costs on appeal.

8
AFFIRMED.


225 F.2d 482
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, LOCAL 618.
No. 15390.
United States Court of Appeals Eighth Circuit.
August 9, 1955.

On Petition for Enforcement of Order of National Labor Relations Board.
Marcell Mallett-Prevost, Asst. General Counsel, National Labor Relations Board, Washington, D.C., for petitioner.

1
Order of National Labor Relations Board enforced, on petition for enforcement and stipulation filed with Board.