16 B.R. 810 (1982)
In re Lavoyd Wayne HARDIN, Debtor.
Joan Murle HARDIN, Plaintiff,
v.
Lavoyd Wayne "Bill" HARDIN, Defendant.
and
In re Kenneth McINTYRE and Debra McIntyre, Debtors.
Morris G. COX, Plaintiff,
v.
Kenneth McINTYRE and Debra McIntyre, Defendants.
Bankruptcy Nos. 480-00513, 481-00582, Adv. Nos. 481-0070, 481-0300.
United States Bankruptcy Court, N.D. Texas, Fort Worth Division.
January 27, 1982.
St. Clair Newbern, III, Fort Worth, Tex., E. Bruce Ebert, Hurst, Tex., for defendant.
Joseph Colvin, Fort Worth, Tex., Harlan A. Martin, Dallas, Tex., for plaintiff.

MEMORANDUM OPINION
JOHN FLOWERS, Bankruptcy Judge.
Both of these cases concern the right of a Chapter 13 debtor to reinstate the installment payment provisions of an obligation which has been converted under state law into a lump sum demand obligation through acceleration. They have similar but not identical facts. For purposes of discussion the slight factual differences serve to define more clearly the parameters of the right to cure defaults. It is thus convenient that they be decided jointly pursuant to Rule 42, F.R.C.P.[1]
In each case the debtor is the obligor on a note secured by a deed of trust on real estate. Both notes provide for the payments to be made in installments. Both deeds of trust contain contractual provisions granting the payee the right to accelerate the installments and demand the entire principal in the event of default. In each case the notes were accelerated prior to the time the debtor filed for relief under Chapter 13. The effect of the acceleration is to create a lump sum demand obligation under Texas law. See In re Williams, 11 B.R. 504 (Bkrtcy.S.D.Tx.1981) and General Motors Acceptance Corp. v. Uresti, 553 S.W.2d 660 (Tex.Civ.App.Tyler 1977, writ ref'd n.r.e.) In the McIntyre case acceleration occurred when the payee exercised his option under the contract and gave written notice of that fact to the debtor. In addition the payee had commenced a non-judicial foreclosure. In Hardin the payee obtained a state court money judgment for the entire matured obligation and an order directing the sheriff to conduct a foreclosure sale of the security.[2] The sheriff had not completed this foreclosure sale when Hardin filed his Chapter 13 petition. In McIntyre the real property securing the indebtedness is the debtor's homestead; in Hardin it is not.
*811 The relevant portions of the Code are contained in 11 U.S.C. § 1322(b) which sets out what may be contained in a Chapter 13 plan. They provide:
(b) . . . the plan may . . .
(2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor's principal residence, or of holders of unsecured claims;
(3) provide for the curing or waiving of any default; . . .
(5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; . . .
The bankruptcy courts throughout the country are in substantial disagreement over the interpretation to be given this statute. As noted in In re Pearson, 10 B.R. 189, 7 B.C.D. 567 (Bkrtcy.E.D.N.Y.1981), there appears to be unanimity that the right to cure exists until there has been an acceleration of the indebtedness and that it ceases once the property has been sold at foreclosure. Beyond that the cases may be divided into three general groups; (1) those which deny the right to cure an acceleration. See In re La Paglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981) (contractual acceleration); In re Wilson, 11 B.R. 986 (Bkrtcy.S. D.N.Y.1981) (judgment); In re Williams, supra (contractual acceleration); In re Coleman, 5 B.R. 812 (U.S.D.Ct.Ky.1980) (judgment); (2) those which grant the right to cure an acceleration. See In re Taddeo, 9 B.R. 299 (Bkrtcy.E.D.N.Y.1981) aff'd. 15 B.R. 273 (U.S.D.Ct.E.D.N.Y.1981) (judgment); In re Rippe, 14 B.R. 367 (Bkrtcy.S. D.Fla.1981) (contractual acceleration); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio 1981) (contractual acceleration); In re Acevedo, 9 B.R. 852 (Bkrtcy.E.D.N.Y.1981) (judgment); In re Beckman, 9 B.R. 193, 7 B.C.D. 361 (Bkrtcy.N.D.Iowa 1981) (contractual acceleration); United Companies Financial Corp. v. Brantley, 6 B.R. 178, 6 B.C.D. 932 (Bkrtcy.N.D.Fla.1980) (judgment); In re Soderlund, 7 B.R. 44 (Bkrtcy.S.D.Ohio 1980) (contractual acceleration); In re Breuer, 4 B.R. 499 (Bkrtcy.S.D.N.Y.1980) (judgment); and (3) a third more limited group which deny the right to cure where a judicial decree has resulted in acceleration but do not reach the question of whether the debtor may cure defaults in contractual accelerations. In re Pearson, supra; In re Canady, 9 B.R. 428, 7 B.C.D. 749 (Bkrtcy.D.Conn. 1981); In re Jenkins, 14 B.R. 748 (Bkrtcy.N. D.Ill.1981); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981).
The question presented is one of statutory interpretation. Interestingly, the leading cases of the three different views come from three different Bankruptcy Judges all in the Eastern District of New York. The courts in group one have focused on the language of subsection (b)(5) and interpreted it to limit the right to cure to instances where the last payment due on the underlying debt is due after the final payment under the plan is due. They reason that acceleration of the debt has created a lump sum claim due immediately under state law and therefore it is not eligible for treatment under (b)(5). Those courts in group two arrive at their conclusions allowing deacceleration through various reasoning. One leading case looks at the entire statutory scheme of Chapter 13 to arrive at the conclusion that Congress enacted liberal Chapter 13 provisions to encourage debtors to propose repayment plans and retain assets they might forfeit under a Chapter 7 proceeding. If the Chapter 13 debtor cannot deaccelerate and reinstate the original mortgage, he must pay the full mortgage amount in three to five years. Such a harsh result is contrary to the rehabilitative purpose of Chapter 13 and would eliminate one of the prime incentives for utilizing its provisions. See In re Taddeo, supra. The Taddeo court therefore eschews the traditional method of applying state law to determine the nature of the claim and allows deacceleration as in keeping with federally *812 enacted policy. The third group reason that the existence of a judicial decree resulting in acceleration creates problems of finality with those decrees and they should not be overturned without a clear, unequivocal statement of such intent by Congress. In re Maiorino, supra, distinguishes contractual acceleration clauses which it states are invalid because they are contrary to the policy of Chapter 13.
Turning to the statute itself, it is apparent that it is susceptible to two different interpretations, neither of which satisfactorily synchronizes all of the statutory language. One interpretation is that it provides for only one right, which is the right to cure defaults on secured or unsecured claims, and the last clause is a limitation on this right. Essentially this interpretation reads: the right to cure any default on any secured or unsecured claim on which the last payment is due after the final payment under the plan. This was the interpretation given it by the Senate staff. Senate Report No. 95-989, 95th Cong. 2d Sess. 141 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787. It is also the interpretation of La Paglia, supra, and the cases following it. Another more remote interpretation is that it provides for two rights: (1) the right to cure any default on secured or unsecured claims, and (2) the right to provide for payments on secured and unsecured claims on which the last payment is due after the final payment under the plan. This interpretation becomes more plausible with the insertion of a comma after the words "reasonable time" and may have been the interpretation given it by the House staff. House Report No. 95-595, 95th Cong., 1st Sess. 429 (1977), U.S.Code Cong. & Admin. News 1978, p. 5787.
The provisions of 1322(b) raise several unanswerable questions. For example, what is the function served by subsection (b)(3) which literally provides for curing any default. Are subsections (b)(3) and (b)(5) redundant? The legislative history indicates (b)(5) is to be used for "long term" debt. Id. No definition of long term debt is included, presumably leaving this issue for court interpretation. This raises the question whether subsection (b)(5) can only be used for long term debt. Because of the preamble it can be argued that (b)(5) applies only to debt secured by liens on a homestead and (b)(3) to other debts. If it does apply only to homestead liens, it is a crucial issue here since the Hardin case does not involve homestead property and McIntyre does. Another unanswered question is what may be done in cases where the value of the home is less than the amount of the obligation. By definition the excess debt is unsecured. 11 U.S.C. § 506. Presumably that portion could be modified under the unlimited right to modify unsecured claims found in (b)(2). If so, what is intended by the inclusion of unsecured claims in the provisions of subsection (b)(5)? Also curious is the effect on debts secured by a homestead on which the principal has been so reduced there remains only a few installments. Debtors in that situation who fall behind in their payments would have the greatest equity in their property but under the La Paglia interpretation would be denied any relief even though there had not been an acceleration of their installments. It can be said with certainty from reading the entire Code that Congress did not intend to deprive those high equity situations from the benefits of the Bankruptcy Code.
Focusing solely on the language of these sections, they do not provide a clear statement of Congressional intent. In interpreting a statute, the courts are to respect the policy of Congress so as not to impute to it a self-defeating if not disingenuous purpose, Dalia v. U.S., 441 U.S. 238, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979).
Having established the inability of the statutory language to answer the questions involved I turn to other concepts of statutory construction. In construing an ambiguous statute a court must be guided by the legislative history and statutory purpose. Diamond v. Chakrabarty, 447 U.S. 303, 100 S.Ct. 2204, 65 L.Ed.2d 144 (1980). I am of the opinion that the view exemplified by In re Taddeo, supra, and the cases following it which hold the debtor has the right to reinstate the installment payment feature of *813 his obligation and pay out his past due installments over the life of the plan represent the better view.[3] Those cases which adopt the more liberal interpretation such as Taddeo, have in my opinion thoroughly searched and accurately deduced the more reasonable statutory construction based on the purpose and theme of Chapter 13. Essentially, this boils down to an interpretation that encourages debtors to repay their creditors in a Chapter 13 plan and rehabilitate themselves financially. To deny deacceleration eliminates an important consideration in many of these type cases. Furthermore, the Taddeo interpretation eliminates distinctions which may bring about unjust results inheritant in the La Paglia interpretation. For example, it eliminates the possibility of Hardin using subsection (b)(3) to cure the default on his non-homestead property while McIntyre could not although the facts of both cases are almost identical. Additionally, under Taddeo, the right to cure is available to the debtor with a large equity in his home. My conclusion rests on an interpretation of federal law which overrides state law concerning acceleration because of the supreme constitutional power of Congress to enact bankruptcy laws. U.S. Const.Art. I, § 8, cl. 4.
Those cases which distinguish between a judicial decree resulting in acceleration and the exercise of an optional contractual acceleration provision by the lender have the result of placing undue emphasis upon form. Congress clearly has the power in enacting bankruptcy laws to affect judicial decrees. The most obvious example is the discharge of a debt represented by a judgment. Because of the diverse use of judicial or non-judicial foreclosure procedures depending upon the local laws of the state involved such distinctions would cause additional unevenness in the application of the bankruptcy laws as well as encourage the commencement of litigation. Furthermore it is inconsistent to hold that clauses in contracts authorizing acceleration are invalid as contrary to the policy of Chapter 13 until exercised by judicial decree. Finally, when statutory construction ceases to be the reason for a particular interpretation of these provisions and policies regarding judicial finality come into play, the result spills over onto Chapter 11. At this point I am not prepared to hold a Chapter 11 debtor cannot deaccelerate a note which was accelerated as a result of a judicial decree.
Once a lender has accelerated an obligation he may have incurred expenses, particularly when judicial proceedings have been instituted. Other losses or damages may occur as a result of the lender's action being undone. Accordingly, I hold that as a consequence of the right to deaccelerate the debtor must compensate the secured party for any damages, loss or expenses he may have incurred.
NOTES
[1]  Other than for purposes of disposition in this joint opinion the cases are not consolidated.
[2]  This judgment was affirmed by the Texas Supreme Court on procedural issues.
[3]  The Taddeo decision was affirmed by the United States District Court. See In re Taddeo, 15 B.R. 273 (1981). The district court considered the reasoning presented in La Paglia, supra, that state law controlled the issue and stated that the Taddeo view was more in keeping with the rehabilitative purpose of Chapter 13.


Filed 11/3/15 P. v. Jackson CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE

THE PEOPLE,                                                          B263162

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA039187)
         v.

AVALON D. JACKSON,

         Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of Los Angeles County, Dorothy
L. Shubin, Judge. Affirmed.
         Avalon D. Jackson, in pro. per.; and Katja Grosch, under appointment by the
Court of Appeal, for Defendant and Appellant.
         No appearance for Plaintiff and Respondent.
                                      ____________________________
       In 1982, Avalon Jackson was convicted of robbery, rape, and forcible rape in
                                            1
concert. (Pen. Code, §§ 211, 261, 264.1.) In 1993, he was convicted of felony
possession of a firearm by a felon. (Former § 12021.)
       In 1999, Jackson was convicted of felony drug possession (Health & Saf. Code, §
11350) and given an indeterminate life sentence under the “Three Strikes” law (§§ 667,
1170.12).
       Last year, Jackson petitioned for resentencing pursuant to Proposition 36, the
Three Strikes Reform Act of 2012. (§ 1170.126.) The trial court denied the petition
because Jackson was ineligible for resentencing because he had suffered a prior
disqualifying conviction, a ruling we affirmed. (People v. Jackson (May 8, 2015,
B259996) [nonpub. opn.].)
       On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods
and Schools Act, which reduces certain nonserious and nonviolent crimes, such as low-
level drug- and theft-related offenses, from felonies to misdemeanors. (People v.
Contreras (2015) 237 Cal.App.4th 868, 889-890.) A qualifying person serving a
sentence for a felony that was reclassified under Proposition 47 may petition the trial
court for a recall of sentence and request resentencing, which must be granted “unless the
court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” (§ 1170.18, subds. (a)-(c).) As pertinent
here, Proposition 47 amended Health and Safety Code section 11350 to reclassify certain
controlled substance possession charges from felonies to misdemeanors. (Health & Saf.
Code, § 11350, subd. (a).)
       On March 5, 2015, Jackson filed a form petition for recall of his sentence, arguing
his felony drug possession offense was reclassified as a misdemeanor by Proposition 47.
The trial court denied the petition on the ground that Jackson had suffered a prior
disqualifying conviction. Jackson filed a timely notice of appeal.

       1
           Undesignated statutory references will be to the Penal Code.

                                                2
       We appointed counsel to represent Jackson on appeal, but after examination of the
record counsel filed an opening brief raising no issues and asking this court to review the
record independently pursuant to People v. Wende (1979) 25 Cal.3d 436. On July 8,
2015, we informed Jackson he had 30 days to submit any contentions or issues he wished
us to consider. We also directed his appointed counsel to send the record and opening
brief to him immediately.
       Jackson filed a supplemental brief in which he argues that denial of resentencing
without “some evidence” that he presents an unreasonable risk to the public safety
violates his due process rights. (See In re Lawrence (2008) 44 Cal.4th 1181, 1210
[parole may not be denied absent some evidence the inmate poses a current threat to
public safety].) Jackson argues he is eligible for resentencing because his 35-year-old
convictions do not support the conclusion that he poses a present risk to public safety.
       Resentencing under Proposition 47 is unavailable “to persons who have one or
more prior convictions for an offense specified in clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (e) of Section 667 [certain serious or violent felonies] or for
an offense requiring [sex offender] registration pursuant to subdivision (c) of Section
290.” (§ 1170.18, subd. (i).) In 1982, Jackson was convicted of rape and rape in concert,
both of which are disqualifying offenses. (§ 290, subd. (c).) Relief under Proposition 47
is therefore unavailable to him.
       Jackson does not dispute that he suffered convictions for disqualifying offenses.
Instead, he argues resentencing pursuant to Proposition 47 is akin to parole, and just as
due process requires that parole be granted absent a finding that the prisoner presents an
unreasonable risk to public safety, due process requires that resentencing be granted
absent the same finding. The argument is without merit.
       The Fifth and Fourteenth Amendments guarantee substantive due process by
restricting government infringement upon certain liberty interests. (Reno v. Flores
(1993) 507 U.S. 292, 302.) A substantive due process analysis “must begin with a
careful description of the asserted right.” (Ibid.)

                                              3
        A prisoner has no right to a parole. (In re Schoengarth (1967) 66 Cal.2d 295,
300.)
        But the Legislature has granted prisoners the right to apply for parole (§ 3000),
and to have their applications evaluated by the Board of Parole Hearings and possibly
granted (§§ 3040, 5075, subd. (a)). Acting on these rights, the doctrine of substantive due
process requires that a prisoner’s application for parole be “duly considered” based upon
an individualized examination of all relevant factors. (In re Schoengarth, supra, 66
Cal.2d at p. 300; see In re Minnis (1972) 7 Cal.3d 639, 645-646.) Due consideration of
all relevant factors must include examination of “whether the inmate currently poses a
threat to public safety.” (In re Lawrence, supra, 44 Cal.4th at p. 1210.)
        A prisoner likewise has no right to resentencing, but the electorate has granted
some prisoners the right to apply for it. (§ 1170.18.)
        However, this right does not extend to prisoners convicted of rape. (§ 1170.18,
subd. (i).) On the contrary, the stated purpose of the voters in enacting Proposition 47
was to “[e]nsure that people convicted of . . . rape . . . will not benefit” from resentencing.
(Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70, italics added.)
Because the right to resentencing does not exist for these prisoners, the Fifth and
Fourteenth Amendments do not apply.
        Nor does the electorate’s decision to deny resentencing rights to prisoners
convicted of rape violate due process. Due process is satisfied when a rational
relationship exists “between the objectives of a legislative enactment and the methods
chosen to achieve those objectives.” (Cal. Rifle & Pistol Ass’n v. City of W. Hollywood
(1998) 66 Cal.App.4th 1302, 1330; see Reno v. Flores, supra, 507 U.S. at p. 302.) Here,
the stated objective of the voters in enacting Proposition 47 was “to ensure that prison
spending is focused on violent and serious offenses, to maximize alternatives for
nonserious, nonviolent crime, and to . . . . ensure[] that sentences for people convicted of
dangerous crimes like rape . . . are not changed.” (Ballot Pamp., Gen. Elec. (Nov. 4,
2014) text of Prop. 47, § 2, p. 70.) These objectives are directly and therefore rationally

                                              4
served by denial of resentencing to prisoners convicted of rape or serious felonies. Due
process is therefore satisfied.
       We have otherwise examined the entire record and conclude Jackson’s counsel
complied with the responsibilities set forth in People v. Kelly (2006) 40 Cal.4th 106 and
People v. Wende, supra, 25 Cal.3d at page 441. No arguable issues exist.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.

                                                              CHANEY, J.

We concur:

              ROTHSCHILD, P. J.

              JOHNSON, J.

                                            5


NUMBER 13-99-064-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI
___________________________________________________________________

EULALIO T. PUENTES, Appellant,

v.

THE STATE OF TEXAS, Appellee.
___________________________________________________________________

On appeal from the 36th District Court
of San Patricio County, Texas.
___________________________________________________________________

O P I N I O N

Before Justices Dorsey, Chavez, and Rodriguez
Opinion by Justice Dorsey

EULALIO PUENTES appeals the January 25, 1999, revocation of his deferred adjudication
probation by four points of error. However, appeal is not available from a trial court's
decision to adjudicate guilt following deferred adjudication probation. Tex. Code Crim.
Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2000); Olowosuko v. State, 826 S.W.2d
940, 942 (Tex. Crim. App.1992), Rodriguez v. State, 997 S.W.2d 640, 641 (Tex.
App.--Corpus Christi 1999, no pet. h.). Section 5(b) of article 42.12 states:
On violation of a condition of [deferred adjudication] community supervision . . ., the
defendant may be arrested and detained as provided [elsewhere in this article]. The
defendant is entitled to a hearing limited to the determination by the court of whether it
proceeds with an adjudication of guilt on the original charge. No appeal may be taken from
this determination. After an adjudication of guilt, all proceedings, including assessment
of punishment, pronouncement of sentence, granting of community supervision, and
defendant's appeal continue as if the adjudication of guilt had not been deferred. A court
assessing punishment after an adjudication of guilt of a defendant charged with a state
jail felony may suspend the imposition of the sentence and place the defendant on
community supervision or may order the sentence to be executed, regardless of whether the
defendant has previously been convicted of a felony.

Accordingly, this court is without jurisdiction, and Puentes' appeal is dismissed.

J. BONNER DORSEY,
Justice

Do not publish.
Tex. R. App. P. 47.3(b).

Opinion delivered and filed
this 31st day of March, 2000.


                                                      NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                         ___________________

                          Nos. 12-2839 & 13-1446
                          ___________________

                              LAILA RAJABI,
                                          Petitioner

                                      v.

         ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                                 Respondent

                           ___________________

        On Petition for Review from the Board of Immigration Appeals
                          BIA-1 No. A074-761-909
            Immigration Judge: The Honorable Robert P. Owens

              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              January 6, 2014

          Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges

                          (Filed: February 3, 2014)

                           ___________________

                                OPINION
                           ___________________

SMITH, Circuit Judge.

                                      1
                                           I.

      Laila Rajabi petitions for review of a June 15, 2012 order of the Board of

Immigration Appeals (C.A. No. 12-2839) affirming the denial of her application

for asylum and withholding of removal under the Immigration and Nationality Act

(INA), and withholding of removal under the United Nations Convention Against

Torture (CAT).1 See 8 U.S.C. §§ 1158(a), 1231(b)(3); 8 C.F.R. §§ 1208.16(c),

1208.17(a). She also petitions for review of the Board‟s February 4, 2013 order

denying her motion to reopen her removal proceedings (C.A. No. 13-1446). These

petitions have been consolidated for our review.2 For the reasons set forth below,

both will be denied.

                                          II.

      Rajabi, a native and citizen of Iran, entered the United States in 1996

without proper documentation and was immediately placed in removal

proceedings. She promptly filed an application for asylum and withholding of

1
       The BIA‟s June 15, 2012 order addressed only Rajabi‟s application for deferral of
removal under the CAT. Yet the order incorporated by reference a June 25, 2009
interlocutory decision denying Rajabi‟s applications for asylum and withholding of
removal under the INA. Thus, the BIA‟s June 15, 2012 order constituted a final order of
removal, bringing this matter within our appellate jurisdiction. See 8 U.S.C. § 1252(a).
2
       The BIA had jurisdiction over Rajabi‟s motion to reopen pursuant to 8 C.F.R. §
1003.2. This Court has jurisdiction to review final orders of the Board, including the
denial of a motion to reopen, pursuant to 8 U.S.C. § 1252(a)(1).

                                           2
deportation under the INA, which was denied by an immigration judge (“IJ”) on

July 7, 2000.3 Rajabi appealed to the BIA, who remanded the case to the IJ in

2003, and again in 2005, because tapes were missing from the record. As a result

of these decisions, Rajabi‟s case was heard de novo before a different IJ in 2007.

      In 2007, Rajabi once again applied for asylum and withholding of removal

under the INA, and also for protection under the CAT.4 Rajabi‟s application stated

that, beginning in 1995, she was a “student member and a recruiter” for

Mojahedin-e Khalq (“MEK”), an organization she claimed was purposed on

“replac[ing] the current regime in Iran with a democratic government” and

“promot[ing] social welfare.”5 Rajabi asserted that because of her MEK

3
        During the pendency of her removal proceedings, Rajabi met and married her
husband, a United States citizen from Iran. Rajabi‟s husband filed a petition for an
adjustment of her status in 1998, and the first IJ to hear her case administratively closed
the proceedings pending the outcome of that petition, which was denied on the merits in
1999. This explains the three year gap between the date Rajabi first applied for asylum
and the IJ‟s denial of her application in 2000.
4
        Relief under the CAT was not available at the time Rajabi filed her first
applications for asylum and withholding of removal in 1997.
5
        Formed in the early 1960s, MEK‟s origins reflect both Marxist and Islamic
influences. U.S. Dep‟t of State, Iran; Country Reports on Terrorism, 2005. In its early
days, MEK collaborated with Ayatollah Khomeini in his effort to overthrow the former
Shah of Iran. Throughout the 1970s and 1980s, the organization participated in a series of
terrorist attacks against the interests of the United States. In view of these actions, the
U.S. Department of State added MEK to its list of designated Foreign Terrorist
Organizations in October 1997. That designation, however, was removed in September
2012, in light of “MEK‟s public renunciation of violence, the absence of confirmed acts
of terrorism by the MEK for more than a decade, and their cooperation in the peaceful
closure of Camp Ashraf, their historic paramilitary base.” Supp. A.R. at 19, Media Note,

                                            3
membership she feared being “imprisoned . . . , tortured, raped, and possibly

killed” if she returned to Iran. Rajabi claimed that her sister—who was the leader

of several MEK cells and involved with a “small military wing” of the

organization—was arrested by Iranian police at their parents‟ home in May 1996.

Rajabi alleged that the authorities searched for her as well, and as a result, she has

not returned home since the date of her sister‟s arrest.

      Despite the detailed description in her application, Rajabi minimalized her

involvement with MEK during her hearing before the IJ. She testified that she was

not actually a member of MEK, explaining that at the time she filed her application

she was unaware that the group required that an individual be involved for several

years before it would grant membership. Further, Rajabi claimed that she

participated in MEK for only about six months, during which time she merely

distributed pamphlets and assisted several families displaced by the war between

Iraq and Iran. Rajabi also testified that she did not know that MEK engaged in

violence until after she came to the United States.

      The IJ denied Rajabi‟s application for asylum and withholding of removal in

an order dated October 5, 2007. As an initial matter, the IJ found that Rajabi‟s

testimony was not credible, especially as to the “most crucial parts” related to her

U.S. Dep‟t of State, Delisting of the Mujahedin-e Khalq (Sept. 28, 2012).

                                            4
knowledge of MEK and the extent of her involvement with the organization. He

noted that Rajabi‟s application “disclosed a more intimate knowledge of the way

MEK worked and its political objectives and militant capacities” than she

professed in her oral testimony. He also disbelieved her assertion that she did not

know about MEK‟s violent activities, particularly considering her sister‟s

leadership role and Rajabi‟s mention in her application of the organization‟s

military branch.

      The IJ additionally concluded that Rajabi was statutorily ineligible for

asylum, withholding of removal, and CAT relief because, by distributing literature

and recruiting individuals to join MEK, Rajabi had provided material support to a

Tier III terrorist organization. See 8 U.S.C. §§ 1182(a)(3)(B)(iv)(VI)(dd), (vi)(III).

In determining that MEK was a Tier III terrorist organization, the IJ noted that the

organization‟s history is marked by anti-Western activity. Indeed, during the

1970s, MEK‟s members staged terrorist attacks inside Iran, assassinated at least six

American citizens, supported the takeover of the U.S. Embassy, and opposed the

release of American hostages. See People’s Mojahedin Org. of Iran v. U.S. Dep’t

of State, 182 F.3d 17, 20 (D.C. Cir. 1999) (quoting CIA Intelligence Research

Paper dated July 1993). In light of these actions, the U.S. State Department

designated MEK as a Tier I terrorist organization in 1997, just months after Rajabi

                                          5
arrived in the United States. See 8 U.S.C. §§ 1182(a)(3)(B)(vi)(I), 1189. Although

MEK was not listed as a Tier I terrorist organization while Rajabi was offering her

support, the IJ concluded that, given the organization‟s nefarious past, it was most

certainly a Tier III terrorist organization before its official designation.

      Despite concluding that Rajabi was statutorily ineligible for withholding of

removal under the CAT for engaging in terrorist activities, the IJ nonetheless

granted her deferral of removal under 8 C.F.R. § 1208.17(a).6 The IJ reasoned that

because Rajabi would be required to submit her deportation order to Iranian

authorities, the authorities would be notified about her previous MEK involvement.

He thus found that “it is more likely than not that upon her arrival [in Iran],

[Rajabi] will be detained and subjected to torture by the Iranian government.”

      The Department of Homeland Security and Rajabi both appealed to the BIA.

The Board affirmed the IJ‟s adverse credibility determination and his finding that

Rajabi was statutorily barred from asylum and withholding of removal as an alien

who participated in terrorist activities. The BIA, however, vacated the IJ‟s decision

to grant deferral of removal under the CAT because the IJ‟s order was “unclear as

6
       The IJ purported to grant Rajabi CAT protection under 8 C.F.R. § 1208.16(a). This
regulation, however, provides for withholding of removal, a form of relief that is not
available to aliens who have provided material support to a terrorist organization. The
BIA, therefore, appropriately understood the immigration judge to have intended to grant
deferral of removal under 8 C.F.R. § 1208.17(a).

                                            6
to what evidence supports the finding of a clear probability of torture and whether

each „link‟ in the chain of events leading to her torture was demonstrated to be

more likely than not.”

      On remand, the IJ determined that Rajabi failed to establish that she was

entitled to deferral of removal under the CAT, in part because she did not provide

sufficient testimony or other evidence to prove that it was more likely than not that

the Iranian government would identify her as a political opponent. On June 15,

2012, the BIA affirmed the IJ‟s decision and dismissed her appeal. Rajabi timely

petitioned this Court for review.

      While her petition for review was pending, Rajabi filed a motion to reopen

her removal proceedings based on the fact that the Secretary of State had

decertified MEK as a Tier I terrorist organization on September 28, 2012. The BIA

denied the motion to reopen on February 4, 2013. The Board stated that the official

designation as a terrorist organization does not determine Rajabi‟s removability,

particularly where her removal was based on a finding that MEK was a Tier III

terrorist organization at the time of Rajabi‟s participation. Further, the BIA noted

that Rajabi‟s previous applications for relief were denied on the independent

ground that her testimony lacked credibility. Rajabi timely petitioned for review of

the denial of her motion to reopen. The two petitions have been consolidated for

                                         7
our review.

                                         III.

      We “review the administrative record on which the final removal order is

based.” Li Hua Yuan v. Att’y Gen. of the U.S., 642 F.3d 420, 425 (3d Cir. 2011).

Where the BIA‟s decision affirms and specifically references the IJ‟s decision, our

review includes the referenced portions of the IJ‟s decision. Id. “Our review of

factual findings, including findings [related to] persecution and fear of persecution,

is for substantial evidence, which means we must uphold findings of fact unless the

record evidence compels a contrary finding.” Id. (citing Sandie v. Att’y Gen. of the

U.S., 562 F.3d 246, 250 (3d Cir. 2009)). We review legal conclusions de novo. Id.

      Rajabi‟s primary contention, with respect to both her motion to reopen and

her application for asylum and withholding of removal, is that the Secretary of

State‟s September 2012 decision to delist MEK as a Tier I terrorist organization

somehow commands a different outcome in her removal proceedings. While the

decision to remove MEK from the list of Tier I terrorist organizations may reflect

the United States‟ current perception of the organization, we fail to see how this

has any bearing on whether MEK was a terrorist organization at the time of

Rajabi‟s involvement.

      Under our immigration laws, an alien is inadmissible and ineligible for

                                          8
asylum, withholding of removal, or CAT relief if she “has engaged in a terrorist

activity,” 8 U.S.C. § 1182(a)(3)(B)(i)(I), which includes committing “an act that

the actor knows, or reasonably should know, affords material support” to a terrorist

organization. Id. § 1182(a)(3)(B)(iv)(VI)(cc), (dd); see also id. § 1158(b)(2)(A)(v);

8 C.F.R. § 1208.16(d)(2). The INA defines a “terrorist organization” as a group so

designated by the Secretary of State (a “Tier I” organization), 8 U.S.C. §

1182(a)(3)(B)(vi)(I), or as an undesignated group that “engages in, or has a

subgroup which engages in,” terrorist activity (a “Tier III” organization). Id. §

1182(a)(3)(B)(vi)(III).7 To be sure, providing material support to a terrorist

organization—whether Tier I or Tier III—precludes an alien from obtaining

protection under our immigration laws.

      Although MEK was not designated as a Tier I terrorist organization until

1997 (just after Rajabi arrived in the United States), the IJ concluded that, given its

history of violent anti-Western conduct throughout the 1970s and into the 1990s,

MEK was nonetheless a Tier III organization at the time Rajabi provided material

7
        For our purposes, there is only one distinguishing feature between Tier I and Tier
III organizations: for undesignated Tier III organizations, the material support bar does
not apply if the alien “can demonstrate by clear and convincing evidence that [she] did
not know, and should not reasonably have known, that the organization was a terrorist
organization.” 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd). The IJ concluded that, given MEK‟s
long history as an organization and her sister‟s leadership role, Rajabi could not
demonstrate that she should not reasonably have known that MEK was involved in
terrorist activities. Rajabi does not challenge this finding in her petition for review.

                                            9
support in 1995.8 Rajabi, however, contends that she should not be disqualified

based on her past support of MEK. She argues that the statutory definition for a

Tier III terrorist organization uses present tense language, and thus the material

support bar should not apply where the supported organization is no longer

actively engaged in terrorist conduct.

      Rajabi‟s position finds no support in either the plain language of the statute

or the statutory context. Importantly, the operative provision of the statute that

directly addresses an alien‟s eligibility for relief is plainly phrased in the past tense,

stating that an alien is inadmissible if she “has engaged in a terrorist activity.” 8

U.S.C. § 1182(a)(3)(B)(i)(I). This language is clearly directed both at past conduct

and ongoing behavior. Our reading is bolstered by the fact that the PATRIOT

Act—which amended the INA to add restrictions for aliens who previously

engaged in terrorist activities—includes a retroactivity provision that states that the

law applies to all “actions taken by an alien before, on, or after [the date of

enactment].” USA PATRIOT Act of 2001, Pub. L. No. 107-56, Title IV, §§

411(c)(1)(A), 115 Stat. 272, 348. Indeed, the authorization of retroactive

application would have no function if not to reach past conduct.

      The use of the present tense in the definition of a Tier III organization does
8
        Rajabi has not challenged the IJ‟s conclusion that distributing literature and
recruiting members constitutes “material support.” See 8 U.S.C. § 1182(a)(3)(B)(iv)(V).

                                           10
not alter our conclusion. Indeed, that definition includes any “group of two or more

individuals . . . which engages in [terrorist activity].” 8 U.S.C. § 1182(a)(3)(B)(iv)

(emphasis added). But here, the term “engages in” refers to the conduct of the

organization, not the individual alien‟s actions. It describes the acts the

organization must have undertaken at the time the support was given in order for

the alien to be deemed inadmissible. There is no basis for concluding this language

was intended to restrict the application of the INA‟s disqualification provisions to

aliens actively engaged in ongoing terrorist activities.

      Furthermore, our sister circuits that have considered the issue agree that an

alien‟s past support to an organization that qualified as a “terrorist organization” at

the time the support was rendered precludes that individual from relief under our

immigration laws. See, e.g., Alturo v. U.S. Att’y Gen., 716 F.3d 1310, 1313 (11th

Cir. 2013) (“[T]he fact that the AUC was demobilized in 2006 does not render the

material support bar inapplicable. When Alturo made those payments, the AUC

was active and designated as a Foreign Terrorist Organization . . . .”); Khan v.

Holder, 584 F.3d 773, 777 (9th Cir. 2009) (“[I]f an alien „has engaged in a terrorist

activity‟ under § 1182(a)(3)(B)(iv) at any time, he is ineligible for both asylum and

withholding of removal. It does not matter that the alien ceased participation in

terrorist activity at some point before seeking admission to or relief in the United

                                          11
States.”). Rajabi has not identified any case that holds to the contrary.

      For these reasons, we cannot accept Rajabi‟s argument that the State

Department‟s decision to delist MEK as a terrorist organization compels a different

outcome in her quest for asylum, withholding of removal, or CAT relief. The IJ

appropriately determined that MEK was a Tier III terrorist organization at the time

of Rajabi‟s involvement in 1995. Also, the IJ did not err when he concluded that,

by providing material support to MEK at that time, Rajabi is ineligible for

protection under United States immigration laws. Rajabi‟s consolidated petitions

for review will be denied.

                                          12


POST OFFICE BOX 1437 - GREENVILLE, TEXAS 75403-1437

DISTRICT CLERK
.SIACE¥‘LAND,RUM
<.9,03.) 908,-‘4.1\??2.\;

Clerk,

Court of Criminal Appeals RECEl\/ED lN

P.O. Box 12308 COURT oF
Capitol Station CR’M|NAL APPEALS

Aus;;n,Teng:78711 APR 28 2315
Apri_l.zl, 20'15l Abe|AcOSf~a, C|erk

Re;,WRI_T.08299
gharle§~Killing,S-"YQWI .,;

Dear Slr :"`*.r”`t : k

l ":P-le'a$e‘_`~lflnd en<;`:hli)'éedy`tlie` addltxonalflhngs in the above styled and numbered
cause. ‘ 7

Applicant’s S'upplement to the Original 11.07 Writ of Habaes Corpus.

v Yours truly,

Stacey Landrum, District Clerk

D€e Ann Brierton, Deputy

, ` .,.,Kf/' /\/0¢09¢;\>@1@1
E>< PARTE
iv¥»vvvv’v€é` hamm 71/@/<~7-/7

AP'? 2 f 2015

.E/‘)FLZ’QQ/v/T'F P;/;a/T@M//?@ ,
i-" 953 .-` -_,- . . ' . re aziz/my co
' //‘V/ /77/5¢»¢”\ /@ w/?zz- wl 761/2945 '”v
lwe/074

A/@W 55”755 C/"m€f'“/vv?»<' kid/'//f'jswo»»%é , 6/0@0//£¢7/7%/. 4/7¢/'/0¢>¢»»5%¢;,,7"' 747
74 f 791/l vf’ //§0'7,- ~)[/`/w 7%") Feé)y%»/ /1`1 i”é’J/chs‘e 74 f")[@-»'/¢§'; /4715@.£’/ /%
Qp/Q/iC‘a/i%jf /Uh"?¢ 07[ //@A¢?¢z)’ /£;v¢}pc(f, é'n;/ §~A¢,M;' 7¢%@ '1£//2"¢4/!/7:

/v A/a///La»“/ /76¢'/€2¢ M}c/€¢/ 62/)7 l:£<`¢{c') 0)[ ¢i/)gi£éwé’”<i
5'1%§'57]74&44(;.£* 01[ (b¢ié/U‘cf/ 679/491 Ae /p/é¢?c/£:¢;/ 7,,'¢///£7 74¢ 7%¢? ‘[/)("5`7[ 7[7/”"€ ,
2075 ¢/v¢>:' S`ezc@»,:! 74/'»»1¢1 m /”¢;pre,@{§¢/ éj 7’%£ 5747§» /`/7 /‘/J' éww"~s} 0¢')
764/my /5"/ Zo/% 7%€ 574/745 Q’/§¢» fe?/o/ 0‘¢:3,1»7[¢'@/ /';*' /"/J[` anyway %;/7[
L/H€ '74§1"1¢/ /Z>i//*?[j/@/)M 4/0///2&'4/ A/'f M£/")£/@"’ 1€/ /7‘3’¢~) !7"""[ ./Z’j
‘,5/‘5<£» /,v /707/. 74¢{€’€ 771/c Q/D,p//c¢m%"éuceij/\¢MM A/éw '7[/‘[¢¢/ ah
i)¢:»zhv§£`[-i"'v-€%v`/L z?/v /'7; Qf;?€ §/¢;/€;{C E>¢A'{S}L ’7/,' 7%§ 747/a / 52"1¢»1¢/‘~7‘£v
v.//‘¢/ /w‘/ j/w»% 7’%€- M///}b»v 75, mw 75,;7_/ 071 /W,,,:;~A`me»/'/* 077
597074#».51% »2‘// Z¢"/"/ AW/ /"¢2.//7,@/ 67¢1 Aé)uemé‘¢z 57 267in J/!:’€
5?’)4¢7§)-3 517/agr 7£_ L/v 772_@ @/4’7§»" 624 7%€§’]€ )é;/U' §/y€ //7"{¢7/’/~ c?c>?/’ %€,

4/¢?@/,‘@77»! wm ///e.z/W jr/zw%é/ 4 mm An,'~~lz/ 777 z£/@/g. If` -/Ag,
SCANNED

"€F},/U//c¢:»;¢w/ gun /57 '1'5555~:/: j"/'\cz» VL“lfj 97 /ilv.<:»v 75”'5‘9/ A@’ tag NV/§‘/é‘?é/
c?/')/l/ 5/’/‘~?`0@£/ 7%/ 597/7 /l"' jf/)’é”é"':j '74“"“‘/ /‘}"?’é"/ éci_j/w/»`I@/'

. 7d 955/g ha FFA/ 775
919/755 /5 /5’4555555/ 555

/§7/'/'5:£9551"/ cH//o/%éug 5:; /v/v'j/§%' 755 553/5~<;_
§ /0/~0 »J~@ /0@¢5/~,~"0,1 Q/ Q/;,.;¢»C/,@ ',v¢,h@/i], pga/edf MAJ,Z¢ fla (/;G/
5@/5. 455 ¢/5'5 AL,./ /555,7.~¢7 ;5_,7 55 /J555,55155 ,5/. 555/// 557/1594
1595 055/599 595/557 55 57 /55. 741/55 555-555 755/545 555
J/I/¢)//"`w». 7/`_ 545/ /)v 07%¢55 5%5552@ éwj/ §§ ,-5&5\[,1/6 AU /A/,.,,_@Z
(7’55»¢75955 55 055555 -/5555,7 555,555)_ 555/54 55 5/,<5/ 55 5
'¢»Mvv‘j7 /15¢5555/555. . dea Ip/g/Yg"¢/» '/f &r/j/hq:/ /%7€’7//25»5

25 775€ )4,0/0/5¢(5'71'>/£ /)ew@./ C/Q/`/)/)-czf 756 %¢55:/ 411 /hj'c:~/n/;zj
c/@)Zz:im‘c: 5¢5,<€¢0 £(7555,, 7%@ 255/53/,5¢5¢~74 "‘¢5.,., k? D/»~ D¢z¢//'o/ />7@://§ fmi
ii/p/y//cc§n»!$ Lw"~`¢ of /045/.5@; /["7~» /'./. 746 /¢/7/@/525;5,`/ fisc/uf 055¢:'<
15555j 55 575 055 2955,15/' 155//.. 565/555 59/5`5 575-54 /5555;»5"/ 595/55
g)jub 71” é,¢%@ j //Ag /i/A/Q/}’c&,¢/ wm c/5‘Qj/4a_r¢'>/ 61’/75€/7,,>45//:57 /}`/
107 9 151 ;@'93//\§1:511 /;)5'5}7;£5':5'»)5~5"3 1"' wQ¢ 7%@ 571-509 wl ;;;J 455/j
P15§C£9'5 @""\ )’1’1&9[»"€9974"`9-»'13” 5 5¢25: /¢/d/¢,//U;W/j ¢;)59\5 "`/ €ZJZ /95/¢@/7 ;§__ 7 74
7/4"“* /;’5/’// 354/1995 by 71591 S)Z@'/€ pva/95 c¢/m)n lim/71 615/755 jQ<§
H/Z':`S [9"*"£5 505 "1" M/l§(/€;'/H€#MM' C¢z;€ jim /4/0/”/""€¢?¢£5/' W"`L§
/’1-“1’»/€¢” W¢¢/¢¢/f¢' ffc/j 511/5 795/5 (,"/5/`/15¢5"5»2.¢55/ C.‘¢z,v’c:v/_ /5/'555 mw 79/¢'_
/517@!0/15~ 999/5 j/:l/f~"/)/\ 92/57 yéJ>Z/"'/Vj/ 759 §‘)45'7;,1£55/591 75 595/555 v`/¢'vf§f/M/;""”/

/Z,

s » "

fair 17;:1:”/5)€:@, pmm/355 45555/'5/25555/ 7 77a 755/item 791 755/51455
1 Lf/é WCL!`LL /?Q,'(/'I:C£J SL’LO£»L/f/' /§'ZZ. j/'@/}L@@/

/{D?£S/QG?WZAL/`/j /Q{ ét/’H/ ;A’§/
05 575 @555555

E//‘/"j` Mm?£
/M“) /:M €5`90

55 A'A‘¢mé 07 few/555
5 I n AW¢;£?_ 555,5,£5,£; %55/ 0 74”¢¢¢’ 655/aj bow /0/¢';1;@5/
/"9 975 915§>//'15// 55 /75/," 55 45/<555, /f/-/ //:9575
Pi‘s~!»/c;! /17%»5»@9/ //5-555% /5~`555,757/'75§;5557 }£{). /)75,5 777
Af/»ez:n L//'//z’/ 7`&5§¢57 751/035 ()$1'§/` / 6 674 A/i,'/ /7'/ g¢:»/J",
g [""1 *%‘L’ Ay//Zw“jd/;/'vnh£:
(%9»»~/5§:5 /(55/1//`/1¢§5‘¢;)5)5§ 445
Pr¢» 559 747/0/,.5555,,,,7{~


290 F.2d 381
110 U.S.App.D.C. 190
Theodore BRITTON, Deputy Commissioner, Bureau of EmployeesCompensation U.S. Department of Labor, Appellant,v.GREAT AMERICAN INDEMNITY COMPANY, a corporation, and Jo-DelRestaurant, Inc., a corporation, Appellees.
No. 16120.
United States Court of Appeals District of Columbia Circuit.
Argued March 14, 1961.Decided May 4, 1961, Petition for Rehearing En Banc DeniedJune 5, 1961.

Mr. Herbert P. Miller, Asst. Sol., Department of Labor, with whom Messrs. Oliver Gasch, U.S. Atty., at the time of argument, and Carl W. Belcher, Asst. U.S. Atty., were on the brief, for appellant.
Mr. Paul J. Sedgwick, Washington, D.C., for appellees.
Before BAZELON, FAHY and BASTIAN, Circuit Judges.
BAZELON, Circuit Judge.

1
An employer and its insurance carrier brought this suit against the Deputy Commissioner to set aside a compensation order directing payment of benefits to the dependents of two musicians fatally wounded by two disgruntled customers, who returned to the employer's premises after having been ejected.  The amended complaint challenged only three of the defendant's findings: (1) that the deceased persons were employees and not independent contractors, (2) that the mother of one of the deceased was a dependent, and (3) that the award is based upon a properly determined wage rate.

2
These findings were sustained by the District Court at the hearing on defendant's motion for summary judgment.  However, the court, sua sponte, noted an additional finding which it set aside-- namely, that the homicides arose out of and in the course of employment.  The defendant strenuously objected to this action on the ground that the issue was not urged either in the administrative proceeding or in the present complaint.  In overruling this objection, the court stated orally that it would consider any issue upon which 'there is evidence in the record.'  The court thereupon treated plaintiffs' memorandum in opposition to defendant's motion for summary judgment as a cross motion, and granted summary judgment in favor of plaintiffs.  This appeal followed.

3
We agree with the District Court that the record supports the findings of the Deputy Commissioner challenged in the complaint.  But we think that the court erred in considering the issue which it raised, sua sponte.

4
In the formal pleadings and pre-hearing procedures before the Deputy Commissioner, the employer and its carrier denied, inter alia, the allegation that the of employment.  But at the hearing, in response to the Deputy Commissioner's effort to fix the issues for contest, counsel homicides arose out of and in the course specifically limited its denials to the allegations of employer-employee relationship, wages and dependency.1  Thus the claimants were entitled to believe, as the Deputy Commissioner asserts they did, that the employer and its carrier had withdrawn their denial of the allegation now in question.  The District Court read some of the evidence thereafter adduced at the hearing as disproving that allegation.  It may not be assumed, however, that the claimants would have been unable to present countervailing evidence even if they had not been led to believe that the issues had been withdrawn.  Maryland Casualty Co. v. Cardillo, 1939, 71 App.D.C. 160, 107 F.2d 959; Metropolitan Casualty Ins. Co. v. Hoage, 1937, 67 App.D.C. 54, 89 F.2d 798.

5
In concluding that the employer and its carrier withdrew their pre-hearing denial of the allegation that the homicides arose out of and in the course of employment, we are fortified by the failure of their complaint herein to challenge the action of the Deputy Commissioner in sustaining that allegation.

6
Reversed and remanded for further proceedings in accordance with this opinion.

7
BASTIAN, Circuit Judge (dissenting).

8
I would affirm the judgment of the District Court on the very able opinion of Judge Holtzoff.1  I think I should add that, in my opinion, it is quite clear that the issue as to whether the homicides arose out of and in the course of employment was before the Deputy Commissioner and, as well, before the District Court.

9
In the answer of the employer to the employees' claim for compensation, the following appears:

10
'4.  It is denied that at the time of the alleged injury the employee was performing service growing out of and incidental to his employment.'

11
In the Notice to the Deputy Commissioner that Claim Will be Controverted, the following appears:

12
'Claimant's death not as a result of accidental injury or disease arising out of or during the course of his employment for the above-named employer.'

13
In the Notice of Hearing, it appears that the hearing was set 'for consideration of: Injury arising out of and in the course of employment (and other defenses not here important).'

14
When the case came before him, the Deputy Commissioner asked appellees' counsel: 'What are the grounds of controversion?'  Counsel replied:

15
'Basically, without specifying it, we are resisting the claim in every particular, except such particulars as we will later stipulate to, but generally, it is to contention of the respondents that there was no relationship of employer-employee at all insofar as the management of the Jo-Del Restaurant and the musicians were concerned and, of course, basically the dependency of the mother.'

16
Throughout the hearings before the Deputy Commissioner, testimony pro and con was received pertinent to the seriously disputed issue (among others) as to whether the homicides arose out of and in the course of employment; and that issue was in fact resolved by the finding of the Deputy Commissioner.  I can not agree that it is 'abundantly clear that at the hearing before the Deputy Commissioner counsel did not contest the allegation that the homicides arose out of and in the course of the employment.'

17
In the amended complaint, which is commented on by the majority, appellees, after setting forth certain specific objections, alleged as follows:

18
'9.  The Transcript of testimony, evidence and proceedings before said Deputy Commissioner, by this reference, are made a part hereof and are incorporated herein.

19
'10.  That the Findings and Awards of said Deputy Commissioner are not in accordance with law, but are arbitrary, capricious and founded upon irresponsible statements not competent evidence, conjecture and speculation, and said Awards are without substantial evidence to support the same.'

20
One of the Deputy Commissioner's specific findings was 'that the injury arose out of and in the course of the employment.'

21
I think it unfortunate that in compensation cases such a strict view of the issues should be taken as appears in the majority opinion.

22
For the above reasons, I would affirm the judgment of the District Court.

1
 With respect to the issues in controversy on one of the claims herein, counsel for the insured and its carrier stated to the Deputy Commissioner that
'There was no relationship of employer-employee before or at the time of the occurrence.  We controvert the claim for earnings; we controvert the dependency claim of the mother; and we are controverting until shown any evidence, any medical expenses.
'Basically, without specifying it, we are resisting the claim in every particular except such particulars as we will later stipulate to, but generally, it is the contention of the respondents that there was no relationship of employer-employee at all insofar as the management of the Jo-Del Restaurant and the musicians were concerned and, of course, basically the dependency of the mother. * * *'
With respect to the other claim, counsel subsequently stated:
'The overall grounds of the controversy are that there was no employer-employee relationship.  Specifically, we deny that relationship and we deny the claimed earnings.  That is the extent of our denials in that case.'
Read as a whole, it is abundantly clear that at the hearing before the Deputy Commissioner counsel did not contest the allegation that the homicides arose out of and in the course of employment.

1
 1960, 186 F.Supp. 938


160 S.E.2d 728 (1968)
273 N.C. 571
Appeal of REEVES BROADCASTING CORPORATION from the Valuation Placed on Property by Brunswick County for 1965.
No. 536.
Supreme Court of North Carolina.
May 1, 1968.
*732 E. J. Prevatte, Southport, for Brunswick County, appellant.
Sullivan & Horne, Southport, Broughton & Broughton, by John D. McConnell, Jr., Raleigh, for Reeves Broadcasting Corporation, appellee.
HUSKINS, Justice.
The assessment, listing and collection of taxes is regulated by the Machinery Act, G.S. § 105-271 et seq., which prescribes the time and manner for listing and valuing property for ad valorem tax purposes. Portions of the act pertinent to decision in this case are analyzed below.
Real property in Brunswick County must be listed and assessed for ad valorem taxes on January 1, 1958 and every eighth year thereafter. G.S. § 105-278. The Board of County Commissioners is required to appoint a tax supervisor, G.S. § 105-283, who is responsible for the proper listing and appraising of property. G.S. § 105-286. The tax supervisor appoints list takers who in the first instance determine valuations. G.S. § 105-287. The tax supervisor has the power, however, at any time prior to the meeting of the Board of Equalization and Review, "to change the valuation placed on any property by the list taker." G.S. § 105-286(g). After the property has been listed and valuations placed upon it by the list takers or by the tax supervisor, the County Commissioners sit as a County Board of Equalization and Review. In such capacity it has the duty to equalize the valuation of all property in the county to the end that property shall be listed on the tax records at the valuation required by law. G.S. § 105-327(g)(1). This board is required to correct, inter alia, the valuation of any taxable property on the tax list, increasing or decreasing the assessed value so as to conform the valuation to legal requirements. The board may not change the valuation of any real property from the value at which it was assessed for the preceding year except in accordance with the terms of G.S. § 105-278 and G.S. § 105-279. G.S. § 105-327(g)(3). Real property is valued octennially as provided in G.S. § 105-278. In other than octennial revaluation years, all real property not subject to reassessment must be listed for ad valorem taxes at the value at which it was assessed at the last revaluation. The following property, however, is subject to reassessment in other than revaluation years, to wit: (1) all real property which has increased more than $100 in value by virtue of improvements or appurtenances added since the last assessment (except those exempt from taxation by G.S. § 105-294 not pertinent here); and (2) all real property which has been subdivided into lots on streets already laid out and open for travel, and sold or offered for sale as lots, since the date of the last assessment. However, where lands have been subdivided into lots and more than five acres of any such subdivision remain unsold by the owner, the unsold portion may be listed as land acreage in the discretion of the tax supervisor. G.S. § 105-279(3) b., f.
Any taxpayer may except to the order of the Board of Equalization and Review and appeal to the State Board of Assessment in the manner provided by G.S. § 105-329.
*733 In appraising real property for tax purposes, it is the duty of the county tax supervisor to see that every lot, parcel, tract, building, structure and other improvement being appraised is actually visited and observed by the township list taker or an expert appraiser employed to assist the tax supervisor and list takers. G.S. § 105-295. Furthermore, the county tax supervisor is required to provide for the development and compilation of standard uniform schedules of values to be used in appraising real property in the county. G.S. § 105-295. A separate property record for each tract, parcel, lot or group of contiguous lots must be prepared so property owners may ascertain the method and standard of value used in evaluating their properties. G.S. § 105-295.
In determining value, the assessors should consider any or all of the following indicia when applicable to the particular property being valued, to wit: the location, quality of soil, timber, water power and privileges, mineral deposits, fertility, adaptability for commercial and other uses, past and probable future income therefrom, present assessed valuation, and any other features affecting the value of each separately listed tract, parcel or lot. G.S. § 105-295. This statute, generally speaking, is directory. Failure to consider each and every indicia of value recited in the statute does not vitiate the appraisal. In appraising a vacant lot on Main Street, for example, an assessor would not likely give attention to mineral deposits or water power.
With respect to tax valuation, all real property as far as practicable, shall be appraised at its true market value in money. In revaluation years and annually thereafter, the Board of County Commissioners is required to adopt some uniform percentage of the appraised value as the value to be used in taxing property. This percentage is known as the assessment ratio and is applied to the appraised value of all property subject to assessment. The tax records of the county should show both the appraised value and the assessed value for tax purposes. G.S. § 105-294.
When appeal is taken from the County Board of Equalization and Review to the State Board of Assessment, said Board is authorized, after timely notice to all interested parties and after hearing all evidence offered, to reduce, increase or confirm the valuation fixed by the County Board. The valuation thus determined by the State Board is entered upon the fixed and permanent tax records "and shall constitute the valuation for taxation." G.S. § 105-329. Failure of the tax listers, or of the tax supervisor, to perform all duties imposed upon them in strict compliance with law does not give the taxpayer a tax-free year nor deprive the State Board (on appeal) of its authority "to reduce, increase, or confirm" the valuation fixed by the County Board. The State Board has full authority, notwithstanding irregularities at the county level, to determine the valuation and enter it accordingly. Such valuation so fixed is final and conclusive unless error of law or abuse of discretion is shown. Belk's Department Store, Inc. v. Guilford County, 222 N.C. 441, 23 S.E.2d 897. But judicial review of its administrative decisions is always available. In re Pilot Freight Carriers, 263 N.C. 345, 139 S.E.2d 633. When a judicial review is sought in the superior court on the record made before the State Board, as in this case, that court is without authority to make findings at variance with the findings of the State Board which are supported by material and substantial evidence because that is the exclusive function of the State Board of Assessment. G.S. § 143-315; In re Property of Pine Raleigh Corp., 258 N.C. 398, 128 S.E.2d 855.
Applying these legal principles, it is apparent that the Reeves property was last reassessed in 1962 and was subject to reassessment in 1965 because (1) it had increased more than $100 in value by virtue of improvements since its last assessment and (2) many sections of it had been subdivided *734 into lots on streets already laid out and open for travel, and sold or offered for sale as lots since the last assessment.
It is equally apparent that the 1965 list takers for Town Creek and Smithville Townships never placed a valuation on the Reeves property. The tax supervisor simply accepted the 1963 advertised selling price of the taxpayer itself, gave it a 35% reduction to establish the true market value of the lots in question, then gave it a developer's "depreciation" of 50%, and the lots were then assessed for taxation at 50% of that amount. In short, the 1965 assessed value for tax purposes is 16.25% of the 1963 advertised selling price of each lot. This was done after the tax supervisor had driven over the property several times and looked it over. The County Board of Equalization and Review had also made an inspection trip before finally adopting the tax valuations established by the supervisor. This valuation appears to be as favorable to Reeves, or more so, than the valuations placed upon the property of any other taxpayer mentioned in the record. It is therefore difficult to understand how Reeves is aggrieved by failure of the County to strictly follow the statutes in listing this property. But be that as it may, after careful consideration of all pertinent facts, evidence and testimony, the State Board of Assessment determined that "the valuation of Section 16 of the property and such portions of Sections 8 and 9 as do not represent lots on streets which were open to travel on January 1, 1965, [nor on a lake front,] should be valued on an acreage basis and appraised at $10 an acre. * * * [A]ny lots on swampy land not suitable for the use for which intended should be appraised at values which would reflect the cost of reclaiming the lots. * * * [A]ppraised values placed on all other property of appellant by Brunswick County are proper." The State Board thereupon remanded the taxpayer's appeal to Brunswick County for action in keeping with such order. Returning Section 16 to an acreage basis reduced the assessed valuation by $88,000. Further reduction in an undisclosed amount is effected with respect to Sections 8 and 9 and all lots on swampy lands. In this fashion the State Board determined the correct valuation of the Reeves property for tax purposes for 1965 as was its duty under G.S. § 105-275.
The decision of the State Board was supported by material and substantial evidence and was therefore binding on the superior court. In re Property of Pine Raleigh Corp., supra. The valuation as thus fixed is final and conclusive absent error of law or abuse of discretion. Belk's Department Store, Inc. v. Guilford County, supra. Abuse of discretion is not shown, and error of law prejudicial to the taxpayer does not appear. Even so, in the future Brunswick County would be well advised to follow statutory procedure prescribed by the Machinery Act for the listing and assessment of taxes. Had it done so in this instance, resort to the State Board would not have been necessary.
Brunswick County excepted to the "findings of fact and conclusions of law" contained in the judgment of the superior court and to the judgment itself. This was sufficient to present the record proper for review and to raise the question whether error of law appears on the face of the record. This is true even when the exceptions to the findings of fact are broadside, as in this case, and too general to be effective. In re Wallace's Estate, 267 N.C. 204, 147 S.E.2d 922; Vance v. Hampton, 256 N.C. 557, 124 S.E.2d 527; Town of Hertford v. Harris, 263 N.C. 776, 140 S.E.2d 420; Lowe v. Jackson, 263 N.C. 634, 140 S.E.2d 1. "An appeal is itself an exception to the judgment and to any matter appearing on the face of the record proper." 1 Strong's N.C. Index 2d, Appeal and Error, § 26, and cases cited. Here, error appears on the face of the judgment in that it contains findings of fact whereas the superior court is not empowered to make findings of fact. Nor does it have authority to decree that "the valuations as of January 1, 1964 be *735 that which said Brunswick County shall also place in effect as of January 1, 1965." The State Board of Assessment is the fact-finding body and not the superior court. The substantial rights of Reeves have not been prejudiced by the findings and conclusions of the State Board. It acted within its authority upon competent, material and substantial evidence, unaffected by error of law, and proceeded in a lawful way to adjudicate the basic question raised before it, viz., whether the tax assessment of the Reeves property was too high. The superior court was therefore in error when it failed to affirm the decision of that agency. G.S. § 143-315; In re Property of Pine Raleigh Corp., supra.
For the reasons stated, the judgment of the superior court is reversed. Judgment will be entered in the court below remanding the proceeding to Brunswick County for compliance with the order of the State Board of Assessment.
Reversed and remanded.


COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO.  2-06-123-CR

SHIRLEY GARCIA SMITH	APPELLANT

V.

THE STATE OF TEXAS	STATE

------------

FROM COUNTY CRIMINAL COURT NO. 7 OF TARRANT COUNTY

------------

MEMORANDUM OPINION
(footnote: 1)

------------

This case presents a new twist on an old schoolyard rhyme: Cast iron skillets may break my bones, but names will earn you jail time.  The trial court convicted Appellant Shirley Garcia Smith of assault-bodily injury for striking the complainant, Krista Daniels, with a cast iron skillet and sentenced her to a year in the county jail, probated for two years, a $1,000 fine, and 120 hours of community service.  As a condition of community supervision, the trial court ordered Appellant to serve ten days in jail for calling Daniels names.  In her sole point on appeal, Appellant argues that the ten-days-in-jail condition of community supervision is impermissible punishment for uncharged conduct.  We affirm.

Background

On April 27, 2005, Krista Daniels was driving home after visiting her husband at the hospital.  As she drove home, she observed a black Volvo being driven in an erratic manner, hitting the curb, speeding up, and slowing down. Daniels passed the Volvo when she had the opportunity to do so, as did several other drivers, and then drove home.  When she pulled into her driveway, the black Volvo pulled in after her, and Appellant—who was unknown to Daniels—got out and approached her.

Daniels asked Appellant if she could help her.  Appellant began yelling, “You bitch, you bitch . . . [y]ou almost killed me.”  Daniels asked Appellant what she was talking about, and Appellant yelled, “You nigger, you nigger, you need to go back where you came from.”  Appellant then spat on Daniels.  Daniels smelled a strong odor of alcohol on Appellant’s breath.

Daniels called 911 on her cell phone.  Meanwhile, Appellant went back to her car and released the dogs that were in her vehicle.  Daniels, who is afraid of dogs, retreated toward her own vehicle but tripped and fell.  As Daniels lay on the ground, Appellant retrieved a cast iron skillet from the Volvo, approached Daniels, and, wielding the skillet with both hands, struck her twice, once on the hand and once on the shoulder, while continuing to shout epithets. Appellant then collected her dogs, staggered back to her car, and—driving across Daniels’s grass—left the scene.

Police arrived soon after, and Daniels gave them the license number of the black Volvo.  A week later Daniels identified Appellant in a photo lineup. Appellant was charged with assault-bodily injury, and the case was tried to the bench.  The trial court found her guilty and, when announcing its decision, said, “I want you to know personally that I’m almost ashamed of myself for the things that you said to this lady, and I believe everything she’s told me . . . .  There is absolutely no justification in any day and age for [that] kind of racial slur[] and I can’t really think of anything that personally would horrify me more . . . .”  The court sentenced Appellant to a year in the county jail, probated for two years, a $1,000 fine, and 120 hours of community service.  Finally, as a condition of community supervision, the trial court ordered Appellant to serve ten days in the county jail, stating, “[A]nd that’s really for the name calling.”

Discussion

Appellant argues that the trial court erred by ordering her to serve ten days in jail as a condition of community supervision because the jail time was punishment  for an uncharged offense, the use of racial slurs.  Appellant did not object during trial to the additional ten days of confinement, but argues that no objection was required because the error is fundamental.
See Mendez v. State
, 138 S.W.3d 334, 338 (Tex. Crim. App. 2004) (noting that fundamental errors may be raised for the first time on appeal)
.

In general, article 42.12 grants broad discretion to trial judges to determine the conditions of community supervision.
Kesaria v. State
, 189 S.W.3d 279, 284 (Tex. Crim. App. 2006);
Tex. Code Crim. Proc. Ann
. art. 42.12 (Vernon Supp. 2006).
A complaint regarding a condition of community supervision must be raised at the time the condition is imposed, or it is forfeited.
 Speth v. State,
 6 S.W.3d 530, 534-35 (Tex. Crim. App. 1999),
cert. denied
, 529 U.S. 1088 (2000);
see also

Tex. R. App. P
. 33.1(a)(1)
.  But the probationer must be given a reasonable opportunity to object to the imposition of the condition.
Kesaria
, 189 S.W.3d at 282.

The record reflects that the trial court imposed the ten-day jail term as a condition of community supervision in open court while Appellant and her attorney were present; thus, Appellant had a reasonable opportunity to object to the condition.
See id.
  But Appellant did not object; therefore, she forfeited her complaint.
See Speth
,
6 S.W.3d at 534-35.
We overrule Appellant’s sole point and affirm the trial court’s judgment.

PER CURIAM

PANEL F:	GARDNER, HOLMAN, and WALKER, JJ.

DO NOT PUBLISH

Tex. R. App. P.
 47.2(b)

DELIVERED:  March 1, 2007

FOOTNOTES
1:See
Tex. R. App. P.
47.4.


509 F.Supp. 514 (1981)
DITTLER BROTHERS, INCORPORATED, Plaintiff,
v.
ALLENDALE MUTUAL INSURANCE COMPANY, Factory Mutual Engineering Corporation and Factory Mutual Engineering Association, Defendants.
Civ. A. No. C79-1652A.
United States District Court, N. D. Georgia, Atlanta Division.
March 17, 1981.
*515 Eugene G. Partain, David C. Garrett, III, Gary G. Grindler and W. Gordon Hamlin, Jr., Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., for plaintiff.
William H. Stanhope and A. James Anderson, Robins, Davis & Lyons, Atlanta, Ga., for defendants.

ORDER
ROBERT H. HALL, District Judge.
This case is before the court on defendants' motion for summary judgment. Jurisdiction being predicated on 28 U.S.C.A. § 1332, diversity of citizenship, Georgia law applies.
The issue presented in defendants' summary judgment motion is whether plaintiff's action was timely filed. The policy provides: "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss." This provision is valid and enforceable in Georgia. Herring v. Middle Georgia Mutual Insurance Co., 149 Ga.App. 585, 586, 254 S.E.2d 904 (1979). See also Forrester v. Aetna Casualty, 478 F.Supp. 42, 43 (N.D.Ga.1979).
Plaintiff's initial loss occurred on March 24, 1975, when a tornado hit its printing *516 plant. The defendants paid plaintiff $3,165,000.00 in insurance benefits for property damage and business interruption losses. Recognizing that all damages might not be immediately discoverable, defendants advised plaintiff that its insurance coverage would extend to later discovered damages caused by the tornado. In May or June 1977, plaintiff notified defendants of damage to certain parts of its Baker-Perkins printing press which they believed was caused by the tornado. The parties signed a non-waiver agreement and an investigation of the claim was conducted.
Defendants orally denied coverage of the printing press claim on December 14, 1977, and confirmed their denial of liability in a letter to plaintiff dated December 22, 1977. Seven months later on July 14, 1978, plaintiff asked defendants to attend a second meeting to discuss the loss. At that time plaintiff presented a new report in support of its claim that the damage to the printing press was a result of water damage sustained in the 1975 tornado. By letter of August 11, 1978, defendants again denied liability stating as follows: "Since [the July 14th meeting] we have again reviewed the matter with our consultant and also reviewed the data furnished by your company in support of your position. Our findings as outlined in earlier discussions have not changed .... We regret that we shall be unable to consider your claim as recoverable under the ... policy. In view of the above comments we plan no further adjustment activity." Nevertheless defendants attended a third meeting requested by plaintiff on September 11, 1978, but refused to change their position. On October 20, 1978, plaintiff summarized its position in a letter to defendants and indicated it was prepared to file suit if a reasonable settlement of the claim was not reached. Defendants denied its liability for a third time in a responsive letter to plaintiff dated November 10, 1978. Plaintiff's suit to recover repair costs and business interruption losses was filed on September 9, 1979.
Because defendants agreed to compensate plaintiff for later-discovered losses caused by the tornado, plaintiff's suit is not automatically barred for having been filed more than 12 months after "inception of the loss" on March 24, 1975. Rather, this case is controlled by the Court of Appeals decision in Looney v. Georgia Farm Bureau, 141 Ga.App. 266, 233 S.E.2d 248 (1977). The court held there that an insurance company's waiver of the limitation period during the period of negotiations does not result in a permanent waiver of the limitations period. Rather, the tolling of the limitations period ceases upon the insurer's denial of liability and the limitations period begins to run from that date. Id. at 267, 233 S.E.2d 248.
As stated above, the defendants first denied liability orally on December 14, 1977, and in writing on December 22, 1977. Plaintiff acknowledged these events in its complaint as well as in the depositions of its officers. Under the ruling in Looney, the twelve month suit limitations period began to run at this time. Nevertheless, despite the defendants' subsequent restatements of their denial of liability, twice orally and twice in writing, and plaintiff's letter indicating it would consider filing suit, all of which occurred prior to expiration of the 12-month period in December 1978, plaintiff failed to file suit until September 8, 1979. This was eight months after the limitations period had expired. Accordingly, this court finds that plaintiff's suit to recover its loss discovered in 1977 was not timely filed and is barred by the limitations provision contained in the policy. Id. at 267, 233 S.E.2d 248.
The Court of Appeals decision in Draughn v. United States Fidelity & Guaranty Co., 144 Ga.App. 272, 241 S.E.2d 52 (1977) confirms that the defendants' willingness to meet with plaintiff and consider its new evidence following its denial of liability in December 1977 does not per se require a different ruling. In Draughn the insurer denied liability nine days before expiration of the twelve-months suit limitation period. Three days before the time period expired, the insured's attorney notified the insurer that he would be filing suit *517 on behalf of the insurer. As revealed by a number of letters written by the insurer's counsel, discussions relevant to the claim occurred between the parties after expiration of the twelve-months period. Nevertheless, the court found that the plaintiff's suit, filed three months after expiration of the limitations period, was barred since throughout the discussions the insurer had continued to deny liability. Id. 144 Ga.App. at 273-274, 241 S.E.2d 52.
Furthermore, in order to extend the limitations period following an express denial of liability, plaintiff's evidence must show an "affirmative promise, statement or other act of the defendant or any evidence of actual or constructive fraud" which led the plaintiff into believing that the defendants intended to enlarge the limitations contained in the contract as to the time when suit must be filed. Johnson v. Georgia Farm Bureau Mutual Insurance Co., 141 Ga.App. 859, 861, 234 S.E.2d 693 (1977). Viewed most favorably to plaintiff, plaintiff's evidence as to the technical deficiencies in the procedures and findings of defendants' consultant investigating the loss and its contentions as to the defendants' pervasive bad faith are insufficient to establish any basis for estoppel or evidence of waiver on behalf of the defendants so as to enlarge the limitations period. See Draughn v. United States Fidelity & Guaranty Co., 144 Ga.App. at 274, 241 S.E.2d 52; General Ins. Co. of America v. Lee Chocolate Co., 97 Ga.App. 588, 589, 103 S.E.2d 632 (1958).
For the reasons stated above, defendants' motion for summary judgment is GRANTED. Our ruling on this motion renders moot plaintiff's discovery motions and motion to amend complaint.
So ORDERED.


927 F.2d 604
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Milton L. HINSON, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 90-6001.
United States Court of Appeals, Sixth Circuit.
March 5, 1991.

On Appeal From the United States District Court for the Middle District of Tennessee, 89-00082, Marton, J.
M.D.Tenn.
AFFIRMED.
Before BOYCE F. MARTIN, Jr. and BOGGS, Circuit Judges;  and ENGEL, Senior Circuit Judge.
PER CURIAM.

1
The plaintiff appeals from the Secretary of Health and Human Services' denial of social security disability benefits.  We affirm the denial of benefits for the reasons set forth below.

2
Claimant Milton L. Hinson first filed an application for disability insurance benefits on July 9, 1981.  The application was denied by an Administrative Law Judge (ALJ) on October 1, 1982.  The denial was affirmed by the district court on August 3, 1983.

3
Hinson filed a new application for disability benefits on June 15, 1987.  A hearing was held on May 12, 1988 before an ALJ, who found that Hinson was disabled after August 21, 1986, the date Hinson sought emergency room treatment for pneumonia.  Because Hinson's insured status had expired on March 31, 1983, however, the ALJ denied the application for disability benefits.  On appeal, the U.S. Magistrate and the district court affirmed the denial of benefits, granting the Secretary's motion for summary judgment.

4
Hinson suffers from chronic lung infections and other respiratory problems.  Also, a thumb and finger on his right hand were amputated in 1973.  He has not worked since 1979, though the ALJ concluded at the 1988 hearing that he could have continued to perform his duties as a security guard until 1986.  Hinson's primary physician, Dr. Robert Hollister, traced Hinson's respiratory infections to bronchiectasis, a chronic dilation of the bronchi, marked by coughing and fatigue.  Dr. Hollister treated Hinson from at least as early as 1981 through June 1986.

5
In reviewing the denial of disability benefits, we must accept the Secretary's findings of fact if they are supported by substantial evidence.  42 U.S.C. Sec. 405(g).  Additionally, we must be certain that the Secretary applied the proper legal standards.    Landsaw v. Secretary of Health and Human Services, 803 F.2d 211, 213 (6th Cir.1986).  This court may not retry the case de novo, nor resolve conflicts in the evidence, nor weigh questions of credibility, as long as the evidence is adequate to support the Secretary's conclusion.    Smith v. Secretary of Health and Human Services, 893 F.2d 106, 108 (6th Cir.1989).

6
In this case, the Secretary's review necessarily focused on the very limited time period between October 2, 1982 and March 31, 1983.  Before this period, the initial October 1, 1982 denial of disability benefits is res judicata for the present benefit application and the question of Hinson's date of disability.    See Siterlet v. Secretary of Health and Human Services, 823 F.2d 918 (6th Cir.1987).  After this six-month time period, Hinson no longer qualified for disability insured status under 42 U.S.C. Secs. 423(a)(1)(A) and (c)(1).

7
The ALJ considered Hinson's medical records and employment history.  Dr. Hollister completed a physical capacities evaluation of Hinson in December 1981 which indicated that Hinson could perform light work activity.  While Dr. Hollister testified that Hinson was totally and permanently disabled throughout the period of Hollister's treatment, the ALJ could properly conclude otherwise by weighing all of the evidence and making credibility determinations.  Dr. Hollister was unable to produce any office notes relating to Hinson for the period after January 1982.  Hinson therefore produced no new evidence from his treating physician which was not already presented at the time he was denied disability benefits in 1982.  The ALJ is not bound by a treating physician's conclusory statements.    Duncan v. Secretary of Health and Human Services, 801 F.2d 847, 855 (6th Cir.1986).

8
We conclude that the findings of the Secretary are supported by substantial evidence.  The ALJ weighed the conflicting medical evidence presented by three physicians, and reached reasonable factual conclusions in finding that Hinson had failed to show he could not perform his past duties as a security guard in the relevant 1982-83 time period, as required under 20 C.F.R. Sec. 404.1520(e) (1990).  The ALJ found that Hinson's former work as a security guard from 1977 to 1979 required walking and standing but no lifting.  This was supported by Hinson's own testimony.  Such work falls within the definition of sedentary work under the Secretary's relevant regulation, 20 C.F.R. Sec. 404.1567(a) (1990), and the medical evidence does not indicate that Hinson could not perform such work in 1982-83.

9
The Secretary also applied the correct legal standard in determining the onset date of Hinson's disability, which "must be fixed based on the facts and can never be inconsistent with the medical evidence of record".  Social Security Ruling 83-20 (Cumulative Ed.1983).  The selected onset date need only be supported by substantial evidence, and the Secretary does not have to refute evidence of another date that could have been selected.    See Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir.1989).

10
In this case, while the Secretary concedes that Hinson has chronic pulmonary problems, there was insufficient evidence to indicate that he was disabled during the relevant six-month period in 1982-83.  While Hinson may suffer from a chronic condition, he is not entitled to disability benefits unless he was actually disabled before the Secretary's selected onset date.    See Foster v. Bowen, 853 F.2d 483, 489 (6th Cir.1988).  The ALJ concluded that the severity of Hinson's respiratory problems, complicated by pneumonia, rendered him disabled only after August 21, 1986.  Thereafter, Hinson was unable to perform even sedentary work, as defined in 20 C.F.R. Sec. 404.1567(a) (1990).

11
Though sympathetic to Hinson's medical concerns, we cannot on the record presented conclude that the Secretary's findings for the relevant time period were not supported by substantial evidence.  There is no objective basis for concluding that Hinson's condition had worsened to the point of disability after October 1, 1982 and before March 31, 1983.  The judgment of the district court is AFFIRMED.


                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                                  October 14, 2009
                                  TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                    Clerk of Court

 JOHN J. GATES, as Trustee of
 Triumph Mortgage, Inc., Retirement
 Trust,

           Plaintiff-Appellant,

 v.
                                                          No. 08-3003
 SPRINT SPECTRUM, L.P.,                       (D.C. No. 2:05-CV-02340-CM-JPO)
                                                          (D. Kansas)
           Defendant-Appellee,

 and

 SPRINTCOM, INC.,

           Defendant.

                           ORDER AND JUDGMENT *

Before BRISCOE, SEYMOUR, and PORFILIO, Circuit Judges.

       In this diversity action, John Gates alleges that the presence of Sprint

Spectrum’s telecommunications equipment on his property constitutes a trespass.

The district court granted summary judgment to Sprint on the basis that the

       *
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with F ED . R. A PP . P. 32.1 and 10 TH
C IR . R. 32.1.
alleged injury took place prior to Mr. Gates’s acquisition of the property and that,

absent an assignment, a cause of action for trespass belongs only to the property

owner at the time of the injury. Without such an assignment, Mr. Gates lacked

standing to sue. Reviewing the district court’s grant of summary judgment de

novo, Butler v. Compton, 482 F.3d 1277, 1278 (10th Cir. 2007), we affirm.

      In April 1969, Houston Light & Power (“HLP”) obtained a prescriptive

easement on the property at issue in this case. The easement permitted HLP to

utilize the easement for the “purpose of [] supplying, transmission and

distribution of electric current, power and energy to the public.” Aplt. Br. at 3

(quoting Aplt. App. at 1-2). In May 1998, HLP leased space to Sprint for the

purpose of placing a cell phone antenna on an electricity transmission tower

located on the property. Later that year, in December 1998, Mr. Gates purchased

the property from the Federal Deposit Insurance Corporation’s Resolution Trust

Corporation. Although the installation of Sprint’s cell-phone antenna predated

Mr. Gates’s acquisition of the property, he did not initially notice its presence.

Upon discovering the antenna, Mr. Gates filed the instant trespass action seeking

the rental value of Sprint’s use of the land. Applying Texas law, the district court

held the alleged injury constituted a “permanent trespass,” a cause of action that

vests only in the property owner at the time of the injury. Given Mr. Gates’s

acknowledgment that Sprint put the equipment in place prior to his acquisition of

the property, the district court held Mr. Gates lacked standing to sue. This appeal

                                          -2-
followed.

      On appeal, Mr. Gates advances several challenges to the district court’s

grant of summary judgment to Sprint. Upon review, however, we discern no error

in the district court’s conclusion that the alleged injury is a permanent trespass

and therefore Mr. Gates lacks standing to pursue this action.

      “Because standing may be jurisdictional,” Coastal Oil & Gas Corp. v.

Garza Energy Trust, 268 S.W.3d 1, 9 (Tex. 2008), we address it first. “Whether a

trial court has subject matter jurisdiction is a question of law subject to de novo

review.” In Re Premcor Ref. Group, Inc. & Motiva Enter., 233 S.W.3d 904, 908

(Tex. App. 2007). As the district court concluded, and Mr. Gates does not

contest, “[Mr. Gates] acknowledges that the trespass–the intrusion onto plaintiff’s

property without consent or paying rent–occurred before he acquired the

property.” Aplt. Br. at 18 (citing Aplt. App. at 183-84). And as the Texas

appellate court held in In re Premcor, “a cause of action for injury to real

property is a personal right belonging only to the record owner of the real

property at the time of the injury . . . .” 233 S.W.3d at 909. No assignment of

any cause of action was made to Mr. Gates when he purchased the property.

      Mr. Gates’s standing to bring the instant case turns on the legal distinction

between “permanent” and “temporary” trespass as applied to this case. To the

extent that Sprint’s cell-phone antenna constitutes a trespass, it is undisputed that

Sprint placed the equipment on the property prior to Mr. Gates’s ownership of it.

                                          -3-
If the alleged trespass is temporary, Mr. Gates possesses standing to bring this

trespass action; if the trespass is permanent, Mr. Gates’s action is barred.

      Under Texas law, an injury to property should be deemed temporary only if

it is “so irregular or intermittent over the period leading up to filing and trial that

future injury cannot be estimated with reasonable certainty. Conversely, [the

claim] should be deemed permanent if it is sufficiently constant or regular (no

matter how long between occurrences) that future impact can be reasonably

evaluated.” Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 281 (Tex.

2004) (holding industrial plant emissions constituted a permanent nuisance). See

id. (applying same analysis to trespass). See also Krohn v. Marcus Cable

Assocs., L.P., 201 S.W.3d 876, 881 (Tex. App. 2006) (applying Schneider and

holding that placement of cable line across plaintiffs’ property was permanent

trespass). The district court characterized Mr. Gates’s injury as “permanent,”

reasoning that

      the future harm to the land was reasonably predictable from the time
      of the trespass because neither the existence nor the nature of the
      trespass changed over time.[] The injury in this case occurs often
      enough that in a suit for original trespass the jurors could make a
      reasonable estimate of the long-term impact of the trespass on the
      market value of the property, and under Texas law, ought to be
      allowed to do so.

Aplt. App. at 184-85.

      Mr. Gates challenges the district court’s determination that his injury is

“permanent,” arguing that “[c]learly the [district] court perceives the injury sued

                                           -4-
upon to be an injury to land. But . . . Gates sues for injury to his right of

possession. The injury to Gates’s possessory right occurred the day he took the

property and continues.” Aplt. Br. at 18. Mr. Gates’s challenge reflects a

misunderstanding of Texas laws governing trespass. Continued interference with

a property owner’s possessory interest does not render a trespass “temporary,” see

Krohn, 201 S.W.3d at 880-81, nor does it vest a subsequent property owner with a

cause of action in tort. Rather, as the Texas Supreme Court clarified in

Schneider, the issue is whether the “activity [is] of such a character and existing

under such circumstances that it will be presumed to continue indefinitely. . . . [A

trespass] is permanent if it is ‘constant and continuous’ and if ‘injury constantly

and regularly recurs.’” Schneider, 147 S.W.3d at 271-72. Mr. Gates has raised

no issue of material fact regarding the inconstancy or unpredictability of the

alleged trespass. Nor have we found any Texas case supporting his argument.

Mr. Gates’s claim for rent arises out of the alleged trespass, which occurred

before he acquired the property.

      Because the Sprint cell-phone antenna constitutes a permanent trespass, the

cause of action vested with the property’s prior owner and Mr. Gates possesses no

standing to bring the instant suit. We AFFIRM.

                                         ENTERED FOR THE COURT

                                         Stephanie K. Seymour
                                         Circuit Judge

                                          -5-