409 F.2d 1207
NATIONAL LABOR RELATIONS BOARD, Appellee,v.J. P. STEVENS & CO., Inc., Cleveland Cloth Mill, Respondent, andWilliam E. Blanton, on behalf of himself and two hundred and eighteen (218) other persons, employees of Cleveland Cloth Mill, Intervenors, Appellants.
No. 13223.
United States Court of Appeals Fourth Circuit.
Argued March 6, 1969.
Decided March 25, 1969.

W. S. Blakeney, Charlotte, N. C. (Blakeney, Alexander & Machen, Charlotte, N. C., on brief) for appellants J. P. Stevens and Cleveland Cloth Mill.
Horace Kennedy, Shelby, N. C. (Kennedy, Kennedy & Church, Shelby, N. C., on brief) for appellant William E. Blanton.
Leon M. Kestenbaum, Atty., N.L.R.B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Solomon I. Hirsh, Atty., N.L. R.B., on brief) for appellee.
Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges.
SOBELOFF, Circuit Judge:

1
J. P. Stevens & Company appeals from an order of the District Court enforcing a subpoena issued by the National Labor Relations Board to compel production of a list of names and addresses of those company employees who are eligible to vote in a forthcoming representation election. Additional appellants are 219 Stevens employees opposing production of the list who were permitted to intervene in the enforcement proceedings by the District Court.

2
In March, 1968, Textile Workers Union of America filed a petition in which it sought to represent employees at the company's Cleveland Cloth Mill in Shelby, North Carolina. Following a hearing, the Board's Regional Director ordered an election. He also directed the company to furnish a list of the names and addresses of all employees eligible to vote in the election, in accordance with the rule announced by the Board in Excelsior Underwear, Inc., 156 NLRB 1236 (1966). The company refused to comply with either the original production order of the Regional Director or the subsequent subpoena issued by the Board.

3
The Board then instituted this suit, pursuant to Section 11(2) of the Act, 29 U.S.C. § 161(2), to compel production of the list. A hearing was held, and the District Court subsequently permitted the intervention in the suit of 219 employees of the company who opposed the release of their names to the union. On November 15, 1968, the District Court ordered enforcement of the subpoena, relying on this court's decision in NLRB v. Hanes Hosiery Division — Hanes Corporation, 384 F.2d 188 (4th Cir. 1967). In Hanes, as in this case, a company facing a representation election refused to furnish a list of eligible employees to a union, as required by the Board's Excelsior decision. We there ordered production of the list, finding the Board's request to be an appropriate exercise of its authority over representation elections.

4
The appellants contend, however, that Hanes does not control here because of the intervention of the objecting employees, who claim that their rights will be violated if the union is given their names and home addresses. It is true that no employees intervened as parties in Hanes, but their rights were not ignored. In affirming the validity of the Excelsior rule, we specifically considered and rejected the company's argument in behalf of its employees that production of the list would violate their rights and give rise to harassment by the union. 384 F.2d at 191. Other circuits adjudicating Excelsior orders have dismissed similar assertions of employee rights. See, e. g., Howell Refining Co. v. NLRB, 400 F.2d 213, 216 n. 8 (5th Cir. 1968); NLRB v. Rohlen, 385 F.2d 52, 55 (7th Cir. 1967). Although in the present case the employees appear as intervenors in the litigation, they present no substantive arguments not already presented in behalf of employees to a number of courts.

5
The intervenors argue first that Section 7 of the Act, 29 U.S.C. § 157, guarantees them the right to refrain from assisting labor organizations, and that if the union is furnished their names and addresses they are being forced to aid the union in its campaign efforts. Affording the union an opportunity to communicate with the employees, however, does not encroach on their right to remain neutral. They are not required to read literature which the union may mail to them, or to speak to union representatives who may approach them at their homes.

6
Moreover, in the context of a representation election, an employee exercises his Section 7 rights most effectively by voting for or against representation. The Board promulgated the Excelsior rule in order to assure that the employee's freedom of choice in the election was not hampered by lack of information:

7
[A]n employee who has had an effective opportunity to hear the arguments concerning representation is in a better position to make a more fully informed and reasoned choice. Excelsior Underwear, Inc., 156 NLRB at 1237.

8
Release of the employee list to the union is not inconsistent with Section 7 but rather furthers its purposes.

9
The intervenors further contend that once the union obtains their names and addresses they will be subject to harassment at their homes in violation of their constitutional right to privacy. It is unlikely that a union seeking votes to be cast in a secret ballot election would alienate potential support by overly aggressive campaigning. Remedies are of course available if misconduct should occur. Excelsior Underwear, Inc., 156 NLRB 1236 (1966). However, the mere possibility that employees will be inconvenienced by telephone calls or visits to their homes is far outweighed by the public interest in an informed electorate. See NLRB v. British Auto Parts, 266 F.Supp. 368 (C.D.Cal.1967), aff'd, 70 LRRM 2065 (9th Cir. 1968); NLRB v. Beech-Nut Life Savers, Inc., 274 F.Supp. 432 (S.D.N.Y.1967), aff'd, 69 LRRM 2846 (2d Cir. 1968); cf. Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943).

10
The lack of merit in the intervenors' position is revealed by the manner in which they state their opposition to the production of the list. They assert that they are not "joiners" and merely wish to be left alone, taking no part in the election campaign. If the list does not issue, however, only the union is barred from carrying on an effective campaign. The company already has full access to all the employees and ample opportunity to present to them its side of the issues. As we said in Hanes, 384 F.2d at 191:

11
[F]airness in the elective process demands here, as it does in public or corporate elections, the opportunity of contesting parties to communicate their respective positions to the electorate. (Emphasis added.)

12
Failure to compel production of the list here would impede union campaign efforts while leaving the company free to communicate its point of view to all its employees.

13
The intervening employees have not persuaded us that any potential inconvenience resulting to them from release of their names and addresses to the union is sufficiently serious to justify curtailment of the union's opportunity to communicate with them. The order of the District Court is accordingly

14
Affirmed.


551 F.2d 300
Guerrav.Carter
No. 76-3052
United States Court of Appeals, Second Circuit
9/1/76

1
S.D.N.Y.

PETITION DENIED


133 S.W.3d 487 (2004)
Diane T. BENNETT, Appellant,
v.
Donald W. BENNETT, O.D., M.D., Appellee.
No. 2003-CA-000186-MR.
Court of Appeals of Kentucky.
February 13, 2004.
Case Ordered Published by Court of Appeals April 9, 2004.
*488 Vicki L. Buba, Stone, Pregliasco, Haynes, Buba, LLP, Louisville, KY, for Appellant.
Diana L. Skaggs, Melinda A. Whitton, Diana L. Skaggs & Associaties, Louisville, KY, for Appellee.
Before TACKETT and VANMETER, Judges; and MILLER, Senior Judge.[1]

OPINION
TACKETT, Judge.
Diane Bennett appeals from an order of the Jefferson Family Court granting summary judgment in favor of her former spouse, Donald Bennett, on Donald's motion to terminate maintenance payments to Diane due to her cohabitation with Charles Friedman. The parties had entered into a settlement agreement providing that Donald's obligation to pay maintenance would terminate upon the death of either party, Diane's remarriage, or her cohabitation. The trial court found that Diane and Friedman began cohabitating in July 2001 and terminated Donald's maintenance obligation as of that date. After a careful review, we affirm.
Diane and Donald executed a marital settlement agreement on August 23, 2000, and it was incorporated by reference into the decree dissolving their marriage which the trial court entered on October 23, 2000. Pursuant to that agreement, Diane received a six-figure settlement from Donald and additionally Donald was to pay maintenance to Diane until this obligation should be extinguished by one of the following: the death of either party, Diane's remarriage, or Diane's cohabitation with someone. No further definition of the term "cohabitation" was contained in the settlement agreement, and both parties were represented by counsel.
Donald paid maintenance to Diane in accordance with the settlement agreement until he learned of her relationship with Friedman which began sometime in 2001. On July 29, 2002, Donald filed a motion to terminate his maintenance obligation alleging that Diane was cohabitating with Friedman. Deposition testimony was taken from Diane regarding the details of her living arrangements with Friedman. Her testimony established that, since July 2001, Friedman had slept with Diane in her home every night unless he was out of town on business. Both parties moved for summary judgment and, on January 3, *489 2003, the trial court granted Donald's motion for summary judgment and terminated his maintenance obligation. This appeal followed.
In order to grant summary judgment, a trial court must determine that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Steelvest, Inc. v. Scansteel Service Center, Ky., 807 S.W.2d 476 (1991). The trial court had before it a wealth of undisputed facts with reference to the relationship between Diane and Friedman. In May 2001, Diane gave Friedman a ring for his birthday that may have cost as much as $1,000.00. In July 2001, Friedman began spending every night with Diane and kept his clothes at her house and their deposition testimony indicated that this was an exclusive, monogamous sexual relationship between the two of them since that time. Friedman also paid her housekeeper, who came three days a week, the sum of $720.00 a month for washing his clothes. Diane gave Friedman gifts every night during Hanukkah 2001, including a $500.00 watch. Friedman, a lawyer, twice provided legal services to Diane free of charge in matters relating to Donald's efforts to terminate maintenance even though he was not the attorney of record in this case. The couple took trips and vacations together as well, including a trip to Quebec which Diane paid for as a birthday gift to Friedman. According to the evidence, they slept in the same bed even when they visited relatives and friends. Friedman regularly used Diane's vehicles and had a charge card on her American Express account. The facts in this case are not at issue, but rather the interpretation of these facts.
Diane first argues that the facts before the trial court did not support a finding that she cohabitates with Friedman. She points out that Friedman is not yet divorced from his wife, that he maintains his own banking accounts, investments, and credit cards, and that his driver's license lists as his residence the location where his furniture is located. Consequently, she contends that the trial court's finding is based on the existence of a sexual relationship between the parties and disputes the sufficiency of such evidence to support a finding of cohabitation. Further, Diane maintains that we should adopt the definition, found in Black's Law Dictionary 6th Ed. (1991), of "cohabitation" as, "To live together as husband and wife. The mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, including but necessarily dependant on sexual relations." In support of her argument, she cites the Kentucky Supreme Court's decisions in Combs v. Combs, Ky., 787 S.W.2d 260 (1990) and Cook v. Cook, Ky., 798 S.W.2d 955 (1990).
In Combs, the former husband was under court order to pay maintenance and its duration was not limited by any agreement between the parties. Previously, the trial court had reduced Combs' maintenance obligation to his former wife from $1,000.00 per month to $800.00 per month and eventually to $500.00 per month. Combs filed a motion to terminate his maintenance obligation based on his former wife's cohabitation with someone else. However, since cohabitation is not grounds under the statute to terminate maintenance, the trial court was forced to determine whether the former wife's cohabitation provided her with a financial resource, as contemplated in Kentucky Revised Statute 403.200(2)(a), which would render Combs' continued maintenance obligation unconscionable. Despite the fact that the payment of maintenance in Combs was not governed by an agreement between the parties, Diane argues we are bound to consider the Combs Court's listed factors which indicate cohabitation. *490 The Kentucky Supreme Court determined in the Cook case, however, that Combs "is not of any relevance" in deciding whether or not conduct between a former spouse and her paramour amounts to cohabitation. Cook at 957.
The Cook case involved a separation agreement between the parties which included language terminating maintenance in the event the former wife cohabitated "with a non-relative adult male." Although the former wife was engaged in an exclusive sexual relationship, had accepted an engagement ring, and shared some financial resources with her paramour, the Court declined to find cohabitation. Diane argues that, since her relationship with Friedman does not provide her with a financial benefit and their finances are not similarly intertwined, the trial court erroneously found that she and Friedman were cohabitating. We disagree and quote from the following portion of the Cook Court's reasoning:
They do not live in the same household, and neither of them has assumed an obligation to pay the household bills or personal expenses of the other. They have not moved household furnishings from one household to the other. Although he visits in her home on most evenings, he returns to his own home to spend the night, and they do not engage in sexual relations when her son, who lives with her, is present in the home.
...
In addition to the fact that the conduct described above does not fit within the classic dictionary definition of cohabitation, it does not comport with the conduct that the appellant and the appellee intended by the word cohabitation as used in their contract. The intention of the parties must be gleaned from the words used by them in the agreement. We note by the terms of their agreement that only cohabitation with a nonrelative adult male would terminate maintenance. Cohabitation with a relative adult male would not terminate maintenance. This leads to the conclusion that the parties were not thinking of cohabitation in terms of sexual relationships because surely the agreement was not meant to condone sexual relations with an adult kinsman. Obviously, the parties intended cohabitation to mean "living in the same house," and thus living in the same house with an adult male relative would be permitted, whereas living in the same house with an adult male nonrelative would constitute cohabitation and would terminate maintenance.
Cook at 957. Diane and Donald did not include any definition of cohabitation in their separation agreement; however, her relationship with Friedman qualifies as cohabitation whether considered in light of sexual involvement or living in the same house. The evidence introduced from Diane and Friedman plainly indicated that he had spent every night with her in her house since July 2001 unless he happened to be out of town on business and unaccompanied by Diane.
Diane next argues in the event that we determine that the trial court did not err in finding that she is cohabitating with Friedman, that the date of July 2001 is not supported by the evidence. Although it is true that evidence of the ongoing nature of this relationship was produced before the trial court, in its January 2003 order granting Donald's summary judgment motion, the trial court simply states that cohabitation began in July 2001. Donald points out that generally a trial court's construction of a contract's terms is controlled by the parties' intentions at the time the contract was executed. Gibson v. Sellars, Ky., 252 S.W.2d 911 (1952). He argues that, when their separation agreement was negotiated, neither he nor Diane *491 knew of the esoteric definition of cohabitation found in Black's Law Dictionary. Looking at the four corners of the document, there is no indication that the parties intended to invest the term "cohabitation" with any special meaning beyond the ordinary meaning of the word itself. A review of the Webster's, Cambridge, American Heritage, and Princeton University dictionaries discloses that only one of them defines cohabitation in terms of living as husband and wife while the other three explicitly apply the term to a couple living together and not married to one another. Since it is undisputed that, as of July 2001, Friedman began spending every night with Diane in her home and keeping his clothes and personal items there, we decline to find that the trial court erred in fixing the date upon which their cohabitation began.
For the foregoing reasons, the judgment of the Jefferson Family Court is affirmed.
ALL CONCUR.
NOTES
[1]  Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.


                                                                            FILED
                             NOT FOR PUBLICATION                            MAR 01 2016

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

                              FOR THE NINTH CIRCUIT

MIGUEL CASTELLANOS MARTINEZ,                     No. 14-71384

               Petitioner,                       Agency No. A205-714-528

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.

                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted February 24, 2016**

Before:        LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.

      Miguel Castellanos Martinez, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

and denying his motion to remand. We have jurisdiction under 8 U.S.C. § 1252.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review for abuse of discretion the denial of a motion to remand. Romero-Ruiz

v. Mukasey, 538 F.3d 1057, 1062 (9th Cir. 2008). We deny the petition for review.

      The BIA did not abuse its discretion in denying Castellanos Martinez’s

motion to remand for failure to establish prejudice, where Castellanos Martinez

failed to explain what evidence prior counsel failed to submit that may have

affected the outcome of his proceedings. Martinez-Hernandez v. Holder, 778 F.3d

1086, 1089 (9th Cir. 2015) (finding the petitioner could not establish prejudice

where he had offered no argument or evidence to back up his claim for relief); see

also Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999) (denying the petition where

petitioners requested remand to explain eligibility for asylum, but failed to

establish what evidence they would present on remand).

      PETITION FOR REVIEW DENIED.

                                           2                                    14-71384


419 F.2d 388
UNITED STATES of America, Plaintiff-Appellee,v.Rick Allen APKER, Defendant-Appellant.
No. 23692.
United States Court of Appeals Ninth Circuit.
Dec. 10, 1969.

David M. Rothman (argued), Los Angeles, Cal., for defendant-appellant.
Michael J. Lightfoot (argued), Robert L. Brosio, Asst. U.S. Attys., Wm. Matthew Byrne, U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Before ELY and TRASK, Circuit Judges, and PENCE,1 District Judge.
PER CURIAM.

1
Apker, an inmate of a Federal Correctional Institution was charged, tried by jury, convicted of Attempted Escape under 18 U.S.C. 751 and sentenced therefor to 45 days imprisonment, to run consecutively to any other sentences previously imposed.

2
The evidence before the jury was more than sufficient to support its verdict that Apker was unequivocally activating what may have well been a foolhardy attempt to escape, when he was caught.  This court cannot fault that verdict.

3
That Apker, after being caught, may, thereupon and therefor have been placed in segregated confinement by the institutional officials for 37 days and subsequently convicted and sentenced to confinement by a Federal court for the same acts does not constitute 'double jeopardy' under the Fifth Amendment.  United States v. Shapiro, 383 F.2d 680, 683 (7th Cir.1967); Rush v. United States, 290 F.2d 709, 710 (5th Cir.1961); Mullican v. United States, 252 F.2d 398, 400, 70 A.L.R.2d 1217 (5th Cir.1958); Patterson v. United States, 183 F.2d 327, 328 (4th Cir.1950); Pagliaro v. Cox, 143 F.2d 900, 901 (8th Cir.1944).

4
Affirmed.

1
 Hon.  Martin Pence, Chief Judge, United States District Court, District of Hawaii, sitting by designation


        12-480
        Di v. Holder
                                                                                BIA
                                                                                Nelson, IJ
                                                                               A089 906 269
                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
     MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals
 2      for the Second Circuit, held at the Thurgood Marshall United
 3      States Courthouse, 40 Foley Square, in the City of New York,
 4      on the 28th day of March, two thousand thirteen.
 5
 6      PRESENT:
 7               JOSÉ A. CABRANES,
 8               BARRINGTON D. PARKER,
 9               RICHARD C. WESLEY,
10                    Circuit Judges.
11      _____________________________________
12
13      XIAN HUI DI,
14               Petitioner,
15
16                     v.                                      12-480
17                                                             NAC
18      ERIC H. HOLDER, JR., UNITED STATES
19      ATTORNEY GENERAL,
20               Respondent.
21      _____________________________________
22
23      FOR PETITIONER:                Lee Ratner, New York, New York.
24
25      FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
26                                     Attorney General; Richard M. Evans,
27                                     Assistant Director; Jeffrey J.
28                                     Bernstein, Trial Attorney, Office of
 1                            Immigration Litigation, Civil
 2                            Division, United States Department
 3                            of Justice, Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

 6   Board of Immigration Appeals (“BIA”) decision, it is hereby

 7   ORDERED, ADJUDGED, AND DECREED that the petition for review

 8   is DENIED.

 9       Xian Hui Di, a native and citizen of the People’s

10   Republic of China, seeks review of a January 18, 2012, order

11   of the BIA, affirming the March 17, 2010, decision of

12   Immigration Judge (“IJ”) Barbara A. Nelson, which denied her

13   application for asylum, withholding of removal, and relief

14   under the Convention Against Torture (“CAT”).    In re Xian

15   Hui Di, No. A089 906 269 (B.I.A. Jan. 18, 2012), aff’g No.

16   A089 906 269 (Immig. Ct. N.Y. City Mar. 17, 2010).    We

17   assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       Under the circumstances of this case, the Court should

20   consider both the IJ’s and the BIA’s opinions “for the sake

21   of completeness.”    Zaman v. Mukasey, 514 F.3d 233, 237 (2d

22   Cir. 2008).    The applicable standards of review are well-

23   established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

24   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

                                    2
 1       For asylum applications such as Di’s, governed by the

 2   REAL ID Act, the agency may, considering the totality of the

 3   circumstances, base a credibility finding on an asylum

 4   applicant’s demeanor, the plausibility of his   account, and

 5   inconsistencies in his statements, without regard to whether

 6   they go “to the heart of the applicant’s claim.”   8 U.S.C.

 7   § 1158(b)(1)(B)(iii).

 8       In finding Di not credible, the agency reasonably

 9   relied in part on her demeanor, finding that Di’s testimony

10   was often evasive, hesitant, and non-responsive. See Majidi

11   v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).   The IJ’s

12   demeanor findings were further supported by specific

13   examples of Di’s inconsistent testimony.   See Li Hua Lin v.

14   U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).     In

15   this regard, the agency reasonably found that Di failed to

16   provide a consistent account of her employment history in

17   China or to testify consistently regarding the year in which

18   she was unable to work because she was taking care of her

19   sick father.   See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167

20   (2d Cir. 2008) (per curiam).   Furthermore, the agency

21   reasonably relied on a discrepancy between Di’s asylum

22   application and testimony with regard to whether Di had been

                                    3
 1   in hiding continuously from the time that she discovered she

 2   was pregnant with her second child until that pregnancy

 3   allegedly was terminated, see Iouri v. Ashcroft, 487 F.3d

 4   76, 81-82 (2d Cir. 2007), as well as on an inconsistency

 5   between Di’s testimony and that of her witness, Pastor Xao

 6   Deng Pang, regarding the extent of their communications

 7   prior to her merits hearing, see Xiu Xia Lin, 534 F.3d at

 8   167.    A reasonable fact finder would not be compelled to

 9   credit Di’s explanations for these inconsistencies.       Majidi,

10   430 F.3d at 80-81.

11          The adverse credibility determination is further

12   supported by Di’s failure to present adequate corroboration

13   of her claims of a forced abortion; an arrest, detention,

14   and beating in 2007 for participating in underground church

15   activities; and joining the Faith Bible Church after her

16   arrival in the United States.       See Biao Yang v. Gonzales,

17   496 F.3d 268, 273 (2d Cir. 2007).

18          Ultimately, because a reasonable fact-finder would not

19   be compelled to conclude to the contrary regarding the

20   agency’s demeanor, inconsistency, and lack of corroboration

21   findings, the agency’s adverse credibility determination is

22   supported by substantial evidence.       See Xiu Xia Lin, 534

                                     4
 1   F.3d at 165-66.   The agency’s denial of Di’s application for

 2   asylum, withholding of removal, and CAT relief was not in

 3   error as all three claims shared the same factual predicate.

 4   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006)

 5   (withholding of removal); Xue Hong Yang v. U.S. Dep’t of

 6   Justice, 426 F.3d 520, 523 (2d Cir. 2006) (CAT).

 7       For the foregoing reasons, the petition for review is

 8   DENIED.   As we have completed our review, any stay of

 9   removal that the Court previously granted in this petition

10   is VACATED, and any pending motion for a stay of removal in

11   this petition is DISMISSED as moot. Any pending request for

12   oral argument in this petition is DENIED in accordance with

13   Federal Rule of Appellate Procedure 34(a)(2), and Second

14   Circuit Local Rule 34.1(b).

15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe, Clerk
17

                                    5


175 B.R. 755 (1994)
In re BARKLEY 3A INVESTORS, LTD., Debtor.
Bankruptcy No. 94-21060-11.
United States Bankruptcy Court, D. Kansas.
December 22, 1994.
Cynthia F. Grimes and David C. Seitter of Levy & Craig, P.C., Overland Park, KS, for debtor.
*756 Michael F. Flanagan of Polsineli, White, Vardeman & Shalton, Kansas City, MO, for PFL Life Ins. Co.
John E. Foulston, U.S. Trustee, Wichita, KS.

MEMORANDUM OPINION
JOHN T. FLANNAGAN, Bankruptcy Judge.
Barkley 3A Investors, Ltd., filed a voluntary Chapter 11 petition[1] on June 13, 1994, and continues in possession of its office building property under 11 U.S.C. §§ 1107 and 1108.[2]
PFL Life Insurance Company ("PFL") holds debtor's $2.5 million note secured by a mortgage and assignment of rents on the building property which is valued between $1.7 million and $2 million.[3] On June 16, 1994, PFL moved for an accounting, to sequester rents, and to terminate debtor's use of the rents. Although claiming that it already held a perfected security interest[4] in rents, on the same date PFL also filed and served a separate notice to perfect its security interest under 11 U.S.C. § 546(b). Debtor formally objected to PFL's motion to terminate its use of the rents and moved for emergency hearing on July 13, 1994. The ultimate question is whether the postpetition rents are "cash collateral" under § 363, and if so, the extent to which the debtor can use them.
To permit continued operation of the building pending this decision, the parties entered into an agreement in which PFL consented to the debtor's use of cash collateral under 11 U.S.C. § 363(c)(2)(A) and which provided PFL adequate protection under 11 U.S.C. § 363(c)(1). The Court approved the cash collateral agreement, denominated a Stipulation and Agreed Order, on July 21, 1994.
Under the agreement, debtor can use the rents in return for furnishing specific financial information; capping professional fees; maintaining insurance coverage; creating two real estate tax escrow funds; complying with an agreed upon budget; and paying PFL $5000 each month during the term of the agreement. Debtor agrees that PFL can apply the $5000 monthly payment to the debt in accordance with the loan documents. The agreement does not specify how the rents are to be applied to the debt under any future plan of reorganization.[5] PFL is free to pursue stay relief, dismissal of the case, and valuation of the collateral. The debtor has the right to challenge the validity of PFL's security interest at a later date agreeable to the parties.
The Court held a pretrial conference on July 20, 1994. Since the question was one of *757 law requiring no evidence, the parties agreed that the pretrial order should contain an agreed statement of the relevant factual events. Upon submission of the pretrial order, the parties filed briefs, and the Court heard oral arguments on September 22, 1994.
PFL claims to hold a valid, perfected, enforceable first priority security interest in both the debtor's real estate and rents. It alleges the security interest is perfected prepetition in Kansas by the filing of various loan documents so that it extends to postpetition rents under 11 U.S.C. § 552(b). If the security interest is not already perfected, PFL claims to have perfected by timely filing a § 546(b) notice after the petition date. PFL says the debtor cannot avoid its security interest in the rents under 11 U.S.C. § 544 if it is perfected under one of these theories. If these positions fail, PFL relies on Kansas Statutes Annotated § 58-2343 to resolve the perfection issue in its favor. Finally, PFL wants an order that the postpetition rental income is cash collateral under § 363(a).
The debtor denies that the postpetition rental income is cash collateral. If it is cash collateral, the debtor claims that PFL is adequately protected or its security interest should be avoided by the equities of the case. Debtor reasons that the rents are not cash collateral because PFL failed to get a state court receiver appointed or to take equivalent action prior to the petition date. If this is correct, debtor claims it can avoid PFL's security interest in postpetition rents under § 544. Debtor further contests that PFL's notice under § 546(b) has the effect of perfecting the security interest in rents and that § 552(b) extends the interest to postpetition rents. In the alternative, debtor argues that PFL perfected its security interest by filing the § 546(b) notice and it would not apply to rents accumulated prior to that date. Finally, debtor claims that since the mortgage and the assignment of rents were recorded before the effective date of K.S.A. § 58-2343, the statute does not apply to this case to perfect the security interest in the rents.
The issues joined by these contentions are:
A. Whether under Kansas law a state court receiver must be appointed prior to the filing of a bankruptcy case in order for the postpetition rents to be cash collateral.
B. If not, whether the filing of a § 546(b) notice establishes an enforceable security interest in postpetition rents such that they become cash collateral.
C. Whether the recording of an assignment of rents in the appropriate office establishes a perfected security interest in rents which requires them to be treated as cash collateral in a subsequent bankruptcy proceeding.
D. Whether K.S.A. § 58-2343 operates retroactively upon this transaction, which was closed prior to the statute's enactment, to effect a perfected security interest in the postpetition rents.
E. Whether 11 U.S.C. § 552(b) extends PFL's security interest to the postpetition rents and, if so, what "equities of the case" must exist for a court to cut off such security interests in postpetition rents.
F. Whether the creditor's interest in the rents is adequately protected.
With the exception of the adequate protection issue, these questions depend primarily upon state law for their resolution. A number of published and unpublished court decisions in Kansas have pondered these state law issues. See, e.g., In re Wiston XXIV Ltd. Partnership, 141 B.R. 429 (Bankr.D.Kan. 1992) (Pusateri, J.); In re American Freight System (AFS v. P.A. Bergner & Co.), Case No. 88-41050, Adv. No. 90-7436 (Bankr. D.Kan. Sept. 27, 1991) (Pusateri, J.) (unpublished); In re Villa West Associates, L.P., No. 88-40614-11 (Aug. 19, 1988) (Pusateri, J.) (unpublished); In re Glessner, 140 B.R. 556 (Bankr.D.Kan.1992); In re Foxhill Place Associates, 119 B.R. 708 (Bankr.W.D.Mo. 1990) (Missouri bankruptcy court interpreting Kansas law); In re Stanley Stations, 139 B.R. 990 (Bankr.D.Kan.1992); and In re Stone Ridge Associates, Ltd. Partnership, 142 B.R. 967 (Bankr.D.Kan.1992).
The latest published decision is the district court opinion of In re Wiston XXIV Ltd. Partnership, 147 B.R. 575 (D.Kan.), appeal dismissed 988 F.2d 1012 (10th Cir. *758 1993).[6] In reversing the bankruptcy court, Judge Saffels held that a mortgagee has a perfected security interest in postpetition rents although it fails to obtain the appointment of a receiver before the filing of the bankruptcy case. The decision does not cite this Court's earlier opinion of In re Stanley Stations, 139 B.R. 990 (Bankr.D.Kan.1992), which gave considerable attention to the status of Kansas law while concluding that such an appointment or equivalent action is necessary for a Kansas mortgagee to have an enforceable lien against post-bankruptcy petition rents. However, a decision of a single district judge in a multi-judge district is not the law of the district and this Court is not bound to follow Judge Saffels' opinion.[7]
In the case at bar, however, it is unnecessary to follow Wiston or to revisit the state law questions. Instead, I can decide this case by assuming, without deciding the state law questions, that PFL holds a valid, perfected prepetition security interest in the rents.[8] The result of this assumption is that PFL's prepetition security interest in the debtor's rents extends under present § 552(b) to postpetition rents, giving them cash collateral status and restricting their use under § 363. The question then becomes whether PFL is entitled to adequate protection of its interest in the rents.
The Hon. James F. Queenan, Jr., has answered this question in In re Mullen, 172 B.R. 473 (Bankr.D.Mass.1994).[9] In Mullen, BayBank held notes, mortgages, and assignments of rent secured by four commercial properties owned by G. Burton Mullen. BayBank was entitled upon default to collect unpaid rents that were due and all rents thereafter accruing. Mullen defaulted and, before BayBank could foreclose or obtain appointment of a receiver, he filed under Chapter 11 on April 12, 1993. Mullen maintained the properties well and kept taxes and insurance current. There was no suggestion that either the property itself or the rental income streams were declining in value.
Debtor's notes totaled $3.5 million, and the fair market value of the several properties was $2.84 million. Because of these numbers and the confusion caused by some preference claims, the court found BayBank to be undersecured.
BayBank moved for adequate protection of its interest in the rents, seeking turnover or escrow of the "net rents." BayBank said that it had a present right to collect the rents and that it was being denied adequate protection by the stay preventing collection. Judge Queenan labeled this position a red herring designed to draw attention away from adequate protection principles. He stated that even if the bank had a present right to collect rents outside of bankruptcy, this did not mean that denial of the exercise of the right constituted denial of adequate protection. He saw that in collecting rents, a *759 lender holding a rent assignment is realizing upon the collateral; therefore, it is foreclosing on a security interest under another name. A lender is not entitled to do this unless there is cause, including lack of adequate protection, to vacate the stay to allow foreclosure.
The question as put by Judge Queenan was "whether BayBank's adequate protection rights concerning rents should be considered separately or as part of the adequate protection of its security interest in the Debtor's entire property interests, including the stream of future rents." 172 B.R. at 474. BayBank's position, the judge said, incorrectly assumed that a mortgagee holding a rent assignment had adequate protection rights in the rents which are independent of its right to adequate protection of its security interest in the debtor's entire interest in the property, including the debtor's right to collect rents. This assumption ignored the difference between a security interest in a stream of rents and realization upon that security interest. The opinion pointed out that while adequate protection is not defined in the Code, § 361 furnishes examples of its meaning. Adequate protection under § 361 may be provided by ". . . (2) providing to such entity an additional or replacement lien to the extent that such stay, use, sale, lease, or grant results in a decrease in the value of such entity's interest in such property." What must be given adequate protection, then, is the creditor's "interest in property." 11 U.S.C. § 361(2).
The court said that the value of the creditor's interest must be declining for adequate protection to be necessary. The undersecured creditor does not lack adequate protection merely by reason of being undersecured. United Sav. Ass'n of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988).
In response to BayBank's claim that its rent assignment gave it a right to adequate protection independent of the adequate protection rights of its overall security interest under the mortgage and rental assignments, the court said:
BayBank says the value of its interest in the Debtor's property declines each time the Debtor consumes a month's rent in its operations. This is not so. Although BayBank loses its security interest in each month's rents as the rents are consumed, BayBank retains its security interest in all future rents. The value of that stream of future rents is not declining. The lien on each month's rents replaces the lien on the prior month's rents, so there is a replacement lien of equal value, within the meaning of section 361.
What BayBank actually wants to do is to now realize upon its security interest in rents. In United Savings Association of Texas v. Timbers of Inwood Forest Associates, Ltd., the Supreme Court held a secured creditor's "interest in property" does not include the right to immediate possession of collateral or its proceeds at foreclosure. By the same token, "interest in property" does not include the right to immediate possession of rents.
In re Mullen, 172 B.R. 473, 476-77 (Bankr. D.Mass.1994) (footnote omitted).
The judge then mentions cases in which the rents are used to maintain the property, a situation not generally held to be a denial of adequate protection. In this context, Judge Queenan identifies as most helpful those cases concerning the proper application of consensual payments made to the mortgage holder during the case, when the property is not declining in value, citing as an example In re IPC Atlantic Limited Partnership, 142 B.R. 547 (Bankr.N.D.Ga.1992). In IPC, the debtor made eight voluntary payments during the case, even though the value of the property was not declining. The debtor's plan then proposed to apply the payments to the first eight mortgage payments due after confirmation. The creditor claimed that it had a separate category of collateral in the rents and that the voluntary payments offset the rents used to maintain the property and should not reduce the debt at all. The court in IPC applied the payments against the debt because it viewed the security interest as a whole, treating it as one security interest obtained on the mortgage and the rents. Because the value of the *760 overall interest was not declining, the court in IPC held there was no lack of adequate protection, citing Timbers. Not applying the payments against the debt would allow the creditor to receive more than the amount of its secured claim.
Judge Queenan compares rents to receivables or inventory as handled in financing agreements. So long as the value of the stream of future accounts or inventory and their proceeds is not declining, an undersecured receivables or inventory lender is not denied adequate protection by having its lien extended to postpetition accounts and inventory. The newly generated receivables are subjected to a lien by agreement so the present proceeds can be used and there is no lack of adequate protection. The new proceeds are used to generate new collateral and new proceeds, and the lender cannot complain about the consumption of any particular proceeds. The same is true with rents. The next month's rents are automatically subject to the lien under § 552(b). Rents and receivables constantly renew themselves. So long as the debtor is not operating at a loss, or rents are not declining, the renewals provide constant value.
Another reason given for this gestalt view of a security interest is that the value of the accruing rents is an integral part of the value of the real estate itself. Appraisers arrive at their values by determining what sum represents the property's annual net income potential, and then capitalizing that amount by multiplying it by a rate which represents a reasonable percentage return on investment. As a variation, they also use a discounted cash flow analysis. Under either approach, the rental income is determinative. It is thus impossible to arrive at a value of BayBank's interest in rents which is independent of the value of its mortgage interest in the property. 172 B.R. at 478.
As a second holding in Mullen supporting denial of turnover or escrow of net rents, Judge Queenan found that it would be inequitable for BayBank to have a security interest in each month's rents rather than have them used by the debtor and replaced by BayBank's security interest in rents of the following month. The court reviewed the legislative history covering the last sentence of § 552(b) and concluded that by that language, Congress had in mind protecting against secured creditors improving their positions. Congress was said to be concerned about the situation where the estate spends money and thereby causes an enhancement in proceeds or rents which improves the position of the secured party. The court said:
BayBank's continuing security interest in a stream of post-petition rents does not improve its position. This is the same security interest in rents it had before the petition filing date. The value of that rental stream may be increasing through additional tenancies brought on by the Debtor's ongoing management. But there is nothing inequitable about that. The parties presumably intended the value of BayBank's security interest to be dependent, at least in part, on the Debtor's management skills.
BayBank's position would dramatically change, however, should I grant its request for a turnover or escrow of net monthly rents. Because BayBank is undersecured and thus not entitled to interest, BayBank would be required to apply any net rents so received to principal [citing Oaks Partners, Ltd., 135 B.R. 440 (Bankr.N.D.Ga.1991)]. During each month, therefore, BayBank would substantially improve its position. Its debt would decline, yet its security value would remain constant. This would be at the expense of the estate, which would still be harnessed with operating the properties. BayBank's security interest in rents would be thereby changed from one that fills and empties each month to one that increases, indeed is realized upon, incrementally. Extension of BayBank's post-filing security interest in that fashion would be inequitable. The inequity is present even though the estate's expenses for each month are deducted before the monthly turnover or escrow. Reserves for replacement are often necessary. Even with the deduction of any such reserves, however, the paramount inequity would remain. BayBank would be enjoying the fruits of the Debtor's labor while BayBank in effect conducts a gradual foreclosure *761 at a time when its security value remains constant.
172 B.R. at 479 (footnotes omitted).
Thus, Judge Queenan answered his original question by holding that the mortgagee's unitary security interest in the real property and the rents was adequately protected by a replacement lien in future rents, and alternatively, that the turnover or escrow would have brought about an increase in the value of BayBank's security interest that was inconsistent with the "equities of the case" within the meaning of § 552(b) of the Code.
As Judge Saffels noted in Wiston,[10] "Under Kansas law, an assignment of rents to secure payment of a mortgage debt is deemed part of the mortgage, and is enforceable only in accordance with the law relating to foreclosure of mortgages."[11]See also In re Stanley Stations, 139 B.R. 990 (Bankr. D.Kan.1992), which notes that in Kansas, mortgage rents issues are controlled by real estate law, not the Uniform Commercial Code.[12]
It follows that a Kansas mortgage containing a rents assignment clause or a rents assignment taken with a mortgage as security is consistent with the unitary security interest view unveiled in Mullen.
In this case, as in Mullen, the lender makes no contention that the value of the real property or the rental stream is declining nor has the Court seen any indication in counsel's statements or the pleadings to this effect.
Assuming, without deciding the state law issues, that PFL's security interest is valid and perfected, it attaches automatically to future rents by force of § 552(b). Consequently, PFL's security interest in the real property and rents is adequately protected by its extension to future rents and a contrary result would be improper under the equities of the case. PFL's motion to terminate debtor's use of the postpetition rents is denied.
The Court finds that this proceeding is core under 28 § U.S.C. 157 and that the Court has jurisdiction under 28 U.S.C. § 1334 and the general reference order of the District Court effective July 10, 1984 (D.Kan.Rule 705).
The foregoing discussion shall constitute findings of fact and conclusions of law under Fed.R.Bankr.P. 7052 and Fed.R.Civ.P. 52(a).
IT IS SO ORDERED.
NOTES
[1]  PFL did not initiate a foreclosure (and therefore did not seek appointment of a receiver) before the debtor filed its petition in this case.
[2]  The debtor, Barkley 3A Investors, Ltd., appears by its attorneys, Cynthia F. Grimes and David C. Seitter of Levy & Craig, P.C., Overland Park, Kansas. PFL Life Insurance Company appears by its attorney, Michael F. Flanagan of Polsinelli, White, Vardeman & Shalton, Kansas City, Missouri.
[3]  In Kansas, an assignment of rents given with a mortgage is an assignment for security, not an absolute transfer. Hall v. Goldsworthy, 136 Kan. 247, 14 P.2d 659 (1932); Mid Kansas Federal Savings and Loan Ass'n v. Zimmer, 12 Kan. App.2d 735, 755 P.2d 1352 (1988); see also In re Wiston XXIV Ltd. Partnership, 147 B.R. 575 (D.Kan.1992), appeal dismissed 988 F.2d 1012 (10th Cir.1993); In re Stone Ridge Associates, Ltd. Partnership, 142 B.R. 967 (Bankr.D.Kan. 1992).
[4]  Under Bankruptcy Code § 101(50), "security agreement" means "agreement that creates or provides for a security interest." Under § 101(51), "security interest" means "lien created by an agreement." The Code therefore classifies a Kansas mortgage and rent assignment as a security agreement and the mortgage lien as a security interest. In this opinion, the mortgage lien will be referred to as a security interest, but this convention should not be taken to imply that personal property is in any way involved.
[5]  There is considerable difference of opinion about whether rents are included in the value of the collateral and how they are to be applied at the confirmation stage of the case. For examples, see In re Club Associates, 107 B.R. 385 (Bankr.N.D.Ga.1989); In re Landing Associates, Ltd., 122 B.R. 288 (Bankr.W.D.Tex.1990); In re Flagler-at-First Associates, Ltd., 114 B.R. 297 (Bankr.S.D.Fla.1990), which can be read to represent one approach while In re Reddington/Sunarrow Ltd. Partnership, 119 B.R. 809 (Bankr. D.N.M.1990); In re Oaks Partners, Ltd., 135 B.R. 440 (Bankr.N.D.Ga.1991); and In re Vienna Park Properties, 976 F.2d 106 (2nd Cir.1992), can be read to represent another.
[6]  With the passage of the Bankruptcy Reform Act of 1994, such enquiries into state law may decrease. Congress changed the Code by adding § 552(b)(2), a provision dealing with rents separately from other forms of collateral. Although § 552(b)(2) does not apply here because it was enacted on October 22, 1994, after this case was filed, the new subsection will probably change the focus of future litigation of the cash collateral status of rents. Under § 552(b)(2), a creditor holding a security agreement which by its terms extends to pre- and postpetition rents will have a security interest in postpetition rents that are cash collateral. The phrase "applicable nonbankruptcy law" does not appear in the new subsection, as it did in the prior section, so with the addition of § 552(b)(2), courts will not look to state law to decide whether a prepetition security interest extends to postpetition rental income.
[7]  Threadgill v. Armstrong World Industries, Inc., 928 F.2d 1366, 1371 (3rd Cir.1991) (a bankruptcy judge is not bound to follow a decision of a single district judge of his district); In re Gaylor, 123 B.R. 236 (Bankr.E.D.Mich.1991); In re Rheuben, 128 B.R. 551 (Bankr.C.D.Calif.1991); In re Hubbard, 23 B.R. 671, 673 (Bankr.S.D.Ohio 1982); In re Argo Communications Corp., 134 B.R. 776 (Bankr.S.D.N.Y.1991); In re Davis, 134 B.R. 34 (Bankr.W.D.Okla.1991); In re Shattuc Cable Corp., 138 B.R. 557 (Bank.N.D.Ill.1992); In re Shubert, 147 B.R. 618 (Bankr.N.D.Ga. 1992); In re Abernathy, 150 B.R. 688 (Bankr. N.D.Ill.1993); In re Johnson, 140 B.R. 850 (E.D.Penn.1992); Fox v. Acadia State Bank, 937 F.2d 1566 (11th Cir.1991).
[8]  If counsel feel the need to have these issues decided later in the case, notwithstanding the ruling in this opinion, they may reassert them.
[9]  Mullen was decided before the Bankruptcy Reform Act of 1994 added § 552(b)(2) to § 552.
[10]  In re Wiston XXIV Ltd. Partnership, 147 B.R. 575, 579 (D.Kan.1992).
[11]  Citing "Hall v. Goldsworthy, 14 P.2d at 661; cf. First Federal Savings and Loan Ass'n v. Moulds, 202 Kan. 557, 451 P.2d 215, 219 (1969) (right to possession and to rents and profits of property being foreclosed is in defendant owner and except for waste, is absolute); Capitol Building and Loan Ass'n v. Ross, 134 Kan. 441, 7 P.2d 86, 87 (1932) (mortgagor's right to possession of property during redemption period includes right to rents and profits, which cannot be waived by any provision of the mortgage); and Mid Kansas Federal Savings and Loan Ass'n v. Zimmer, 12 Kan.App.2d 735, 755 P.2d 1352, 1355 (1988) (separate assignment of rents, executed at same time as note and mortgage, is subject to statute prohibiting waiver of redemption in any mortgage instrument)."
[12]  "Bankruptcy courts applying other states' adopted versions of the Uniform Commercial Code generally agree that rent assignment clauses in real estate mortgages do not create liens against personal property subject to the Uniform Commercial Code's security interest rules. First Federal Savings v. City National Bank, 87 B.R. 565 (W.D.Ark.1988). In re Porter, 90 B.R. 399 (N.D.Iowa 1988). The Kansas version of the U.C.C appearing at K.S.A. 84-9-104 likewise expressly does not apply `(j) . . . to the creation or transfer of an interest in or lien on real estate, including a lease or rents thereunder.' Thus, the Court will look to Kansas real estate mortgage law for the nature and extent of MBL's right to possession of the rents here at issue." 139 B.R. at 993.


Opinion filed December 20, 2007

Opinion filed December 20,
2007

                                                                        In The

    Eleventh
Court of Appeals
                                                                   __________

                                                          No. 11-07-00133-CR
                                                    __________

                               GREGORY
WESTBROOKS, Appellant

                                                             V.

                                        STATE
OF TEXAS, Appellee

                                        On
Appeal from the 252nd District Court

                                                       Jefferson
County, Texas

                                                    Trial
Court Cause No. 84528

                                                                   O
P I N I O N

This
is an appeal from a judgment adjudicating guilt.  Gregory Westbrooks originally
waived trial by jury and entered a plea of guilty to the offense of indecency
by exposure with a child.  Pursuant to the plea bargain agreement, the trial
court deferred the adjudication of appellant=s
guilt and placed him on community supervision for four years.  At the hearing
on the State=s motion
to adjudicate, appellant entered pleas of true to the State=s allegations.  The trial
court found that appellant had violated the terms and conditions of his
community supervision, revoked his community supervision, adjudicated his
guilt, and assessed his punishment at confinement for ten years.  We affirm.
Appellant=s court-appointed counsel
has filed a motion to withdraw.  The motion is supported by a brief in which
counsel professionally and conscientiously examines the record and applicable
law and states that he has concluded that the appeal is frivolous.  Counsel has
provided appellant with a copy of the brief and advised appellant of his right
to review the record and file a response to counsel=s brief.  A response has been filed.
Court-appointed counsel has complied with the requirements of Anders v.
California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503
(Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App.
1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous
v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Eaden v. State, 161
S.W.3d 173 (Tex. App.CEastland
2005, no pet.).

In
his response, appellant contends that the indictment was illegally amended,
that the indictment was void on its face, that the trial court lacked
subject-matter jurisdiction, that he suffered Adeliberate
depravating [sic] indifference by nonfeasance of office@ when the Atrial
court did not issue@
the reporter=s record,
that the trial court abused its discretion and Aturned
a blind eye@ in
sentencing him to confinement for ten years, that he was denied his due process
rights because he did not have a jury trial, and that he has been denied
effective assistance of counsel.   We note that the hearing on the State=s motion to adjudicate was
conducted prior to the June 15, 2007 effective date of the amendment to Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2007)
allowing an appeal from the determination to adjudicate.  Therefore, former Tex. Code Crim. Proc. art. 42.12, ' 5(b) (1999) and its
prohibition concerning appeals from the determination to proceed with the
adjudication of guilt apply.[1] Davis v.
State, 195 S.W.3d 708, 709 (Tex. Crim. App. 2006); Hargesheimer v. State,
182 S.W.3d 906, 909 (Tex. Crim. App. 2006); Hogans v. State, 176 S.W.3d
829, 831 (Tex. Crim. App. 2005); Phynes v. State, 828 S.W.2d 1, 2 (Tex.
Crim. App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim.
App. 1992).  All of appellant=s
contentions as they relate to proceedings before the adjudication of guilt and
to the actual decision to adjudicate guilt are not properly before this court
and are dismissed for want of jurisdiction.  To the extent that appellant=s arguments challenged
actions subsequent to the adjudication of guilt, each is overruled.  Nothing in
the record supports appellant=s
contentions that he has been afforded ineffective assistance of counsel at any
level.  In fact, the clerk=s
record and the multiple volumes of the reporter=s
record support the conclusion that all counsel has provided reasonably
effective assistance of counsel.  Wiggins v. Smith, 539 U.S. 510, 520
(2003); Strickland v. Washington, 466 U.S. 668, 690 (1984); Andrews
v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Hernandez v. State,
988 S.W.2d 770 (Tex. Crim. App. 1999).  The trial court assessed punishment
within the range authorized by the legislature under Tex. Penal Code Ann. ''
12.34 and 21.11(a)(2) (Vernon 2003). A penalty assessed within the range of punishment established by the
legislature will not be disturbed on appeal. Jackson v. State, 680
S.W.2d 809 (Tex. Crim. App. 1984); Bradfield v. State, 42 S.W.3d
350, 354 (Tex. App.CEastland
2001, pet. ref=d.).
All of
appellant=s contentions and issues have been
considered.  Each is either dismissed for want of jurisdiction or is overruled.
Following the
procedures outlined in Anders, we have independently reviewed the
record, and we agree that the appeal is without merit.  We note that counsel
has the responsibility to advise appellant that he may file a petition for
discretionary review by the Texas Court of Criminal Appeals.  Ex parte Owens,
206 S.W.3d 670 (Tex. Crim. App. 2006).  Likewise, this court advises appellant
that he may file a petition for discretionary review pursuant to Tex. R. App. P. 66.  Black v. State,
217 S.W.3d 687 (Tex. App.CEastland
2007, no pet.).
The motion to
withdraw is granted, and the judgment of the trial court is affirmed.

PER
CURIAM
December 20,
2007
Do not
publish.  See Tex. R. App. P.
47.2(b).
Panel consists of:  Wright, C.J.,
McCall, J., and Strange, J.

[1]Former Article 42.12, section 5(b)
provided:
On violation of a condition of
community supervision imposed under Subsection (a) of this section, the
defendant may be arrested and detained as provided in Section 21 of 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 (emphasis added).


184 Cal.App.3d 1491 (1986)
228 Cal. Rptr. 376
MARVIN G. FRAZIER et al., Plaintiffs and Appellants,
v.
CITY OF RICHMOND et al., Defendants and Appellants.
Docket No. A032128.
Court of Appeals of California, First District, Division Three.
July 22, 1986.
*1494 COUNSEL
Duane W. Reno, Davis & Reno and Davis, Reno & Courtney for Plaintiffs and Appellants.
Malcolm Hunter, City Attorney, and Wayne S. Nishioka, Assistant City Attorney, for Defendants and Appellants.
OPINION
MERRILL, J.
In this class action on behalf of all current and retired police officers and firefighters of the City of Richmond and their successors in interest/beneficiaries who are members of a pension plan set forth in article XI of the City of Richmond Charter, the trial court determined (1) that the "salary" used to compute retirement allowances under article XI should include the holiday pay and uniform allowances provided to current police and fire department employees and (2) that City of Richmond payments for group life and disability insurance and contributions toward health, medical, dental, hospitalization and prescription drug plans should not be deemed "salary" for retirement computation purposes. Plaintiffs Marvin G. Frazier et al. (hereafter Officers) appeal from the latter determination. Defendant City of Richmond (hereafter City) appeals from the former.

I
This action was initially filed on March 25, 1982. Officers subsequently filed a fourth amended complaint (hereafter Complaint) on August 1, 1983, in which they requested a declaration of their rights under article XI of the *1495 City of Richmond Charter and petitioned for a writ of mandate to compel the payment of proper retirement allowances pursuant to article XI. An order certifying the case as a class action was made on December 5, 1983. Notice of this order was provided to all absent class members on January 25, 1984.
The City filed a motion for partial summary judgment on April 3, 1984. The City contended that a decision in a prior action between the parties which had determined that holiday pay and uniform allowances were not "salary" under article XI (Roy Estes et al. v. The City of Richmond, etc., et al. [Estes II] (Super. Ct. Contra Costa County, 1968, No. R-14715)) barred Officers in the instant case from suing for the inclusion of these items as "salary" under article XI. The trial court denied City's motion on September 7, 1984, holding that absent class members in the prior action had not been provided with notice that they were members of the class represented by plaintiffs and therefore, under the notice requirement of Home Sav. & Loan Assn. v. Superior Court (1974) 42 Cal. App.3d 1006 [117 Cal. Rptr. 485], the prior action could not be asserted as res judicata to the instant claim.
On December 17 and 19, 1984, the parties submitted cross-motions for summary judgment upon a joint statement of material undisputed facts.
After a hearing on January 16, 1985, judgment was entered on July 11, 1985. The judgment provided that holiday pay and uniform allowances should be deemed "salary" under article XI, while payments for group life and disability insurance and contributions toward health, medical, dental, hospitalization and prescription drug plans should be excluded from the computation of retirement allowances.
This appeal followed.

II
(1) Officers contend that City payments for group life and disability insurance and contributions toward health, medical, dental, hospitalization and prescription drug plans should be deemed "salary" under article XI of the City of Richmond Charter for retirement computation purposes. We disagree.
The interpretation and applicability of a statute or ordinance is clearly a question of law (Dean W. Knight & Sons, Inc. v. State of California ex rel. Dept. of Transportation (1984) 155 Cal. App.3d 300, 305 [202 Cal. Rptr. *1496 44]), and is therefore within the independent review function of this court. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 241, p. 246.)
A determination of the scope of the term "salary" as used in article XI of the City of Richmond Charter necessitates a review of those provisions which define the police and firemen's pension fund. Two provisions are of key importance to this inquiry.
Section 2 provides in pertinent part that: "Any member of the police or fire departments ... shall ... be retired from further service in such department, and shall thereafter, during his lifetime, be paid in equal monthly installments from said Fund, a yearly pension equal to one-half (1/2) of the annual salary attached to the rank or position held by him in such department one (1) year prior to the date of such petition, or such order of said Board; provided, that in case of any change in salary at any time after such retirement for such rank or position, the pension shall after each and every such change, be one-half (4) of such salary as changed." (Italics added.)
Section 7 further provides that: "Any member of either the police or fire departments who desires to be retired on a pension shall file with the Pension Board a verified petition which shall contain the name and age of the petitioner, the rank or position held by him on the date of filing the petition, the salary of said rank or position, the rank held and the salary received by said petitioner one (1) year prior to the date of filing said petition, the date of entry into the service, and the aggregate service of said petitioner." (Italics added.)
In interpreting these provisions, we preliminarily note that the applicable rule of statutory construction provides that "[u]nder the guise of construction, a court should not rewrite the law, add to it what has been omitted, omit from it what has been inserted, give it an effect beyond that gathered from the plain and direct import of the terms used, or read into it an exception, qualification, or modification that will nullify a clear provision or materially affect its operation so as to make it conform to a presumed intention not expressed or otherwise apparent in the law." (58 Cal.Jur.3d, Statutes, § 86, pp. 436-437, fns. omitted.)
Several reasons compel our conclusion that the term "salary" as used in article XI does not include payments for insurance and medical plan contributions. First, the drafters of article XI consistently used the term "salary" in the article XI retirement computation formulas. The broader word "compensation" was not used in lieu of "salary" even though the drafters were conscious of the word "compensation" as evidenced by their use of that word in other portions of article XI. Nor were the words "fringe benefits" *1497 or "other benefits" used in the pension contribution formulas. It is clear that the drafters could have used these words in the computation formulas if it was their intention to provide broad pension benefits. Their failure to do so shows an absence of such an intent.
Moreover, the contexts in which the word "salary" was used in the charter provisions suggest that the drafters specifically intended to exclude payments for insurance and medical plan contributions from the retirement computation formulas. Section 7 provides that retirement allowances shall be based upon the "salary received by said petitioner." The plain meaning of these words is clear: under article XI "salary" has the characteristic of being received by the officer. It would not include payments for insurance and medical plan contributions which are received by third parties.
We therefore affirm the lower court's determination that City payments for group life and disability insurance and contributions toward health, medical, dental, hospitalization and prescription drugs are not "salary" under article XI of the City of Richmond Charter.

III
(2a) City contends that the issue of whether holiday pay and uniform allowances are "salary" under article XI of the City of Richmond Charter was litigated in Estes II and is, therefore, res judicata to this action. We agree.
(3) "The doctrine of res judicata provides that a final judgment on the merits bars the parties or those in privity with them from litigating the same cause of action in a subsequent proceeding and collaterally estops parties or those in privity with them from litigating in a subsequent proceeding on a different cause of action any issue actually litigated and determined in the former proceeding. [Citations.] (4) The application of the doctrine in a given case depends upon an affirmative answer to three questions: (1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? [Citations.]" (Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc. (1981) 120 Cal. App.3d 622, 628-629 [174 Cal. Rptr. 527].)
(2b) In the instant case, the first question must be answered in the affirmative. In Estes II the trial court was asked to determine whether the plaintiff class, members of the Richmond Police and Firemen's Pension Fund, was receiving the full amount of retirement benefits to which it was *1498 entitled under article XI of the City of Richmond Charter. The court specifically found that holiday pay and uniform allowances do not constitute a part of "salary" for pension computation purposes under article XI. In the present action, Officers' complaint similarly requests a declaration of plaintiffs' rights under the article XI retirement plan. Officers allege that City has refused to properly include such items as holiday pay and uniform allowances as "salary" in its retirement allowance computations. It is evident that the issues determined by the judgment in Estes II are precisely those raised by Officers' complaint in this action.
The second question must also be answered affirmatively. The trial court's findings of fact and conclusions of law in Estes II are clearly a judgment on the merits (see 7 Witkin, Cal. Procedure (3d ed. 1985) Judgment, § 217, pp. 654-655) which is now final. (Op. cit. supra, §§ 211-212, pp. 648-650.)
Finally, the parties to the instant action are identical to or in privity with the parties in Estes II. The plaintiff class in Estes II included all eligible and retired members of the Richmond Police and Firemen's Pension Fund. The plaintiff class in the present action similarly comprises all eligible and retired members of the plan. Because all current members of the pension plan in this action were members of the plan in 1968 when Estes II was decided, and since no new members have been added since 1964, there is an identity of the parties to the actions. (See 7 Witkin, op. cit. supra, § 283, p. 721.)
The instant class also includes successors in interest/beneficiaries, specifically surviving spouses of former employees. Although these plaintiffs were not members of the Estes II plaintiff class, Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 875 [151 Cal. Rptr. 285, 587 P.2d 1098], affirms that the concept of privity applies to a relationship between a party to the first action and a party to a subsequent action which is "sufficiently close" to justify application of collateral estoppel. In the instant case, the class of surviving spouses is "sufficiently close" to the plaintiff class in Estes II because the computation of pension benefits paid to former spouses under article XI depends upon the same interpretation of "salary" as that used to determine the benefits paid to the former employees themselves or to current members of the pension plan. It is thus evident that the class of surviving spouses in this case is in privity with the plaintiff class in Estes II.
(5) Notwithstanding expanded notions of privity, collateral estoppel may be applied with respect to nonparties only if the requirements of due process are met. "Due process requires that the nonparty have had an identity or community of interest with, and adequate representation by, the losing party *1499 in the first action. [Citations.] The circumstances must also have been such that the nonparty should reasonably have expected to be bound by the prior adjudication." (Lynch v. Glass (1975) 44 Cal. App.3d 943, 948 [119 Cal. Rptr. 139].) "Thus, in deciding whether to apply collateral estoppel, the court must balance the rights of the party to be estopped against the need for applying collateral estoppel in the particular case, in order to promote judicial economy by minimizing repetitive litigation, to prevent inconsistent judgments which undermine the integrity of the judicial system, or to protect against vexatious litigation. [Citations.]" (Clemmer v. Hartford Insurance Co., supra, 22 Cal.3d at p. 875; see 7 Witkin, Cal. Procedure, supra, Judgment, § 288, pp. 724-726.)
(6) The class of surviving spouses in the present action clearly has an identity of interest with the plaintiff class in Estes II. It is evident that both plaintiff classes requested a declaration of their rights under article XI of the City charter; in particular, they sought a determination that holiday pay and uniform allowances were "salary" and, as such, should be included in the computation of retirement benefits. Thus, the concerns of the surviving spouses were adequately represented by the plaintiff class in Estes II. Furthermore, because the deceased members, through whom the surviving spouses are receiving benefits, were all employed by the City prior to Estes II, it is clear that the class of surviving spouses should reasonably have expected to be bound by the Estes II decision. Under these circumstances, it can fairly be said that the due process rights of the nonparties have been adequately protected.
(7) Officers argue that the judgment in Estes II cannot be asserted as res judicata because absent class members in Estes II were not provided with notice pursuant to Home Sav. & Loan Assn. v. Superior Court, supra, 42 Cal. App.3d 1006. We find this argument unpersuasive.
It is well established that in the absence of relevant state precedents trial courts are urged to follow the procedures prescribed in rule 23 of the Federal Rules of Civil Procedure (28 U.S.C.) for conducting class actions. (Green v. Obledo (1981) 29 Cal.3d 126, 145-146 [172 Cal. Rptr. 206, 624 P.2d 256].) California Code of Civil Procedure section 382, the class action statute, is silent on the issue of notice. Federal rule 23, however, describes three types of class actions and defines the notice requirement applicable to each type. Subdivision (c)(2) provides that notice is mandatory in class actions defined in subdivision (b)(3); no notice is specifically required in (b)(1) and (b)(2) actions. In these latter actions, state and federal courts have generally held that notice is within the discretion of the trial court. (See, e.g., Lowry v. Obledo (1980) 111 Cal. App.3d 14, 23 [169 Cal. Rptr. 732]; Elliott v. Weinberger (9th Cir.1977) 564 F.2d 1219, 1228-1229.)
*1500 In the instant case, Officers contend Estes II was a (b)(3) action requiring notice; City contends it was a (b)(2) action in which notice was discretionary.
Subdivision (b)(2) applies when "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole."
Subdivision (b)(3) applies when "the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
Class actions are very diverse in nature. The language of subdivisions (b)(2) and (b)(3) will overlap in certain situations and the trial court must be vested with considerable discretion in determining under which subdivision the action will proceed.
Officers urge that the notice requirement in Home Sav. & Loan Assn., supra, should be applied to Estes II. Home Savings was an action in which borrowers alleged that the lender's late charges imposed on promissory notes were invalid. Plaintiffs/borrowers sought damages and a declaration that the late charge provisions were void. (Home Sav. & Loan Assn., supra, 42 Cal. App.3d at p. 1009.) The lower court ordered a trial on the merits before a determination of (1) the action's suitability as a class action, (2) the membership of the class, and (3) the form of notice to be given class members (id., at p. 1010), and the lender applied for a writ of prohibition. (Id., at p. 1008.) The issue before the Court of Appeal was whether the merits could be determined prior to a court ruling on class certification and notice. Neither side raised the question of whether or not notice was required. The issue therefore was when notice should be given, not if notice should be given.
The Court of Appeal issued the writ, holding that a defendant has a right to have class certification and notice issues resolved prior to a determination on the merits to preclude "so-called `one-way intervention,' a procedure under which potential members of the class can reserve their decision to become part of the class until the validity of the cause asserted by the named plaintiffs on behalf of the class has been determined." (Id., at p. 1011.) The court noted that "[w]hile one-way intervention has obvious attractions for members of the class on whose behalf an action has been brought in that it creates for them a no-lose situation, for a defendant it holds the *1501 terrors of an open-ended lawsuit that cannot be defeated, cannot be settled, and cannot be adjudicated." (Ibid.)
Several considerations demand that we reject Home Savings as mandating a notice requirement in Estes II. Preliminarily, because the court in Home Savings never addressed whether notice was required but, rather, cited to federal rule 23(c)(2) which specifies the notice required in (b)(3) actions (id., at p. 1012), we must assume that the court deemed Home Savings a (b)(3) action, in which mandatory notice was required. Thus, the court's conclusion that notice is required prior to a determination of the merits is applicable only in those cases in which notice is mandatory to all identifiable members of the class  in (b)(3) actions. California courts have not determined whether the Home Savings decision is applicable in (b)(1) and (b)(2) actions in which notice is discretionary. (See Employment Development Dept. v. Superior Court (1981) 30 Cal.3d 256, 265, fn. 10 [178 Cal. Rptr. 612, 636 P.2d 575].)
Estes II was not an action predominantly in the nature of money damages. Rather, it is more properly characterized as a declaratory action in which the request for monetary relief will not destroy (b)(2) status. (See Gonzales v. Jones (1981) 116 Cal. App.3d 978 [171 Cal. Rptr. 567] [(b)(2) status permitted in an action for injunctive, declaratory and mandamus relief, including a request for retroactive general assistance benefits]; Lowry v. Obledo, supra, 111 Cal. App.3d 14 [(b)(2) status permitted in an action to have a provision of the AFDC program declared invalid and for recomputation of past benefits under the program]; Souza v. Scalone (N.D.Cal. 1974) 64 F.R.D. 654, vacated on other grounds (9th Cir.1977) 563 F.2d 385 [(b)(2) status permitted in an action to enjoin an age requirement in a pension plan and to recover past benefits denied because of the age requirement].) Thus, where the monetary relief sought is integrally related to and would directly flow from the injunctive or declaratory relief sought, 23(b)(2) status is appropriate. (Gravenstein v. Campion (D.C.Alaska 1981) 540 F. Supp. 7, 12; Robinson v. Lorillard Corporation (4th Cir.1971) 444 F.2d 791, 802 [21 A.L.R.Fed. 453].) Moreover, any doubts as to whether an action should be classified under 23(b)(2) or 23(b)(3) should be resolved in favor of (b)(2) status. (7A Wright & Miller, Federal Practice and Procedure (1972) Civil, § 1775, p. 31.)
Inasmuch as Estes II can be classified as coming within federal rule 23(b)(2), we must address whether the Home Savings notice requirement is applicable to such an action.
We decline to expand the scope of Home Savings for several reasons. First, to do so would abrogate federal rule 23(c) and the case law decided thereunder which provides that notice in (b)(2) actions is discretionary.
*1502 Second, the ill sought to be corrected in Home Savings, the danger of "one-way intervention," was not present in Estes II because clarification of the term "salary" as used in article XI of the City of Richmond Charter affected all members of the retirement plan with equal force, thereby minimizing the risk of subsequent lawsuits on the same issue. Nor can the City argue that failure to provide notice to absent class members created a situation in which the City was ignorant as to the size of the class and the extent of resources required to adequately prepare its defense. (See Gonzales v. Jones, supra, 116 Cal. App.3d at p. 986, citing People v. Pacific Land Research Co. (1977) 20 Cal.3d 10, 20 [141 Cal. Rptr. 20, 569 P.2d 125].) In Estes II, the City had knowledge of the size of the class  all members of the retirement plan  and had the information available with which to compute the potential financial effects of an adverse judgment.
Third, "notice serves no purpose where [as in Estes II] there are no factual disputes and the plaintiff class is adequately represented.... [Citation.]" (Lowry v. Obledo, supra, 111 Cal. App.3d at p. 23; see also Gonzales v. Cassidy (5th Cir.1973) 474 F.2d 67, 75.) Nothing in the evidence before us indicates that the class representatives or their counsel in Estes II failed to "vigorously and tenaciously protect [...] the interests of the entire class." (Lewis v. Philip Morris, Inc. (E.D.Va. 1976) 419 F. Supp. 345, 352, vacated on other grounds (4th Cir.1978) 557 F.2d 1135.) It is clear that the representative plaintiffs raised "those claims `reasonably expected to be raised by the members of the class.' [Citation.]" (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 464 [115 Cal. Rptr. 797, 525 P.2d 701, 76 A.L.R.3d 1223].) Furthermore, there is no suggestion that the absent class members in Estes II would have raised any different issues, offered any other evidence, or sought any additional relief if they had received notice.
Fourth, Estes II is not an action where it can be said that by failing to receive notice an absent class member may have suffered a detriment by being deprived of an opportunity to opt out of the action. The result in Estes II would apply the same way to a member of the alleged class whether he opted out of the action or stayed in.
Officers would have us hold that the absent class members in Estes II were not adequately represented because the named plaintiffs in that action failed to file an appeal from that portion of the trial court's judgment adverse to plaintiffs' claims. Officers strenuously assert that Pettway v. American Cast Iron Pipe Co. (5th Cir.1978) 576 F.2d 1157 and Gonzales v. Cassidy, supra, 474 F.2d 67, are controlling here. Although the Fifth Circuit held in each case that inadequate representation is found where the named class representatives or their counsel do not vigorously prosecute by appealing *1503 from an adverse judgment, both cases were decided in the context of a clear conflict of interest between the named class representatives and the other class members. (Pettway v. American Cast Iron Pipe Co., supra, 576 F.2d at pp. 1177-1179; Gonzales v. Cassidy, supra, 474 F.2d at p. 75.) Because there was no conflict of interest between the class members in Estes II, we find Officers' reasoning unpersuasive. Considering the makeup of the class represented in Estes II, there is no likelihood that a different remedy would have been pursued if notice had been given to absent class members.
Officers finally argue that, pursuant to East Texas Motor Freight v. Rodriguez (1977) 431 U.S. 395 [52 L.Ed.2d 453, 97 S.Ct. 1891] and Lopez v. Bergland (N.D.Cal. 1978) 448 F. Supp. 1279, the failure of the named plaintiffs in Estes II to move for class certification constitutes inadequate representation. Because neither of the cases cited by Officers involved a factual situation similar to that in Estes II in which (1) all parties and the court treated the action as a class action throughout the proceedings and (2) the named class members provided otherwise adequate representation, we find these cases inapposite and accordingly reject Officers' argument.
We therefore determine that Estes II is a federal rule 23(b)(2) action which is governed by the discretionary notice standard embodied in 23(c). Rule 23(c) and the cases decided thereunder provide that notice in (b)(2) actions is committed to the sound discretion of the trial court. Such discretionary notice is presumptively valid, and should not be upset on appeal in the absence of an abuse of the trial court's discretion in giving notice in the manner it chose. (Ruiz v. McKaskle (5th Cir.1984) 724 F.2d 1149, 1153.)
Because we find no abuse of discretion, we conclude that the trial court in Estes II complied with the notice requirement in rule 23(c), and hold that, in the interest of promoting judicial economy and precluding inconsistent and vexatious litigation, the doctrine of res judicata should bar the present plaintiff class from relitigating the issues resolved in Estes II. We therefore reverse the judgment of the trial court and hold that, as determined in Estes II, holiday pay and uniform allowances are not "salary" for the purpose of computing retirement allowances under article XI of the City of Richmond Charter. Any inclusion of these items should come by way of legislation.

IV
The portion of the judgment adjudging that the "salary" used to compute retirement allowances under article XI should include the holiday pay and uniform allowances provided to current police and fire department employees, is reversed. The portion of the judgment adjudging that the City payments *1504 for group life and disability insurance and contributions towards health, medical, dental, hospitalization and prescription drug plans should not be deemed "salary" for retirement computation purposes, is affirmed.
Costs on appeal are awarded to City of Richmond.
Scott, Acting P.J., and Barry-Deal, J., concurred.
A petition for a rehearing was denied August 14, 1986, and the petition of plaintiffs and appellants for review by the Supreme Court was denied October 16, 1986. Bird, C.J., was of the opinion that the petition should be granted.