                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT

MATOKA T. ALTEMUS,                    
               Plaintiff-Appellant,
                 v.
MEDICAL COLLEGE OF VIRGINIA
HOSPITAL AND PHYSICIANS VIRGINIA                  No. 01-1591
COMMONWEALTH UNIVERSITY HEALTH
SYSTEM; MARY KRETZ, RN Nurse
Manager,
             Defendants-Appellees.
                                      
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
                 David G. Lowe, Magistrate Judge.
                           (CA-00-778)

                  Submitted: November 15, 2001

                      Decided: December 17, 2001

      Before WIDENER, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

                             COUNSEL

D. Scott Gordon, LAWRENCE & ASSOCIATES, Richmond, Vir-
ginia, for Appellant. Randolph A. Beales, Attorney General of Vir-
ginia, Judith W. Jagdmann, Deputy Attorney General, Guy W.
Horsley, Jr., Senior Assistant Attorney General, Richmond, Virginia,
for Appellee.
2              ALTEMUS v. MEDICAL COLLEGE OF VIRGINIA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

                              OPINION

PER CURIAM:

   Matoka T. Altemus appeals from the district court’s order dismiss-
ing her complaint filed pursuant to Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1994
& Supp. 2001), because it was barred under principles of res judicata.
This Court reviews a grant of summary judgment de novo. Higgins
v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.
1988). Summary judgment is appropriate only if there are no material
facts in dispute and the moving party is entitled to judgment as a mat-
ter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). This Court must view the evidence in the light most
favorable to the non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986).

   For the first time on appeal, she argues it was impossible to raise
her Title VII claim in her previously litigated state court action. Argu-
ments raised for the first time on appeal are generally deemed waived,
except where refusal to consider the issue would be plain error or
result in a fundamental miscarriage of justice. Karpel v. Inova Health
Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998). Alternatively, she
contends res judicata does not bar her complaints in their entirety
because portions of her federal claim do not arise from the identical
transaction as her previously litigated state court complaint. We have
fully reviewed the record, the district court’s opinion, and the parties’
briefs and joint appendix, and find no reversible error. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

                                                            AFFIRMED


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 00-6287

UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus

KEVIN JERMAINE MELVIN, a/k/a Baby-Boy,

                                            Defendant - Appellant.

Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Raleigh. James C. Fox, District Judge.
(CR-94-139-5-2-F, CA-98-950-5-F)

Submitted:   May 11, 2000                   Decided:   May 16, 2000

Before MURNAGHAN, LUTTIG, and TRAXLER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Kevin Jermaine Melvin, Appellant Pro Se. Paul Stuart Wilson, OF-
FICE OF THE STAFF JUDGE ADVOCATE, Fort Bragg, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Kevin Jermaine Melvin appeals from the district court’s order

denying his motion to reconsider a prior order denying relief on

his 28 U.S.C.A. § 2255 (West Supp. 1999) motion.       Our review of the

record and the district court’s opinion discloses no reversible

error.     Accordingly, we deny a certificate of appealability and

dismiss the appeal on the reasoning of the district court.           See

United   States   v.   Melvin,   Nos.    CR-94-139-5-2-F;   CA-98-950-5-F

(E.D.N.C. Sept. 28, 1999).       We dispense with oral argument because

the facts and legal contentions are adequately presented in the ma-

terials before the court and argument would not aid the decisional

process.

                                                                DISMISSED

                                     2


Opinion issued June 29, 2006

In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-05-01108-CV
____________

MARK REYNOLDS, Appellant

V.

MAHA REYNOLDS, Appellee

On Appeal from the 310th District Court
Harris County, Texas
Trial Court Cause No. 2005-27761

MEMORANDUM OPINION
	Appellant Mark Reynolds has filed an unopposed motion to dismiss his appeal.
No opinion has issued.  Accordingly, the motion is granted, and the appeal is
dismissed.  Tex. R. App. P. 42.1(a)(1).
	All other pending motions in this appeal are overruled as moot.  The Clerk is
directed to issue mandate within 10 days of the date of this opinion.  Tex. R. App. P.
18.1.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Taft and Nuchia.


638 S.W.2d 51 (1982)
Leroy GREEN, Appellant,
v.
STATE of Texas, Appellee.
No. 01-81-0482-CR.
Court of Appeals of Texas, Houston (1st Dist.).
April 8, 1982.
Casey O'Brien, Houston, for appellant.
Larry Urquhart, Houston, for appellee.
Before DYESS, SMITH and BASS, JJ.
*52 DYESS, Justice.
The appellant was convicted of aggravated assault and sentenced to 6 years confinement in the Texas Department of Corrections.
A brief statement of the pertinent facts follows.
The complainant, Lionel Ingraham, is a nine year old boy. On the day of the shooting, he was walking home from school in the early afternoon when he was caught in the cross-fire between the appellant and "Donnie", a friend of the complainant's family. Donnie had ceased firing before the complainant was struck, but the appellant continued firing a shotgun loaded with buckshot. The appellant and his sister were sitting side by side while the appellant was shooting, and each denied ever seeing the complainant in the area of firing. During the appellant's firing, the complainant was struck by buckshot in his head, arms, and chest. Some of the buckshot were never removed by the surgeons because they were imbedded in the skin.
The appellant is before this court with two grounds of error asserted. By his ground of error one he complains that the indictment is fundamentally defective because it fails to specifically allege the reckless act for which the appellant was charged. In essence, the appellant claims that the indictment merely states that he acted recklessly, without stating how he acted or giving a definition of "reckless". In support of his argument the appellant cites Tex.Penal Code Ann. § 6.03 (Vernon 1974) and Tex. Code Crim. Pro. Ann. art. 21.15 (Vernon 1974).
Article 21.15 requires that when a defendant is charged with acting recklessly, as was the appellant, the indictment must allege with reasonable certainty the act relied upon to constitute recklessness, and that, in no event, shall the State merely allege that the accused acted recklessly. § 6.03 contains a definition of "reckless", describing that state as existing when one is aware of, but consciously disregards, a substantial and unjustifiable risk that a result will occur.
The indictment in the instant case states that the appellant did,
recklessly cause bodily injury to Lionell (sic) Ingraham with the use of a deadly weapon by firing a shotgun in the area where Lionell (sic) Ingraham was located without taking any precautions to insure that no one was present who would be struck by the shotgun blast.
We view the appellant's complaint as the same made in Townsley v. State, 538 S.W.2d 411 (Tex. Cr. App. 1976). The Townsley indictment charged that the appellant,
did then and there recklessly cause the death of Luther Eugene Stark by driving a motor vehicle at an excessive rate of speed while attempting to elude a police officer and recklessly causing said vehicle to run off the roadway and rollover thereby fatally injuring the said Luther Eugene Stark, who was a passenger in said vehicle. Id.

The court in Townsley found the above indictment more than adequate to describe the acts upon which the State was relying. It also held that as long as the act is alleged with reasonable certainty so that the accused will know the nature of the reckless act of which he is charged, the State is not required to plead the act specifically in terms of the § 6.03 definition of reckless.
In our opinion the present indictment is sufficient because it alleges the act relied upon by the State to constitute recklessness. The appellant will not be heard to say that he was not informed that the particular reckless act was the firing of a weapon in the area of the complainant without taking the precaution of determining whether anyone was present in the danger zone. As we view the indictment in the case at bar, it placed the defense on notice that the theory of recklessness upon which the State intended to rely was that the appellant was aware of, and consciously disregarded, the substantial and unjustifiable risk that someone might be present in the line of fire area and be injured by his firing of the shotgun. We overrule the appellant's ground of error one.
*53 By his ground of error two the appellant asserts that the trial court committed reversible error when it allowed the jury to touch and feel the complainant's wounds. The only objection made by the appellant's counsel, at the time of the State's offer, was hardly an objection at all as the appellant's counsel simply stated:
"I think it can be described, your Honor."
However, for the purpose of the complete review sought by the appellant, we hold that it was not error for the court to permit the jurors to touch and to feel the complainant's wounds. Despite the contentions of the appellant that this touching and feeling by the jurors created undue prejudice and was cumulative, we hold to the contrary.
As to the contention of undue prejudice, there is no suggestion in the record that there were bad scars on the complainant's head or that the imbedded buckshot were visible to the jurors. It has been held that a verbal description of an assault is admissible and that an exhibition of the scars resulting therefrom is admissible. Lydia v. State, 486 S.W.2d 791 (Tex. Cr. App. 1972). While the appellant cites Rabb v. State, 168 Tex.Cr.R. 62, 323 S.W.2d 41 (1959) in support of his ground of error two, it is our view that, to the extent that the Rabb opinion implied that it is necessary for a fact issue to be present before bloody clothing can be introduced, it was overruled by Bradford v. State, 608 S.W.2d 918 (Tex. Cr. App. 1980). The Bradford court was confronted with a trial development in which bloody clothing was introduced after uncontradicted testimony regarding the details of the shooting and the victim's body. The court's conclusion was that clothing is admissible whenever a verbal description of the victim's body and clothing is admissible, i.e., when it throws light on the transaction.
In the instant case, the jurors' touching and feeling of the complainant's wound were not unduly prejudicial.
It is our further view that the evidence brought in by the juror's touching and feeling of the complainant's wounds or scars was not cumulative for several reasons. For instance, the State did not offer a medical report, no doctor testified, and there were no photographs of the complainant's injuries.
We affirm the judgment of the trial court.
Judgment rendered and opinion filed April 8, 1982.


751 F.Supp. 90 (1990)
Curtis WISE, Plaintiff,
v.
DALLAS & MAVIS FORWARDING CO., Drivers, Chauffeurs, Warehousemen and Helpers Local No. 71, and Central States, Southeast and Southwest Areas Pension Fund, Defendants.
No. C-C-90-167-P.
United States District Court, W.D. North Carolina, Charlotte Division.
November 14, 1990.
Louis L. Lesesne, Jr., Gillespie Lesesne & Connette, Charlotte, N.C., for plaintiff.
C. John Holmquist, Jr., Charfoos Reiter Peterson & Holmquist, P.C., Birmingham, Mich., Philip Van Hoy, Van Hoy & Reutlinger, Charlotte, N.C., Hugh J. Beins, Jonathan G. Axelrod, Beins Axelrod Osborne & Mooney, P.C., Washington, D.C., Francis M. Fletcher, Harkey Fletcher Lambeth & Nystrom, S. Dean Hamrick, Waggoner Hamrick Hasty Monteith Kratt & McDonnell, Charlotte, N.C., Francis J. Carey, Rosemont, Ill., for defendants.

ORDER
ROBERT D. POTTER, Chief Judge.
THIS MATTER is before the Court on Defendant Central States, Southeast and Southwest Areas Pension Fund's (hereinafter "Central States") motion, filed August 15, 1990, to strike Plaintiff's jury demand.
The record in this case indicates Plaintiff filed his complaint on June 1, 1990. The complaint alleges that Plaintiff was employed in February, 1980 as a truck driver by Defendant Dallas & Mavis Forwarding Company (hereinafter "Dallas & Mavis"). In 1981, Dallas & Mavis recognized Defendant Drivers, Chauffeurs, Warehousemen and Helpers Local No. 71 (hereinafter "Local No. 71") as the exclusive bargaining agent for Dallas & Mavis employees. Prior to his employment with Dallas & Mavis, Plaintiff accumulated 13 years of service credits with a Central States pension fund.
Plaintiff contends that the contract between Dallas & Mavis and Local No. 71 required Dallas & Mavis to make fringe benefit pension contributions on his behalf *91 to the Central State Pension Fund so that he could earn credited service for a pension for the time that he worked at Dallas & Mavis from 1981 through 1990. Therefore, the denial of the service credits from 1981 to 1990 will reduce the amount of pension benefits which Plaintiff contends he is legally entitled to receive upon his retirement.
The complaint sets forth three (3) claims for relief. First, Plaintiff alleges that Dallas & Mavis and Local No. 71 violated § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (hereinafter "§ 301") by failing to comply with the collective bargaining agreement, and by Local No. 71's failure to comply with its duty of fair representation by failing to take appropriate steps to require Dallas & Mavis to comply with its contractual obligation. Second, Plaintiff contends that Dallas & Mavis failed to make the contributions to Central States' pension fund as required by the collective bargaining agreement, and thus, Plaintiff is entitled under § 502 of ERISA, 29 U.S.C. § 1132(a) to enforce his rights under the Central States plan. Third, Plaintiff asserts that Central States violated its fiduciary duty by failing to require Dallas & Mavis to comply with the requirements of the plan in violation of 29 U.S.C. § 1104(a)(1)(D).
Plaintiff seeks the following relief:
(1) Judgment against Defendants, jointly and severally, for all damages sustained by Plaintiff;
(2) An Order directing Dallas & Mavis and Local No. 71 to make all contributions which were required to be made on Plaintiff's behalf during 1981 through 1990;
(3) An Order enjoining Central States to credit Plaintiff for all years of service with Dallas & Mavis as if contributions had been made on Plaintiff's behalf;
(4) An award of costs, including reasonable attorney fees, and;
(5) Such other relief as may be appropriate.
Plaintiff has demanded a jury trial on all issues of fact.
In the motion currently before the Court, Central States contends that ERISA does not expressly provide for a jury trial because ERISA claims are equitable in nature. Thus, there is no right to a jury trial in such cases.
The Fourth Circuit Court of Appeals has expressly held that an arbitrary and capricious standard is to be utilized by courts reviewing actions taken by fiduciaries administering company benefit plans. See Berry v. Ciba-Geigy Corp., 761 F.2d 1003, 1006 (4th Cir.1985); see also Voliva v. Seafarers Pension Plan, 858 F.2d 195, 196 (4th Cir.1988); Richards v. United Mine Workers of America Health and Retirement Funds, 851 F.2d 122, 123 (4th Cir. 1988). Under the common law of trusts, proceedings to determine rights under employee benefit plans are equitable in character, and thus a matter for a judge, not a jury. Berry, 761 F.2d at 1007. Whether a fiduciary has violated the arbitrary and capricious standard is a matter for the court. Id. at 1006. To submit such an issue to a jury would constitute reversible error. Id. "[T]he significance of the standard, while second-nature to a judge, is not readily communicated to jurors." Id.
Plaintiff argues in his motion that the arbitrary and capricious standard is no longer the appropriate standard for courts to apply in ERISA cases. In the recent United States Supreme Court case of Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Court held that a claim for benefits under ERISA is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Id. 109 S.Ct. at 956. Accordingly, Plaintiff argues that the rationale of Berry in holding that ERISA actions should be tried to the bench is no longer applicable unless the benefit plan conveys upon the administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Therefore, Plaintiff contends that Central States' motion should be denied.
*92 The Court believes that a fair reading of Bruch does not lead to the conclusion that Berry is no longer good law. The Supreme Court did not address the question of whether a jury trial is required in an ERISA action. While not specifically addressing the Bruch decision, at least two post-Bruch Circuit Courts have found no right to a jury trial in ERISA actions. See Bair v. General Motors Corporation, 895 F.2d 1094, 1097 (6th Cir.1990); Cox v. Keystone Carbon Co., 894 F.2d 647, 650 (3rd Cir.1990).
Moreover, a district court in the Fourth Circuit recently rejected a similar argument to the one made by Plaintiff. In Quesinberry v. Individual Banking Group Accident Insurance Plan, 737 F.Supp. 38, (W.D.Va.1990), the court found that Berry, after Bruch, was still controlling law in the Fourth Circuit. In particular, the court noted that the Fourth Circuit in Berry did not merely rely on the arbitrary and capricious standard in concluding that a plaintiff in an ERISA action was not entitled to a jury trial. Id. at 41. Rather, the Berry court also cited the common law of trusts and the finding that actions under ERISA are equitable in nature as support for its decision.
This Court agrees with Chief Judge Turk that Berry remains good law and is binding precedent in this Circuit, even in light of the decision in Bruch. Id. Plaintiff has cited only one case, from the Eastern District of Michigan, in support of his position that Bruch permits jury trials in ERISA actions. Given the fact that the case cited by Plaintiff is a pre-Bruch decision (1977) and the clear precedent established in the Fourth Circuit under Berry, the Court is reluctant to extend Bruch to the limits urged by Plaintiff. It will lie with the Fourth Circuit, and not this Court, to reverse the clear language of Berry.
As an alternative position, Plaintiff contends that he is entitled to a jury trial on his § 301 claim[1], and therefore, his entitlement to a jury trial on his ERISA claim follows, regardless of whether he would independently be entitled to a jury trial on his ERISA claim alone.
In support of this position, Plaintiff relies on the recent United States Supreme Court decision of Lytle v. Household Manufacturing, Inc., ___ U.S. ___, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990). That case involved a dismissal by the district court of a claim brought pursuant to 42 U.S.C. § 1981. Id. 110 S.Ct. at 1335. Thereafter, a Title VII claim from the same complaint was tried to the bench. The Court of Appeals held that the dismissal of the § 1981 claim was erroneous, but, nevertheless, ruled that the district court's findings on the Title VII claims collaterally estopped the plaintiff from re-litigating his § 1981 claims. In reversing, the Supreme Court noted, "[W]hen legal and equitable claims are joined in the same action, the right to jury trial on the legal claim ... remains intact". Id.
Apparently, Plaintiff believes that this language requires the Court to find that he is entitled to a jury trial on all claims alleged in the complaint if he is entitled to a jury trial on any one claim. The Lytle case simply does not require such a finding. Instead, the Supreme Court in Lytle was merely addressing the situation where a court improperly dismisses a claim that otherwise should be heard by a jury. The Supreme Court found that the doctrine of collateral estoppel does not preclude the resolution of those claims on remand before a jury simply because the district court heard other claims from the same complaint in a bench trial. "[I]t would be anomalous to hold that a district court may not deprive a litigant of his right to a jury trial by resolving an equitable claim before a jury hears a legal claim raising common issues, but that a court may accomplish the *93 same result by erroneously dismissing the legal claim". Id. 110 S.Ct. at 1336-37.
The Court does not believe that the Supreme Court in Lytle in any way intended to provide a means for plaintiffs in ERISA actions to obtain access to a jury trial to which they are otherwise not entitled by cleverly pleading § 301 claims in the same complaint. Thus, the Court believes that the proper disposition of this matter is for a jury to hear the evidence pertaining to the § 301 claim and for the Court to hear evidence pertaining to the ERISA claims. The Court believes that the majority of the evidence can be heard at the same time. Any evidence that is relevant to the ERISA claims alone will be heard by the Court outside the presence of the jury.
NOW, THEREFORE, IT IS ORDERED that Central States' motion to strike Plaintiff's jury demand be, and hereby is, GRANTED IN PART AS TO THE ERISA CLAIMS.
IT IS FURTHER ORDERED that Central States' motion to strike Plaintiff's jury demand be, and hereby is, DENIED IN PART AS TO THE § 301 CLAIM.
NOTES
[1]  See Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, ___ U.S. ___, 110 S.Ct. 1339, 1349, 108 L.Ed.2d 519 (1990) (holding that remedy of backpay sought in duty of fair representation § 301 action is legal in nature, and that plaintiff is entitled to a jury trial).

The Court agrees with Plaintiff's contention that Terry entitles him to a jury trial on his § 301 action. However, as discussed below, this conclusion does not lead to the conclusion that Plaintiff is also entitled to a jury trial on his ERISA claims.


49 Cal.2d 701 (1958)
ANGELA CHAVEZ et al., Petitioners,
v.
INDUSTRIAL ACCIDENT COMMISSION et al., Respondents.
L. A. No. 24576.
Supreme Court of California. In Bank.
Feb. 14, 1958.
 Levy, Russell & DeRoy and George DeRoy for Petitioners.
 Everett A. Corten, Edward A. Sarkisian, Talbot & Thompson and George Thompson for Respondents.
 SPENCE, J.
 Petitioners, who are the surviving widow and children of Jose Chavez, seek annulment of the respondent commission's award to them of certain benefits and of the commission's order disapproving a compromise.
 The employee, Jose Chavez, suffered an industrial injury in 1955. His employer furnished medical treatment and made temporary disability payments for approximately three months. Thereafter, the employee filed an application for adjustment of compensation, and the commission conducted a hearing on February 27, 1956. An oral agreement of compromise for $2,250 was reached by the employee and the employer's insurance carrier on the following day. *702
 The insurer prepared a written compromise agreement on a form supplied by the commission and sent it to the employee, who executed it on March 10, 1956. It was received by the insurer on March 14. On March 12, however, the employee died of a nonindustrial heart condition. The carrier signed the compromise and forwarded it to the commission for approval before learning of the employee's death. The commission, through its referee, after learning of the death and at the insurer's request, disapproved the compromise. The order stated, in part, that the "Commission, having considered the entire record, now finds that it is not for the best interests of the parties to approve ... [the] Compromise and Release and that it should be disapproved, applicant having died prior to approval thereof. ..." The findings and award simply reiterated that the death was the basis for such action. The widow and dependent children were granted benefits consisting principally of unpaid compensation payments which were found to have accrued in favor of the employee prior to his death. Their petition for reconsideration was thereafter denied.
 The employee's dependents contend that although the employee died, there was still adequate consideration to support the compromise. [11] While this may be true, it is not controlling on the question of the effectiveness of the unapproved compromise or the question of the propriety of the commission's refusal to approve it in view of section 5001 of the Labor Code. That section provides: "Compensation is the measure of the responsibility which the employer has assumed for injuries or deaths which occur to employees in his employment when subject to this division. No release of liability or compromise agreement is valid unless it is approved by the commission, a panel, commissioner, or referee." (Emphasis added.)
 Undoubtedly the Legislature, in enacting this section, was primarily concerned with protecting workmen who might agree to unfortunate compromises because of economic pressure or lack of competent advice. (See 1 Hanna, The Law of Employee Injuries and Workmen's Compensation, p. 154.) However, the effect of the section, by its clear wording, is to make every compromise invalid until it is approved. (Employee's Credit Co. v. Industrial Acc. Com., 177 Cal. 46 [169 P. 1001]; Massachusetts etc. Co. v. Industrial Acc. Com., 176 Cal 488 [168 P 1050].) In conformity with the section, the written compromise agreement here contained an express provision *703 making its effectiveness dependent upon approval by the commission.
 Approval of the compromise by the commission, therefore, was clearly essential to its effectiveness. At the time that the compromise was before the commission for approval or disapproval, the commission knew of the employee's intervening death, which death would normally terminate any right to disability payments. (Lab. Code,  4700.) Under these circumstances the ruling of the commission disapproving the compromise cannot be disturbed.
 The award made by the commission and the order disapproving the compromise are affirmed.
 Shenk, J., Schauer, J., and McComb, J., concurred.
 CARTER, J.
 I dissent.
 This case comes to us on a petition to review an order of the Industrial Accident Commission (hereinafter called the commission) disapproving a compromise agreement made between an employee and employer. The majority correctly notes that a compromise agreement to be valid must be approved by the commission, and absent this approval the agreement is invalid (Lab. Code,  5001). From this proposition the majority concludes that where there is a disapproval of a compromise agreement by the commission there is nothing for an appellate court to review and the order of disapproval will not be disturbed. In reaching such conclusion the majority avoids the very question we were asked to review: Were the grounds stated by the commission in disapproving the compromise erroneous as a matter of law and thereby in excess of jurisdiction?
 At the outset there is the preliminary question of whether an order by the commission disapproving a compromise agreement is subject to review at all, and if so, does its scope include the question we are here asked to review. According to the provisions of section 5950 of the Labor Code, any person affected by an order of the commission may apply to the courts for a writ of review. It is clear that an order approving or disapproving a compromise and release comes within the provisions of section 5950 and a writ of review is available to a person adversely affected by such order (see Silva v. Industrial Acc. Com., 68 Cal.App. 510, 515 [229 P. 870]).
 However, in reviewing an order of the commission disapproving a compromise and release, appellate courts will *704 not annul it in the absence of an abuse of discretion (Stegeman v. Industrial Acc. Com., 6 Calif. Comp. Cases 256; Dubendorf v. Industrial Acc. Com., 7 Calif. Comp. Cases 191). To state an appellate court's authority in this connection in terms of the statute defining the scope of review (Lab. Code,  5952), questions of law are open to court review on the ground that an erroneous ruling on matters of law is in excess of jurisdiction (see National Auto. etc. Co. v. Industrial Acc. Com., 80 Cal.App.2d 769, 772 [182 P.2d 634]). Therefore, the question presented by petitioners, and which is now before us, is a proper one for review.
 The sole issue, then, is whether the grounds stated by the commission in denying petitioners' application for reconsideration are erroneous as a matter of law. I refer specifically to the application for reconsideration, since that is, in essence, the final order and the one which we are reviewing. (See Lab. Code,  5901; Liberty Mutual Ins. Co. v. Industrial Acc. Com., 15 Calif. Comp. Cases, 226.)
 The pertinent parts of the commission's order denying the application for reconsideration revealing the grounds are as follows: "While it appears that the amount offered in settlement constituted a compromise of defendants' [employer and insurance carrier] liability for any additional temporary disability indemnity, yet it appears that the main portion of the settlement sum was a compromise of liability for permanent disability. Since death terminates disability (Lab. Code,  4700) it would appear that the consideration for the settlement for permanent disability residuals had in a large part failed upon the employee's death. It is true that the parties had entered into an executed contract as between themselves but the Compromise and Release would not become effective unless and until approved by this Commission. A party to a contract may rescind if the consideration fails in a material respect for any cause (Civ. Code,  1689, subd. 4) and it thus appears that a party may rescind a contract otherwise valid, when the consideration in whole or in part fails before the contract has been fully performed."
 "The Panel is of the opinion that the referee acted correctly in disapproving the Compromise and Release, upon defendants' notice of rescission thereof."
 A reading of this order leaves no doubt but that the commission in affirming the referee's order disapproving the compromise agreement and their denial of the application for reconsideration was predicated upon the belief that there *705 was a failure of consideration, thus justifying the rescission under section 1689, subdivision 4 of the Civil Code. Furthermore it is evident that there is no dispute concerning the facts, and hence this issue of whether or not the death of the employee constituted a failure of consideration is a question of law and thereby a proper matter for review (see Reinert v. Industrial Acc. Com., 46 Cal.2d 349, 358 [294 P.2d 713]; Winter v. Industrial Acc. Com., 129 Cal.App.2d 174, 178 [276 P.2d 689]).
 That the death of the employee did not constitute a failure of consideration is clear. The survival of the employee, Chavez, was not in any way a material part of the consideration in the compromise agreement. Consideration is usually expressed as the "bargained for exchange" (Rest., Contracts,  75). The compromise release states that Chavez released his rights to any permanent disability payments in exchange for $2,250 he was to receive from his employer's insurance carrier; no mention is made that the employer or his insurance carrier is expecting Chavez to survive for any particular length of time. The employer and insurance carrier were obviously bargaining for this release; the whole object of the compromise was to obtain Chavez' release of his rights arising from the injury, anything else would have been pointless. In addition it is reasonable to assume that both parties were aware that if Chavez died his right to any disability payments would cease, and hence contracting with this in mind, the employer assumed the risk that Chavez might die before his period of permanent disability ran out. The fact that Chavez died before the right to any permanent disability payments accrued, did not affect the fact that he released the right to receive payments had he lived. The employer got exactly what he bargained for: Chavez releasing his claims against the employer arising from his injury.
 Having established that the grounds on which the commission based its order were incorrect as a matter of law, the order should be annulled and the cause remanded for appropriate commission action.
 This conclusion is not affected, as the majority opinion appears to imply, by the fact that the compromise agreement was not approved by the commission at the time of death of the employee Chavez. In other words the parties to a compromise agreement which has been submitted to the commission for approval cannot unilaterally rescind the agreement prior to the commission's approval or disapproval. It is true that *706 Labor Code, section 5001, states that the compromise agreement is not valid unless it is approved by the commission, but this does not mean that the agreement is ineffective and either party is permitted to rescind it at will simply on the ground that the agreement is not valid until approved. To state it another way, the statute declaring a compromise not valid unless the commission approves it is not intended to afford a ground for rescission once the agreement is submitted to the commission. To permit rescission on such basis would disrupt the orderly administration of justice and would be contrary to the principles for the conservation of the time and energy of the commission, and place each party at the caprice of the other in that rescission might occur any time after submission of the agreement to the commission but prior to the latter's action. Obviously, the commission could not disapprove such an agreement without legal or just cause. In other words the commission may not validly act arbitrarily or do what would amount to the same thing--base its conclusion on non-existent facts or inapplicable rules of law. But this is just what the commission has done in this case and the majority here has approved its unauthorized action.
 For the foregoing reasons I would annul the order.
 Gibson, C.J., and Traynor, J., concurred.


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 05-6600

AINSWORTH C. JACKSON,

                                            Petitioner - Appellant,

          versus

UNITED STATES PAROLE COMMISSION,

                                              Respondent - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-04-3081-AW)

Submitted:   September 22, 2006           Decided:   October 2, 2006

Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ainsworth C. Jackson, Appellant Pro Se. Jennifer A. Wright,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Ainsworth C. Jackson, a federal prisoner, appeals the

district court’s order denying relief on his 28 U.S.C. § 2241

(2000)   petition.    We    have   reviewed   the   record   and   find    no

reversible error. Accordingly, we deny Jackson’s motion for a copy

of the appellate record, and we affirm for the reasons stated by

the district court.   See Jackson v. U.S. Parole Comm’n, No. CA-04-

3081-AW (D. Md. filed & entered Mar. 29, 2005).          We dispense with

oral   argument   because   the    facts   and   legal   contentions      are

adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                                   AFFIRMED

                                   - 2 -


336 F.Supp.2d 890 (2004)
Willie R. HAMBRICK, Plaintiff
v.
FIRST SECURITY BANK, Defendant.
No. 4:04CV00067 JLH.
United States District Court, E.D. Arkansas, Western Division.
September 17, 2004.
*891 Robert M. Abney, District Judge, Attorney at Law, Des Arc, AR, for Plaintiff.
Buck Canyon Gibson, Millar Gibson, P.A. Searcy, AR, for Defendant.

OPINION AND ORDER
HOLMES, District Judge.
Willie Hambrick alleges that First Security Bank violated the anti-assignment provision of the Social Security Act, 42 U.S.C. § 407, as well as Arkansas law, when it offset funds deposited directly by the Social Security Administration into Hambrick's closed bank account against an account overdraft and an amount due on an unpaid promissory note. First Security Bank filed a motion for summary judgment (Docket # 7), arguing that it acted pursuant to the set-off provisions contained in the contract for the bank account and in the promissory note. For the reasons stated below, First Security Bank's motion for summary judgment is GRANTED in part and DENIED in part.
A court should grant summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis of its motion and identifying the portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753, 763 (8th Cir.2003). When the moving party has carried its burden under Rule 56(c), the non-moving party must "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1985) (quoting Fed.R.Civ.P. 56(c)). The non-moving party sustains this burden by showing that "there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250, 106 S.Ct. 2505. When a non-moving party cannot make an adequate showing on a necessary *892 element of the case on which that party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In deciding a motion for summary judgment, the court must view the facts and inferences in the light most favorable to the party opposing summary judgment. Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837, 841 (8th Cir.2001).
The facts are, for the most part, undisputed. On June 24, 1996, Hambrick and his wife opened a joint checking account, account # XXXXXXX, with First Security Bank. The account agreement signed by Hambrick contained the following set-off provision:
You each agree that we may (without prior notice and when permitted by law) set off the funds in this account against any due and payable debt owed to us now or in the future, by any of you having the right of withdrawal, to the extent of such persons' or legal entity's right to withdraw. If the debt arises from a note, "any due and payable debt" includes the total amount of which we are entitled to demand payment under the terms of the note at the time we set off, including any balance the due date for which we properly accelerate under the note.
Hambrick overdrew this account until it had a negative balance of $405.40. He alleges that First Security Bank closed this account on March 24, 2003, due to the overdraft. In response to the motion for summary judgment, Hambrick has produced a letter dated June 11, 2003, from Brenda Reynolds of First Security Bank stating this fact. The account agreement attached to First Security Bank's motion bears the date, March 24, 2003, in a handwritten notation in the top right corner underneath the notation, "CO $405.40." In its answer to Hambrick's complaint, First Security Bank denied that it closed the account, but it has produced no evidence contradicting Hambrick's assertion.
Hambrick was also indebted to First Security Bank pursuant to a promissory note that he and his wife executed in favor of First Security Bank on May 31, 2001, in the amount of $37,600.00. The note was secured by a lien on Hambrick's mobile home and a mortgage on his real property. The note gave First Security Bank a right of set-off in the case of default. In its relevant portion, the note stated:
I agree that you may set off any amount due and payable under this note against any right I have to receive money from you.
"Right to receive money from you" means:
(a) any deposit account balance I have with you;
(b) any money owed to me on an item presented to you or in your possession for collection or exchange; and
(c) any repurchase agreement or other nondeposit obligation.
"Any amount due and payable under this note" means the total amount of which you are entitled to demand payment under the terms of this note at the time you set off. This total includes any balance the due date for which you properly accelerate under this note.
Hambrick defaulted on the note. As a result, First Security Bank accelerated the sum due and foreclosed on the real and personal property. After the sale of this property, an indebtedness on the note in the amount of $19,226.30 remained unpaid. Hambrick asserts that First Security Bank failed to pursue a deficiency judgment, but neither party introduced records from the foreclosure proceeding to show whether or not First Security Bank's claims for the unpaid balance were merged into the foreclosure judgment.
*893 On June 11, 2003, which apparently was after the sale of the property in foreclosure, the Social Security Administration made a direct deposit into account 1431390 in the amount of $23,562.33. This amount constituted a lump sum payment of accrued Social Security disability benefits due to Hambrick. Upon acceptance of the funds into account 1431390, First Security Bank applied the deposit as a set-off against the account overdraft and the unsatisfied portion of the note. After the set-off, it forwarded the remaining balance of $3,930.63 to Hambrick's attorney.

SOCIAL SECURITY ACT
Section 407(a) of the Social Security Act states:
The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
42 U.S.C. § 407. Section 407(a) prohibits the transfer or assignment of any future payment of Social Security benefits, and it also protects "moneys paid or payable" from "execution, levy, attachment, garnishment, or other legal process." 42 U.S.C. § 407(a). Hence, Congress saw fit to provide, first, that future payments of Social Security benefits are not transferrable or assignable, and, secondly, that moneys paid or payable are exempt from execution, levy, attachment, garnishment, other legal process, or operation of bankruptcy and insolvency laws. See In the Matter of Capps, 251 B.R. 73 (Bankr.D.Neb.2000). Section 407 thus provides comprehensive protection that places payments of Social Security benefits beyond the reach of creditors. Such protection is consistent with the purpose behind the Social Security Act, the "protection of its beneficiaries from some of the hardships of existence." Mazza v. Sec'y of Dep't of Health and Human Serv., 903 F.2d 953, 960 (3rd Cir.1990) (quoting U.S. v. Silk, 331 U.S. 704, 711, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947)). See also Helvering v. Davis, 301 U.S. 619, 641, 57 S.Ct. 904, 81 L.Ed. 1307 (1937).
First Security Bank argues that § 407(a) does not apply to lump sum payments of accrued benefits payable under that Act. However, § 407 makes no distinction between lump sum payments and other payments. Section 407 "imposes a broad bar against the use of any legal process to reach all social security benefits." Philpott v. Essex County Welfare Bd., 409 U.S. 413, 417, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973) (emphasis added). Hence, § 407 reaches "all Social Security benefits"; it does not exempt lump sum payments from its protection. In Philpott, the Supreme Court applied § 407 to a lump sum payment of retroactive Social Security disability insurance benefits that had accrued over a period of more than two years. Section 407 makes no distinction between accrued funds and regular monthly payments. "The protection afforded by § 407 is to `moneys paid.'" Id. at 416, 93 S.Ct. 590.
First Security Bank next argues that summary judgment should be granted because it acquired the Social Security moneys pursuant to its contractual right under the account and note agreements, rather than by writ of garnishment, attachment, execution, or by means of any other formal judicial act proscribed by § 407. However, § 407 protects not only against legal processes, it also prohibits the transfer or assignment of future payments of Social Security benefits. An agreement, even one voluntarily entered into by Hambrick, that transferred or assigned his rights to future payment of Social Security benefits to First Security *894 Bank to offset debts owed would violate § 407. Hambrick could, consistent with § 407, make payments on his debts from his Social Security benefits, but he could not transfer or assign payments that he had not received at the time of the agreement. The set-off provisions in the account agreement and the promissory note cannot lawfully apply to payments of Social Security benefits that Hambrick had not received when those agreements were executed. In light of the Supreme Court's direction to construe federal benefit statutory schemes liberally in order to "protect funds granted by the Congress for the maintenance and support of the beneficiaries thereof" (Porter v. Aetna Cas. & Sur. Co., 370 U.S. 159, 162, 82 S.Ct. 1231, 8 L.Ed.2d 407 (1962)), this Court is not persuaded by First Security Bank's argument that § 407 should be interpreted in any other way. See also Capps, 251 B.R. at 75.
Other courts have applied § 407 to bank set-offs and have held that Social Security benefits are protected against this self-help remedy. See Tom v. First Am. Credit Union, 151 F.3d 1289, 1291-93 (10th Cir.1998); Capps, 251 B.R. 73. But cf. Frazier v. Marine Midland Bank, 702 F.Supp. 1000 (W.D.N.Y.1988); In re Gillespie, 41 B.R. 810 (Bankr.D.Colo.1984); Lopez v. Washington Mutual Bank, 302 F.3d 900 (9th Cir.2002). The Tenth Circuit Court of Appeals found no principled difference between using the court system to reach Social Security benefits and using a self-help remedy to offset those funds against a debt:
We can see no reason why Congress would, on the one hand, choose to protect Social Security beneficiaries from creditors who utilized the judicial system, a system that is built upon principles of fairness and protection of the rights of litigants, yet, on the other hand, leave such beneficiaries exposed to creditors who devised their own extra-judicial methods of collecting debts.
Tom, 151 F.3d at 1292 (citing Crawford v. Gould, 56 F.3d 1162, 1166 (9th Cir.1995)). Neither can this Court.
Even if this Court were persuaded by the reasoning of the other courts cited by First Security Bank, namely the courts in Frazier, Gillespie, and Lopez, summary judgment would nonetheless be inappropriate in this case. Hambrick has presented evidence that creates a genuine issue of material fact and thus would preclude this Court from granting First Security Bank's motion for summary judgment. Because the status of account # XXXXXXX is at issue, and because First Security Bank has not met its burden of showing that its contractual right of set-off continued to exist after First Security Bank closed the account, the Court cannot say that First Security Bank was acting pursuant to a valid, effective contractual right.
Frazier involved a contractual set-off of Social Security funds deposited into the plaintiff's bank against the unpaid balance on a defaulted loan with that bank. Frazier, 702 F.Supp. 1000. The court noted that the plaintiff could have effectively avoided this set-off by simply closing the account and opening another at a different bank. Id. at 1003. See also Gillespie. In this case, Hambrick has presented evidence that First Security Bank had closed his account prior to the set-off in question. The set-off provision in the account agreement does not specify that the right of set-off would continue after the account was closed. The agreement does contain a term entitled "Amendments and Termination," which states, "we may change any term of this agreement....We may also close this account at any time upon reasonable notice to you and tender of the account balance personally or by mail." It seems that closing the account would terminate the contract. Thus, even if the Court were to agree with First Security *895 Bank's interpretation of § 407, a genuine issue of material fact would exist as to whether First Security Bank acted pursuant to an effective contract at the time of the set-off.

REMAINING STATE LAW CLAIMS
First Security Bank also seeks the dismissal of each of the state-law claims that Hambrick raises in his complaint. In its motion for summary judgment, First Security Bank states that the state-law claims should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. However, First Security Bank answered without asserting that any claims should be dismissed under Rule 12(b)(6). The Court will treat First Security Bank's argument as one for summary judgment, which is appropriate because matters outside the pleadings will be considered. Stahl v. U.S. Dept. of Agric., 327 F.3d 697, 700 (8th Cir.2003).
In addition to claiming a violation of the Social Security Act, Hambrick alleges that First Security Bank's actions constituted fraud, negligence, breach of fiduciary duty, conversion, negligent misrepresentation, and breach of good faith and fair dealing under the common law and the Arkansas Uniform Commercial Code. In his response to this motion for summary judgment, Hambrick admits that there is not a sufficient factual basis for his claims of fraud and breach of fiduciary duty. Accordingly, summary judgment will be granted on those claims.
As to Hambrick's claim for negligence, First Security Bank asserts that Hambrick fails to set forth the duty owed and to establish facts that constitute a breach of that duty. The question of what duty is owed is always one of law. Mans v. Peoples Bank of Imboden, 340 Ark. 518, 524, 10 S.W.3d 885, 888 (2000). Ordinarily, the relationship between a bank and its customer is one of debtor and creditor. Id. at 525, 10 S.W.3d at 889. The duty owed is one of ordinary care. Id. at 526, 10 S.W.3d at 889. In his response to this motion for summary judgment, Hambrick stated in a conclusory manner that First Security Bank's actions in reopening his closed account constituted negligence. Neither party has devoted much argument to this issue separate from the argument regarding § 407. Viewing the facts in the light most favorable to Hambrick and in the absence of substantial argument from either party, this Court cannot say as a matter of law that First Security Bank acted with ordinary care. As with so many of the claims that follow, a genuine issue of material fact exists as to the status of the account at the time of the set-off. Summary judgment on the negligence claim will be denied.
First Security Bank next asserts that Hambrick cannot establish a cause of action for conversion because the set-off was exercised pursuant to the account and note agreements. Hambrick asserts that First Security Bank was required to return the funds to the Social Security Administration because account 1431390 had been closed. He alleges that its failure to do so constitutes conversion. In Arkansas, conversion requires the intent to exercise dominion or control over property which is inconsistent with the owner's right. J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 351, 836 S.W.2d 853, 857 (1992). Whether the offset was contrary to Hambrick's right depends on whether that offset violated § 407 and whether, apart from § 407, there was a contract in effect at the time of the offset. First Security Bank has not met its burden of proving that it is entitled to judgment as a matter of law. Summary *896 judgment on the conversion claim will be denied.
First Security Bank next argues that summary judgment should be granted on the claim for negligent misrepresentation. Arkansas does not recognize a cause of action for negligent misrepresentation. South County, Inc. v. First Western Loan Co., 315 Ark. 722, 725-726, 871 S.W.2d 325, 326 (1994). See also Boerner v. Brown & Williamson Tobacco Co., 126 F.Supp.2d 1160, 1170 (E.D.Ark.1999) (aff'd in part and rev'd in part on other grounds by Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837 (8th Cir.2001)). Summary judgment on the claim of negligent misrepresentation will be granted.
Finally, First Security Bank asserts that summary judgment should be granted on each of Hambrick's claims dealing with breach of common law and of the Arkansas Uniform Commercial Code duties of good faith and fair dealing. First Security Bank again refers to its right to set-off pursuant to its contractual agreements. It also appeals to the rights "long afforded by Arkansas common law and explicitly recognized by the Arkansas Uniform Commercial Code." Neither party cites cases on a common-law right of set-off. The code provision cited by First Security Bank states that "(a) Except as otherwise provided in subsection (c), a bank with which a deposit account is maintained may exercise any right of recoupment or set-off against a secured party that holds a security interest in the deposit account." Ark.Code Ann. 4-9-340. Whether the set-off was proper again revolves around the issue of whether the account was "maintained," which is disputed. Summary judgment on breach of the duty of good faith and fair dealing will be denied.

CONCLUSION
Defendant's motion for summary judgment (Docket # 7) is GRANTED in part and DENIED in part.


77 F.3d 479
U.S.v.Wahl*
NO. 95-40570
United States Court of Appeals,Fifth Circuit.
Jan 16, 1996
Appeal From:  E.D.Tex., No. 95-CV-60

1
DISMISSED.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


537 U.S. 985
GARDUNO-MONTOYAv.UNITED STATES.
No. 02-6437.
Supreme Court of United States.
October 21, 2002.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

2
C. A. 9th Cir. Certiorari denied. Reported below: 37 Fed. Appx. 884.


912 A.2d 648 (2006)
396 Md. 12
LAYTON
v.
HOWARD COUNTY.
Pet. Docket No. 474.
Court of Appeals of Maryland.
Granted December 14, 2006.
Petition for writ of certiorari granted.