309 F.3d 1
INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, LOCAL UNIONS NO. 970 AND 1144, AFL-CIO-CLC, Petitioners,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 01-1242.
No. 01-1323.
United States Court of Appeals, District of Columbia Circuit.
Argued September 6, 2002.
Decided October 25, 2002.

On Petition for Review and Application for Enforcement of an Order of the National Labor Relations Board
Forrest H. Roles argued the cause and filed the briefs for W.R. Mollohan, Inc.
Joseph E. Kolick, Jr. argued the cause for International Union of Painters and Allied Trades, Local Unions No. 970 and 1144, AFL-CIO-CLC. With him on the brief was Kirsten Lea Doolittle.
David A. Fleischer, Senior Attorney, National Labor Relations Board, argued the cause for the Board. With him on the brief were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Fred L. Cornnell, Jr., Supervisory Attorney. Frederick Havard, Supervisory Attorney, and Jill A. Griffin, Attorney, National Labor Relations Board, entered appearances.
Before: TATEL and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge WILLIAMS.
STEPHEN F. WILLIAMS, Senior Circuit Judge:

1
This case arises from the refusal of an employer to enter into and abide by a collective bargaining agreement ("CBA") negotiated with various unions (collectively, the "union"). The employer claimed that it had not authorized the negotiators and therefore was not bound by the agreement; it also argued that the union's failure to have obtained majority status excused the employer's non-compliance. The National Labor Relations Board rejected these arguments. See W.R. Mollohan, Inc., 333 NLRB No. 162, 2001 WL 497324, at *1, *3 (2001). The employer also claimed that two clauses of the agreement violated the National Labor Relations Act. The Board rejected one such claim and accepted the other, relating to the "successorship clause." Id. at *2. But it ruled that the allegedly defective language in that clause was severable and therefore did not justify the employer's refusal to abide by the agreement. Id. at *3. The union petitioned for review, challenging the Board's edit of the successorship clause, and the Board filed an application for enforcement. The employer then filed an answer under Rule 15(b)(2) of the Federal Rules of Appellate Procedure, defending its refusal to bargain. Rejecting the employer's claims and accepting those of the union, we grant the Board's application for enforcement except with regard to the order's deletion of language from the successorship clause.

2
Because there is little overlap between the issues relating to the negotiations and majority status on the one hand, and to the two disputed clauses on the other, we address them separately.

3
Our review is governed by § 10(e) of the Act, 29 U.S.C. § 160(e), and the Administrative Procedure Act. The Board's factual findings "shall be conclusive" if supported by substantial evidence. 29 U.S.C. § 160(e). Its reasonable interpretations of the Act are entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). Board interpretations of the CBA, however, receive no deference. Litton Fin'l Printing Div. v. NLRB, 501 U.S. 190, 202-03, 111 S.Ct. 2215, 2223-24, 115 L.Ed.2d 177 (1991).

4
* * *

5
W.R. Mollohan, Inc. is in the business of painting and repainting bridges, overpasses, and tunnels on federal and state highways. For many years, Mollohan signed union contracts negotiated by the Charleston Chapter of the Painting and Decorating Contractors of America ("the Association"), which represented several area employers in collective bargaining negotiations with the union. Mollohan's Vice President of Operations, Joe Beam, was president of the Association and served on its negotiating committee. The Association negotiated the contract preceding the one now in dispute, which Beam then signed on behalf of the company.

6
In March 1998 the union expressed its desire to negotiate a new contract by sending a letter to the Association. Beam, in his capacity as president of the Association, sent a similar letter to the union expressing the Association's desire to negotiate as well. At the first bargaining session, Beam and Association Secretary-Treasurer Ken Bowen told the union that they were representing seven named employers, including Mollohan. Negotiations began.

7
Beam resigned from the negotiating committee in the course of the negotiations, but didn't indicate that Mollohan was withdrawing authority from the Association to bargain on its behalf. About 10 days later, on April 28, 1998, the union and the Association reached agreement on a new CBA, subject to ratification by the union's membership, which followed in due course.

8
On May 8 Mollohan notified the Association and the union that it was withdrawing authorization from the Association to bargain on its behalf. The union took the position that the company was already bound, and asked Mollohan to sign. Mollohan refused and, without bargaining with the union, ceased making contractually required payments to several funds, and instead began depositing employee pension funds into an escrow account.

9
Acting on separate charges filed by the union, the Board's General Counsel issued a consolidated complaint alleging that Mollohan had violated §§ 8(a)(1), (5) of the Act, 29 U.S.C. § 158(a)(1), (5), by these and related acts of non-compliance with the agreement. Besides its claim that the negotiators lacked authority, Mollohan argued that the agreement was invalid because two of its clauses violated the Act, thus excusing Mollohan's non-compliance.

10
After a hearing, the Administrative Law Judge issued a decision entirely rejecting Mollohan's claims. It didn't have to consider severability, as it found the two challenged clauses not violative of the Act.

11
The Board affirmed the ALJ's findings of violations, holding that the Association had apparent authority to bind the company. Mollohan, 333 NLRB No. 162, 2001 WL 497324, at *1. Contrary to the ALJ, however, the Board found that some language in the successorship clause violated § 8(e) of the Act, and accordingly it modified the ALJ's recommended order to require that Mollohan execute and abide by the contract only after deletion of the unlawful language. Id. at *2-*3.

12
First, we reject Mollohan's argument that the Board's finding of apparent authority was not supported by substantial evidence. As both the ALJ and the Board discussed at length in their opinions, the Association told the union, in the presence of company representatives, that it represented the company, and the company did not purport to revoke that authority until after the agreement was reached. Id. at *1. Thus the Board's conclusion that the Association had apparent authority to bind Mollohan is supported by substantial evidence.

13
Although the company argues that the Board erred in deciding the case on an issue, apparent authority, that it says was not litigated before the ALJ, Employer's Br. at 13, Mollohan failed to raise the argument before the Board. Thus we lack jurisdiction. 29 U.S.C. § 160(e) ("No objection that has not been urged before the Board ... shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances."). Mollohan's attempted parry — that it could not raise the claim because it didn't know that the Board would adopt that theory until it issued its decision — doesn't work. Mollohan could have raised the point in a petition for reconsideration. International Ladies' Garment Workers' Union v. Quality Mfg. Co., 420 U.S. 276, 281 n. 3, 95 S.Ct. 972, 975 n. 3, 43 L.Ed.2d 189 (1975).

14
Second, although Mollohan appears to accept the general validity of the Board's rule that the company could not repudiate the agreement simply because the union had not attained majority status, John Deklewa & Sons v. Intern. Association of Bridge Workers, Local 3, 282 NLRB 1375, 1385, 1987 WL 90249 (1987) ("Deklewa"), enforced sub nom. International Ass'n of Bridge, Structural & Ornamental Iron Workers v. NLRB, 843 F.2d 770, 775-780 (3d Cir.1988), it argues that the Board erred in not creating an exception to that rule.

15
Section 8(f) of the Act permits a construction industry employer and a union to enter into a contract even though "the majority status of such [union] has not been established ... prior to the making of such agreement." 29 U.S.C. § 158(f). The parties here pursued that course. The Board applied the interpretation of § 8(f) that it adopted in Deklewa, under which an employer may not unilaterally repudiate a pre-hire agreement unless the employees have voted to decertify the union or change their bargaining representative. See Mollohan, 333 NLRB No. 162, 2001 WL 497324, at *3.

16
In Deklewa the Board changed course from an earlier interpretation that had allowed repudiation of § 8(f) agreements at any time before the union gained majority status. The Deklewa Board found that the prior interpretation was not supported by the text or legislative history of the Act, and had caused disruption and instability because "neither the parties to the agreement nor the employees working under it can know with any degree of certainty what their respective rights and obligations are at any given time." Deklewa, 282 NLRB at 1383. In fact, the Board found that the right to repudiate a § 8(f) agreement was "so antithetical to traditional principles of collective-bargaining under the Act" that it was "likely that Congress would have expressly stated such a right if it intended to create one." Id. at 1381. So it held that both parties to a § 8(f) agreement are required by §§ 8(a)(5) and 8(b)(3) "to comply with that agreement unless the employees vote, in a Board-conducted election, to reject (decertify) or change their bargaining representative." Id. at 1385. The Third Circuit enforced the Deklewa ruling, finding it to be a reasonable and permissible construction of the Act. 843 F.2d at 775-80.

17
Mollohan does not here argue that the Board's Deklewa rule is an unreasonable interpretation of the Act. In fact, the company expressly "acknowledges the soundness of the Board's ... argument that the Board has authority to adopt reasonable interpretations of the Act, to which this Court must give deference, even when the Board has changed its mind in an effort to better effectuate those policies." Emp. Reply Br. at 4. Instead, Mollohan suggests that we should not approve the Board's reliance on Deklewa, in certain circumstances, i.e., "in a case like this one where its application is critical." Emp. Br. at 19.

18
In light of the company's limited argument, we have no need to rule upon the reasonableness of the Deklewa interpretation as a whole. The narrower claim for an exception builds on the proposition that application of a generally valid rule may prove invalid in a case presenting special circumstances. See, e.g., WAIT Radio v. Federal Communications Comm'n, 418 F.2d 1153, 1157-58 (D.C.Cir.1969). But here Mollohan has pointed to no specific facts that distinguish it from any other situation in which a party to a § 8(f) agreement might wish to repudiate the agreement. So far as appears, its argument is simply that the "application is critical" in the sense that it is outcome-determinative; obviously an exception for that circumstance would obliterate the rule.

19
The employer also argues that we should apply the Board's pre-Deklewa interpretation of the Act because "this case arose within the jurisdiction of the Fourth Circuit," Employer's Brief at 20, which appears to be the only circuit to resist the Board's attempt to implement its Deklewa interpretation. See Industrial Turnaround Corp. v. NLRB, 115 F.3d 248 (4th Cir.1997). But the argument is to some degree inconsistent with Mollohan's failure to claim that the Deklewa rule is invalid. To the extent that Mollohan asks us to create special circuit law depending on the geographic origins of a case, it asks us — with no precedential support, unsurprisingly — to abandon the federal circuits' normal task of trying to determine federal law as correctly as possible. See, e.g., In re Korean Air Lines Disaster of September 1, 1983, 829 F.2d 1171, 1176 (D.C.Cir.1987) ("The federal courts spread across the country owe respect to each other's efforts and should strive to avoid conflicts, but each has an obligation to engage independently in reasoned analysis. Binding precedent for all is set only by the Supreme Court...."); compare Hill v. Henderson, 195 F.3d 671, 678 (D.C.Cir.1999) (discussing special situation where one circuit's "law of the case" is to be honored by another). Mollohan's other arguments against Deklewa, raised for the first time in its reply brief, are waived.

20
* * *

21
We now turn to the validity of specific clauses in the CBA. First is the preservation-of-work clause.

22
In a very obliquely expressed argument, Mollohan contends that the preservation-of-work clause is invalid because, it says, "it applies ... to work of a type not performed by the Employer." Emp. Br. at 17. Mollohan offers no analysis, merely citing the dissent of Board member Hurtgen from the Board decision, Mollohan, 333 NLRB No. 162, 2001 WL 497324, *2, n. 11., a dissent that in turn simply cites his own dissent in Carpenter's District Council of New York City (Mfg. Woodworkers Ass'n.), 326 NLRB 321, 328-29, 1998 WL 554504 (1998) (Hurtgen dissent), which in turn points us to two other cases, see id. at 328 (Hurtgen dissent) ("The more particularized rationale for my position is to be found in the [Painters District Council 51 (]Manganaro [Corp. Maryland), 321 NLRB 158, 1996 WL 251866 (1996)]dissent and in [Carpenters District Council of Northeast Ohio (]Alessio [Construction), 310 NLRB 1023, 1993 WL 104853 (1993)]."). A litigant must do more than simply point to the beginning of a string of incorporations by reference and ask the court to discern which arguments he seeks to advance. This is particularly true where, as here, the incorporated arguments involve contract language that differs from case to case and in all instances from the text of the clause in this case. In order to prompt a ruling from this court, Mollohan needed to at least make a rudimentary argument explaining how the words of this contract conveyed an illegal meaning. As Mollohan has failed to do so, it would be irresponsible for us to interpret the language. Thus we cannot find that the preservation-of-work clause violates § 8(e).

23
The remaining issue is posed by the successor clause. Its key parts are as follows: In the event the Employer's business is, in whole or in part, sold, leased, transferred, or taken over by sale, transfer, lease, assignment, receivership, or bankruptcy proceedings, such business and operation shall continue to be subject to the terms and conditions of this Agreement for the life thereof.

24
It is understood by this provision that the parties hereto shall not use any leasing or other transfer device to a third party to evade this Agreement....

25
In the event the Employer fails to require the purchase, transferee, or lessee to assume the obligations of this Agreement, the Employer (including partners thereof) shall be liable to the Union, and to the employees covered for all damages sustained as a result of such failure to require assumption of the terms of this Agreement, but shall not be liable after the purchaser, or lessee has agreed in writing to assume the obligations of this Agreement.

26
J.A. at 245-46. Mollohan's complaint, which the Board accepted, is that the clause violates § 8(e) of the Act insofar as it covers leases. Section 8(e) provides in relevant part:

27
It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void....

28
29 U.S.C. § 158(e). The section is designed to eliminate secondary boycotts, i.e., union attempts to pressure neutral employers to stop doing business with other businesses involved in labor disputes. See National Woodwork Mfrs. Assoc. v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). Section 8(e) does not, however, reach "primary" provisions, i.e., those encompassing "employees' activity to pressure their employer to preserve for themselves work traditionally done by them." Id. at 635, 87 S.Ct. at 1263 (emphasis added).

29
The Board noted that it "has generally considered a lease to be a form of `doing business' within the meaning of Section 8(e)," and that because the clause applies "regardless of whether the unit employees are retained," it "exceeds the legitimate primary purpose of protecting unit work and is directed at the secondary purpose of furthering union objectives elsewhere." Mollohan, 333 NLRB No. 162, 2001 WL 497324, *2.

30
But the clause in question is a successorship clause, explicitly said to take effect only when "the Employer's business is, in whole or in part" transferred to another entity. Moreover, as the ALJ correctly noted, the clause itself refers to efforts to use a lease transfer "to evade this Agreement." Id. We think it clear that the clause is designed to protect the employees' legitimate and primary interest in retaining the benefits of the CBA in the event of a transfer — as it says — of the "business." The Board's argument that the clause is secondary because it applies "regardless of whether unit employees are retained," Mollohan, 333 NLRB No. 162, 2001 WL 497324, at *2, not only overlooks the clause's limited trigger (transfer in whole or in part of the employer's "business"), but it proves too much, as the same reasoning would doom the sale language, which the Board finds acceptable. We therefore reverse the Board's finding that the leasing language of the successorship clause must be excised as unlawful.

31
* * *

32
Thus we reject all of the employer's claims but grant the union's petition with respect to the successorship clause, and we grant the Board's application for enforcement except with regard to that clause.

33

So ordered.


828 F.2d 22
U.S.v.Ayala (Jesus)
NO. 86-2685
United States Court of Appeals,Seventh Circuit.
AUG 31, 1987

1
Appeal From:  N.D.Ind.

2
AFFIRMED.


                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 04-1263
                                 ___________

Branimir Catipovic,                      *
                                         *
             Plaintiff - Appellant,      *
                                         *
       v.                                * Appeal from the United States
                                         * District Court for the Northern
Peoples Community Health Clinic,         * District of Iowa.
Inc.; Ronald W. Kemp; Sharon Duclos, *
                                         *
             Defendants,                 *
                                         *
Iowa Beef Processors, Inc.,              *
                                         *
             Defendant - Appellee,       *
                                         *
Rex Hofer; Thomas O'Rourke; Ann          *
Rogers; Black Hawk County Health         *
Department,                              *
                                         *
             Defendants.                 *
                                    ___________

                            Submitted: October 21, 2004
                               Filed: March 30, 2005
                                ___________

Before MORRIS SHEPPARD ARNOLD, JOHN R. GIBSON, and SMITH, Circuit
      Judges.
                         ___________

SMITH, Circuit Judge.
       Dr. Branimir Catipovic appeals from an order entered in the district court1
granting Iowa Beef Processors, Inc. (IBP), judgment as a matter of law in his tortious
interference with contract action against it. For reversal, Catipovic argues that the
district court erred in granting judgment as a matter of law. We disagree and affirm.

                                   I. Background
       In October 1997, Dr. Catipovic, a Croatian national, began working as a
physician for the Peoples Community Health Clinic (the Clinic) in Waterloo, Iowa.
Catipovic alleges that IBP2, one of the Clinic's largest customers, purposely caused
his termination through its coercive influence upon the Clinic's management.
Catipovic contends that IBP disliked his medical treatment of injured workers.

       Upon his hiring, Catipovic signed a contract with the Clinic called the
Physician Employment Agreement (the Agreement). The Agreement authorized the
Clinic to terminate Catipovic involuntarily for specified causes and also included a
provision for voluntary termination by either party with 120 days notice. By written
addendum, if Catipovic selected early termination he was required to pay $250,000
in liquidated damages plus attorney fees. The Clinic also had an employee handbook
that defined voluntary and involuntary separation as well as at-will termination. The
employment contract further required an annual evaluation of Catipovic.

      Director Ron Kemp managed the business affairs of the Clinic, which served
the low-income population in the Waterloo area. Kemp, who was not a physician,
could not supervise physicians. That responsibility went to co-medical directors, Dr.
Sharon Duclos and Dr. Kimberly Neumann, who reported administrative issues to
Kemp. Duclos directly supervised Catipovic. Duclos claimed she evaluated

      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
      2
       IBP, a meat packing plant, is Waterloo's second largest employer.

                                         -2-
Catipovic, but she found no records verifying this review. Catipovic did not recall any
performance review, although he admitted Duclos did discuss his performance once
during his first year.

      During the two years of his employment, Catipovic and the Clinic management
clashed regarding standards employed when ordering medical work-releases for IBP
employees.3 While at the Clinic, Catipovic wrote hundreds of work-releases for IBP
employees. Some listed specific work restrictions, while others only stated "can't
work." Work-releases are a significant cost concern for IBP.4 In late fall 1997 or early
1998, Lori Seals, the IBP medical case manager, brought the number of releases
written by Catipovic to the attention of IBP human resources manager, Rex Hofer.
Hofer, in turn, discussed the matter with senior plant management.5

      Based upon these discussions, Hofer requested a meeting with the Clinic to
discuss the work-release issue. This meeting was held on February 23, 1998 and
included Seals, Hofer, Catipovic, Duclos, and Kemp. At the meeting, workers'
compensation procedures and IBP's policies were discussed. IBP requested that the

      3
        Out of approximately 2000 workers, 700 to 800 were Bosnians. IBP readily
recruited these workers because of their stability and work ethic. Because of his
familiarity with their language and culture, Catipovic communicated well with these
patients and served as the primary care physician for many.
      4
       Labor is IBP's largest controllable cost. It uses a safety measurement score
point system to track workers' compensation injuries. Each plant is assigned a point
goal by corporate headquarters. Points are incurred when an employee visits a
physician for a work-related injury.
      5
        IBP management held regular meetings to discuss the plant score and how to
keep it low. IBP is self-insured for workers' compensation and for medical insurance,
which does not cover work-related conditions. Injured workers were placed on light
duty when possible because they were fully compensated. Workers totally unable to
work received two-thirds salary compensation.

                                          -3-
work-releases be more specific to determine whether they were job related. Seals
recollected that the meeting went well.

       Also early in 1998, Catipovic discussed an IBP patient situation with Joan
Hoeft, director of special projects at the Clinic. Catipovic expressed concern that a
patient he had placed on work limitations was returned to work at a light duty level
in an undesirable plant position. Catipovic believed IBP used the assignment as a
punitive measure. Hoeft offered to call IBP because she thought Catipovic would be
too offensive if permitted to contact IBP directly. Hoeft called Hofer at IBP who in
turn called Kemp.

      Kemp and Hofer discussed the impact of the work-releases on IBP employees.
Catipovic was told that the union representative reported IBP employee concerns
about salary loss due to medical work-releases. For the Clinic, Duclos again told
Catipovic to be as specific as possible and write work limitations in preference to
complete work-releases.

       About eight months later, in October 1998, Hofer again contacted Kemp about
two of Catipovic's work-releases that stated simply "can't work." Kemp noted Hofer
wanted employees with possible work injuries to be sent back to IBP for a second
evaluation. Neumann was also aware of IBP's concern with Catipovic's work-releases.
Hofer denied any further contact with Kemp or the Clinic to discuss work-releases,
but testified that IBP's nursing staff called the Clinic personnel to discuss day-to-day
situations. Catipovic also produced evidence that on May 18, 1998, Schmitz, IBP
plant manager, endorsed Kemp's request that IBP Foundation contribute to the Clinic.
IBP agreed to give $10,000 per year for 10 years. The first installment was made in
July 1998. Catipovic was terminated in September 1999.

      According to the Clinic, it terminated Catipovic because of problems with his
treatment of tuberculosis (TB) patients and because of patient complaints due to his

                                          -4-
rudeness, demeanor, and foul language. In November 1997, Black Hawk County
Health Department director Tom O'Rourke told Kemp he did not believe Catipovic
was following Center for Disease Control (CDC) guidelines for the prophylactic
treatment of persons testing positive for TB. Ten of Catipovic's Bosnian patients were
reviewed and his prophylactic treatment for eight of them was deemed insufficient.
The County Health Department also expressed concern about Catipovic's failure to
return documentation.

       In September 1999, the issue resurfaced. The County Health Department
formally requested that the Clinic not permit Catipovic to see any more patients with
TB related problems unless the chart was co-signed by the Clinic's medical director,
that there be a complete chart review of all TB patients referred to Catipovic, and
Catipovic be referred to the appropriate licensing and oversight board(s) for their
review. O'Rourke felt it necessary to bring the Clinic practice into conformity with
CDC standards. O'Rourke also contemplated making formal complaints to the State
Health Department, Board of Examiners, and relevant federal entities.

       On September 21, 1999, the Clinic's board of directors' executive and personnel
committees approved a recommendation to terminate Catipovic's employment. On
September 27, 1999, pursuant to the voluntary termination provisions, Catipovic's
contract was terminated under Article IX, effective January 25, 2000. Catipovic
questioned the termination, but the Clinic refused to specify a reason. Catipovic filed
a complaint with the Iowa Civil Rights Commission. The Clinic responded,
identifying two problem areas–Catipovic's treatment of TB patients, and interpersonal
relationships with patients, staff, and community organizations. The Clinic further
indicated there had been complaints from patients regarding Catipovic's perceived
rude, inconsiderate, unconcerned, and hostile response to patients. The Clinic made
no mention of IBP.

                                         -5-
       Catipovic sued IBP for tortious interference with contract. At trial, the district
court denied IBP's motion for summary judgment, but at the close of Catipovic's case
IBP's motion for judgment as a matter of law was granted. Catipovic appeals from
this judgment.

                                     II. Discussion
       We review the district court's judgment de novo. Bergstrom-EK v. Best Oil Co.,
153 F.3d 851, 857 (8th Cir. 1998). Whether judgment as a matter of law is
appropriate "is judged by viewing the evidence in the light most favorable to the
nonmoving party and giving him or her the benefit of all reasonable inferences from
the evidence, but without assessing credibility." Harvey v. Wal-Mart Stores, Inc., 33
F.3d 969, 970 (8th Cir. 1994). On appeal, we must: "(1) consider the evidence in the
light most favorable to [Catipovic]; (2) assume that all conflicts were resolved in
favor of [Catipovic]; (3) assume as proved all facts that [Catipovic's] evidence tended
to prove; (4) give [Catipovic] the benefit of all favorable inferences that may
reasonably be drawn from the proved facts, and [reverse and remand to the district
court] unless all the evidence points one way and is susceptible of no reasonable
inferences sustaining [Catipovic's] position." Denesha v. Farmers Ins. Exchange, 161
F.3d 491, 497 (8th Cir.), cert. denied, 526 U.S. 1115 (1999).6

      6
       IBP wrongly argues that in Dace v. ACF Industries, Inc., 722 F.2d 374, 376
n.4 (8th Cir. 1983), we indicated in cases involving diversity jurisdiction, the state
law standard for directed verdict, permitting use of unfavorable evidence, is
employed. But that is not what we held. In note 4 we stated:

      We are aware of two cases in which this Court endorsed a standard for
      directed verdicts that allowed consideration of unfavorable evidence.
      State Farm Mut. Auto. Ins. Co. v. Borg, 396 F.2d 740, 742 (8th Cir.
      1968); Hanson v. Ford Motor Co., 278 F.2d [586, 590 (8th Cir. 1960)].
      However, both cases involved diversity jurisdiction, and the Court
      applied the Minnesota standard for directed verdicts, not the federal
      standard.

                                          -6-
                          A. Judgment As a Matter of Law
                        7
       Under Iowa law, a claim for tortious interference with contract includes five
elements. Applied to this case, Catipovic could prevail on his claim if the evidence
showed: (1) he had a contract with the Clinic; (2) IBP knew of the contract; (3) IBP
intentionally and improperly interfered with the contract; (4) IBP's interference
caused either the Clinic or Catipovic not to perform the contract; and (5) he incurred
damage. See Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 399 (Iowa 2001);
Revere Transducers, Inc. v. Deere & Co., 595 N.W.2d 751, 763 (Iowa 1999); Nesler
v. Fisher and Co. Inc., 452 N.W.2d 191, 198 (Iowa 1990); Iowa Civil Jury
Instructions 1200.1 (2002). The absence of any single element ends the inquiry.

       In granting IBP's motion for judgment as a matter of law, the district court
found Catipovic had been fully heard and that "there is no legally sufficient
evidentiary basis for a reasonable jury to find for [Catipovic]." The court specifically
found his proof failed to establish element three–intentional interference, but also
noted it found his evidence suspect as to elements two and four as well. In its brief,
IBP correctly notes that we may affirm the district court on any grounds supported in
the record. Ozark Heartland Elecs., Inc. v. Radio Shack, 278 F.3d 759, 763 (8th Cir.
2002). IBP urges us to hold that Catipovic failed to establish elements two and four.
Upon review, we find merit in IBP's argument and affirm the district court based upon
insufficiency of proof as to element four–causation.

      Granting Catipovic all reasonable inferences, as we must do, we will assume
his evidence was sufficient to enable a reasonable jury to find in his favor as to
elements one, two, and three. However, his proof as to causation is so lacking that a

      7
       Catipovic's originally filed a complaint in the United States District Court
alleging breach of several federal statutes. The district court entertained Catipovic's
tortious interference claim against IBP, essentially a state action, under 28 U.S.C. §
1367 (supplemental jurisdiction), applying Iowa substantive law.

                                          -7-
jury's inference that IBP's conduct caused Catipovic's termination would not be
reasonable and would be no more than speculation.

       Proximate cause is normally a question for the jury. Spaur v. Owens-Corning
Fiberglas Corp., 510 N.W.2d 854, 858 (Iowa 1994). "A directed verdict may only be
granted on the issue of proximate cause where the facts are clear and undisputed and
relation to cause and effect so apparent to every candid mind that but one conclusion
may be fairly drawn therefrom." Oak Leaf Country Club Inc. v. Wilson, 257 N.W.2d
739, 746 (Iowa 1977). The question is whether IBP's conduct was a substantial factor
in causing Catipovic's termination, and whether Catipovic would have been
terminated without IBP's actions. Iowa Civil Jury Instructions 700.3 (1996) (conduct
of a party is a proximate cause of the damage when it is a substantial factor in
producing damage and when the damage would not have happened except for the
conduct). While a jury could have reasonably concluded IBP's actions were a
substantial factor in Catipovic's termination, it would have been unreasonable for a
jury to conclude that the Clinic would have retained Catipovic except for IBP's
conduct.

       The record reflects contact between IBP and the Clinic regarding Catipovic's
medical work-releases in February 1998 and again in October 1998. The contacts
were limited and did not establish an effort on IBP's part to entice or coerce the Clinic
to terminate Catipovic. The evidence does not show any additional contact between
IBP's management and the Clinic before his termination nearly a year later.
Catipovic's only proof of a possible inducement was IBP's May 1998 pledge to donate
funds to the clinic over the course of ten years.8 However, the amount constituted

      8
        The Clinic's donation request was for $50,000.00 per year for ten years. In a
letter Schmitz indicated this request was "substantial" and was "out of the range of
normal contributions pledged by I.B.P." but recommended that "I.B.P.'s involvement
be of the highest level that the foundation committee finds acceptable." The IBP
Foundation granted $10,000.00 a year for ten years.

                                          -8-
only a fraction of the Clinic's annual 5 to 6 million dollar budget. The evidence does
not show any link between the pledge and the termination of Catipovic's contract.

       The record is clear however, that beginning in 1997, and just prior to
Catipovic's termination, the Clinic, not IBP, had serious concerns regarding the
performance of his contract. Catipovic's termination occurred within days of the
issuance of a letter from the County Health Department sharply criticizing Catipovic's
treatment of TB patients. The letter requested seven specific actions by the Clinic,
including two directly addressing Catipovic's inadequate care of patients. Within days
of this communication, the Clinic board met and decided to terminate Catipovic's
contract. These facts indicate that Catipovic's employer had longstanding concerns
with his services quite apart from his writing work-releases for IBP employees.
Further, in response to the complaint filed with the Iowa Civil Rights Commission,
the Clinic never mentioned IBP as part of the reason for Catipovic's discharge. A
reasonable jury would not have been able to conclude that but for IBP's actions
Catipovic would have been retained as an employee.

       While the better practice is to permit the jury to decide the case before ruling
on the motion for judgment as a matter of law, in the instant case, we cannot say the
district court committed reversible error. For the foregoing reasons, we affirm the
district court's grant of judgment as a matter of law.9

      9
        Catipovic makes two additional evidentiary arguments–(1)the court erred in
limiting each party to fifteen hours and (2) the court erred when it limited the use of
Catipovic's testimony of Kemp's out-of-court statements. As Catipovic failed to
object at the district court level, we review for plain error, United States v. Kirkie, 261
F.3d 761, 770 (8th Cir. 2001) (without objection the court reviews for plain error and
reverses only if the error prejudices substantial rights of the party and would result
in a miscarriage of justice). We find no plain error in the district court's evidentiary
rulings.
                                            -9-
JOHN R. GIBSON, Circuit Judge, concurring specially.

       I concur fully in the opinion of the court today. However, I have two concerns
with the conduct of the trial that cause me to expand upon the court’s discussion.

      By pre-trial order, the district court limited the trial time to thirty hours,
dividing the time equally between plaintiff and defendant. Each party's fifteen hours
included jury selection, opening statements, direct and cross examination of
witnesses, hearings outside the presence of the jury on objections and other matters,
and closing arguments. The court told counsel, "[W]hen you're on your feet, the
clock is running." The stop-watch was kept by the judge's law clerk. Catipovic
argues that the court erred in so limiting his case. As the court today correctly
concludes, Catipovic failed to preserve this objection; when the district court asked
him, after his last witness, whether he had more evidence, counsel replied, "There is
none, Your Honor."

      Under these circumstances, I agree that there is no reversible error, but
nevertheless, I think it is well to recall the language in Johnson v. Ashby, 808 F.2d
676, 678 (8th Cir. 1987), penned by the late Judge Richard Sheppard Arnold:

            Trial courts have discretion to place reasonable limits on the
      presentation of evidence to prevent undue delay, waste of time, or
      needless presentation of cumulative evidence. See Fed. R. Evid. 403,
      611; MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d
      1081, 1171 (7th Cir.), cert. denied, 464 U.S. 891, 104 S. Ct. 234, 78 L.
      Ed.2d 226 (1983); United States v. Article of Drug Consisting of 572
      Boxes, More or Less, 415 F.2d 390, 392 (5th Cir. 1969). “[I]n this era
      of crowded district court dockets federal district court judges not only
      may but must exercise strict control over the length of trials.” Flaminio
      v. Honda Motor Co., Ltd., 733 F.2d 463, 473 (7th Cir. 1984).
      Nonetheless, it may be an abuse of the trial court’s discretion to exclude
      probative, non-cumulative evidence simply because its introduction will
      cause delay, and any time limits formulated in advance of trial must be

                                        -10-
      fashioned with this in mind. Such limits should be “sufficiently flexible
      to accommodate adjustment if it appears during trial that the court’s
      initial assessment was too restrictive.” MCI, 708 F.2d at 1171
      (footnote omitted).

             Accordingly, we join the Seventh Circuit in disapproving rigid
      hour limits such as those initially suggested here. See Flaminio, 733
      F.2d at 473 (disapproving a rigid hour limitation involving a time-
      keeping method “almost as complicated as in a professional football
      game.”) We further think that limits like those ultimately adopted by the
      District Court, if too strictly adhered to, would also be improper.

       Further, with respect to the district court’s grant of judgment as a matter of law
at the conclusion of plaintiff’s evidence, I think it also well to remember language
also penned by Judge Richard Arnold in Dace v. ACF Industries, Inc., 722 F.2d 374,
379 n.9 (8th Cir. 1983), adhered to on denial of rehearing, 728 F.2d 976 (8th Cir.
1984):

             This case illustrates again that it is usually better practice for a
      district court, faced with a motion for directed verdict, to allow the case
      to go to the jury, and address the issue by way of judgment n.o.v. if
      necessary. The jury may find for the moving party, in which case the
      issue disappears. If the verdict is against the moving party, and if
      judgment n.o.v. is granted, and if this Court decides on appeal that it
      should have been denied, the verdict can simply be reinstated, and no
      new trial is necessary.

                        ______________________________

                                          -11-


                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                              No. 11-6237

THOMAS SHANE MATHERLY,

                  Petitioner – Appellant,

          v.

TRACY W. JOHNS,

                  Respondent – Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:10-hc-02091-BO)

Submitted:   April 28, 2011                   Decided:   May 4, 2011

Before DAVIS, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas Shane Matherly, Appellant Pro Se. Joshua Bryan Royster,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Thomas    Matherly     appeals    the   district     court’s   order

denying relief on his 28 U.S.C.A. § 2241 (West 2006 & Supp.

2010)   petition.      We   have    reviewed     the    record    and   find   no

reversible error.      Accordingly, we affirm for the reasons stated

by the district court.        Matherly v. Johns, No. 5:10-hc-02091-BO

(E.D.N.C.   Jan.     28,   2011).     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


Error: Couldn't open file '/var/www/court-listener/alert/assets/media/pdf/2009/04/17/Jones_v._Us.pdf': No such file or directory.


235 Cal.App.2d 465 (1965)
ROBERT G. BROWNLEE, Plaintiff and Respondent,
v.
ALFRED VANG et al., Defendants and Appellants.
Civ. No. 519.
California Court of Appeals. Fifth Dist.
June 28, 1965.
 William F. Reed and Carl Hoppe for Defendants and Appellants.
 James W. Funsten for Plaintiff and Respondent.
 BROWN (R. M.), J.
 This is an appeal by the defendant-appellant from an adverse judgment rendered by the court in an action based upon the theory of fraud. By the judgment the plaintiff was awarded $4,500 as compensatory damages, $3,000 as exemplary damages, and his costs of suit. The action was brought against Alfred Vang, Ann Vang and Magnatron Corporation of America, Inc. The court found that no liability attached to Ann Vang. It was stipulated that, for the purpose of this lawsuit, the defendant Alfred Vang and the defendant Magnatron Corporation of America, Inc. are one. For convenience, the word "defendant" as herein used will be a reference to Alfred Vang.
 The sole question presented by the appeal is whether the evidence supports the trial court's finding that the plaintiff relied upon the false representations made by the defendant and that such reliance was justified.
 The Facts
 [1a] The plaintiff met the defendant, Alfred Vang, and the latter's wife, Ann Vang, in the latter part of 1947 or the early part of 1948 in Carmel, California. They became friends. At that time the plaintiff was a merchant seaman. He had recently married and was desirous of obtaining a shore job. Although he had attended the Colorado Junior College for three years and Hastings College of the Law for one year, he had neither training nor experience in engineering, science, or business. He had never made investments in stocks or bonds. His savings amounted to $4,000. The defendant told the plaintiff that he was an engineer and had studied at the University of Copenhagen; that he was an associate of Neils Bohr, a famous scientist, and had worked with Bohr on the Manhattan Project; that he had worked for the Federal Defense Department over a period of years and was called to Washington for *467 consultation from time to time; that he had designed and developed numerous electronic processes and items including the first automobile valve of the type still in use today; that he was a partner in the firm of Stevenson, Jordan and Harrison, one of the biggest of the research and development companies in the United States; that he owned and operated a factory in the east which was producing welding machines; that he had invented an electronic tube which General Electric and other leading manufacturers were very much interested in; that he had invented a panel which he used with the electronic tube the use of which was practically unlimited; that he had a contract with Electrical Products Company of Los Angeles to produce the panels; that he was developing a fog dispersion machine at the Monterey airport; and that he had developed a welding machine which was in production and was being sold in the east. In October 1948, the defendant told the plaintiff that he was negotiating for a plant on the Monterey peninsula for the purpose of putting his electronic tube into production and asked to borrow $6,000. He promised the plaintiff a position with him in his project. On October 23, 1948, the plaintiff loaned the defendant his savings of $4,000 and received a promissory note executed by the defendant promising to repay the sum with interest 60 days thereafter. He relied in part upon the representations of the defendant made directly to him, and in part upon an article which appeared in the October 13, 1947, issue of the Monterey Peninsula Herald, and information therein which originated with the defendant, which spoke in glowing terms of the defendant, his reputed background as an electronic inventor, and of a revolutionary invention which would disperse fog which the defendant was reportedly building and should have ready for testing about two weeks after the article appeared. The plaintiff also testified that he had seen the electronic tube and relied upon its functioning properly before he loaned the defendant the money. Shortly after the loan was made the defendant left the community and went to Berkeley. He failed to repay the loan. When the loan became due the plaintiff telephoned the defendant; the defendant reassured the plaintiff that everything was working out; that he had started a company with one George Hart. The plaintiff testified, "I felt he was a pretty important man and I didn't feel as though I wanted to badger him about the thing, and I felt that it was all right, that I would just--I would go along with *468 it more or less at his convenience, but I would like to have it back." The defendant also told the plaintiff that the panel was being used to drive a vibrator and that people from the University of California were very interested in the invention. About the middle of 1949, the plaintiff was told by George Hart that the defendant had left Berkeley and had removed to Vancouver, Canada. The plaintiff had several conversations with the defendant, who continually assured the plaintiff that his various enterprises were going well. He explained that George Hart had "locked him out" of the Berkeley plant and he had moved to Canada. He invited the plaintiff to come up to Canada and he would show the plaintiff what he was doing. On October 13, 1949, the plaintiff filed an action in the Superior Court of Monterey County in an attempt to collect on the note. Vang was never served. Subsequently the plaintiff asked Dun & Bradstreet to investigate what the defendant was doing in Canada. Dun & Bradstreet collected $500 on the note. The defendant asked the plaintiff to call off Dun & Bradstreet. In June of 1950 the plaintiff went to Canada and spent a "couple" of days with the defendant. The defendant showed him what they were doing, showed him drawings and parts of an electronic hammer, told him that he had a number of contracts for the equipment, told him that the defendant and one Eggleton had formed one company and were forming a second, gave a demonstration with the panel device, and suggested that he take stock in the companies in lieu of the amount of the debt. The plaintiff testified: "I went up there pretty mad at Fred and I went away pretty happy with him. This appeared to me, from what he told me--the thing looked practical and looked as though his panels were a complete success." On some unspecified date between July 28, 1950, and March 5, 1951, the plaintiff cancelled the note in exchange for shares of stock in Magnatron Hammer Company, Ltd. and Magnatron Panel Company, Ltd., the two Canadian companies. The plaintiff returned for trips to Canada in 1951 and again in 1953, and attended shareholders' meetings. Although no dividends were paid on the stock, he received corporate financial statements showing that the companies were solvent. On some date between April 28, 1953, and January 13, 1954, the plaintiff purchased from one Joe Jordan further shares of stock in the two companies for $400. During the period from 1950 to 1955, the plaintiff also expended time and moneys in attending meetings in *469 Canada and preparing himself for the purpose of participating in projects of the defendant. At intervals during this period of time the defendant gave glowing progress accounts to the plaintiff and assured him that he would have a good position with the projects as soon as they got into production. The plaintiff testified: "Well, we were friendly, and then I felt unfriendly toward Fred; then we would get together, and it would be friendly again, and then it would continue to be that way." As late as 1960, just before this suit was filed, the defendant continued to reassure the plaintiff. In 1955 the plaintiff engaged the law firm of Lawrence, Shaw, McFarlane and Stewart to attend a shareholder's annual meeting and send him a report. The attorneys' report was unfavorable and suggested that stock in the defendant's companies was watered. The trial court found:
 "I. Commencing in the year 1947 and continuing through the year 1955 defendant Alfred Vang represented to plaintiff that said defendant was a university educated electronics scientist with experience in electronics research and development and with professional associations with leading scientists. Continuously during said period, Alfred Vang represented to plaintiff that he, Alfred Vang, had perfected several different devices employing a unique electronics tube and circuit system developed by said Alfred Vang which devices were of great commercial value for immediate use in electroplating hard rock drill bits, aluminum smelting, industrial hammers, welding and other uses. Continuously during said period said Alfred Vang represented that he was able to, and intended to, make immediate commercial application of said devices and provide plaintiff employment in connection with said project."
 "II. Continuously during said period of time there was a relation of personal trust and confidence between the plaintiff and the defendant Alfred Vang."
 "III. Said representations were false. Said Alfred Vang did not have any university or college education. Said Alfred Vang did not have certain electronics research and development experience that he claimed to have. Said Alfred Vang did not have professional associations with leading scientists. Said Alfred Vang knew he was unable to, or had intention [sic] to, make commercial application of his devices and he never had any intention to provide employment for plaintiff. Said Alfred Vang made said representations *470 regarding said projects for the purpose of raising money for his use and to promote his own interests and without any intention to carry out the projects."
 "IV. Said representations were made by said Alfred Vang with the intent to deceive plaintiff Robert G. Brownlee. Said plaintiff reasonably relied upon the said representations above set forth, and each of them, and in reliance thereon, gave Alfred Vang $4,000 of which $3,500 remains unreimbursed, and thereafter purchased worthless stock in reliance thereon at a cost of $400, and expended additional time and money for attendance at the corporation meetings of the projects of Alfred Vang and for preparation of himself to participate in the projects of said Alfred Vang, all to the damage of Robert G. Brownlee in the total sum of $4,500."
 "V. Before June 27, 1955, said Robert G. Brownlee had neither discovered the fraud nor failed to exercise due diligence to discover the fraud. Before June 27, 1955, Robert G. Brownlee did not have the means of discovering the fraud and could not have discovered it in the exercise of due diligence. On said June 27, 1955, said Robert G. Brownlee must be deemed to have notice of said fraud on account of the continued failure of Alfred Vang to do what he said he intended to do and also on account of the letter received said day from Canadian attorneys stating suspicions of watered stock."
 "VI. * * *"
 "VII. The representations of said Alfred Vang were made as part of a continuous fraudulent and malicious course of conduct whereby he obtained money from numerous people as investments in projects which he never had any intention of carrying out."
 Argument and the Law
 The defendant does not challenge the trial court's findings relating to the misrepresentations or damages. The only charge of error is that the trial court erred in finding that the plaintiff reasonably relied upon the representations of the defendant. It is claimed that the evidence is to the contrary. The plaintiff testified at length; the defendant did not testify and apparently was not present at the trial, but portions of a prior deposition which he had given were read into the record. That record is voluminous. The reporter's transcript embraces 813 pages; the clerk's, 254 *471 pages; there are 179 interrogatories with answers; and more than 150 exhibits were received in evidence. From this vast record, the defendant has selected isolated items of evidence with which to persuade this court that the plaintiff, rather than relying upon representations of the defendant, took a calculated risk in the projects of the defendant in the hope of ultimate financial gain.
 The defendant argues that, at the outset, the defendant promised to repay to the plaintiff the sum of $4,000 within 60 days; that he defaulted and left the community. The plaintiff testified that the first statement made by the defendant that he thought was false was the promise to pay the money, which promise was not kept; that the next statement was when the defendant told the plaintiff that the defendant was going to remain in the Monterey area, but did not do so and left the community; that he discovered the falsity of that statement in the fall of 1949. The plaintiff also testified that the defendant represented he was going to build a fog dispersal machine in Monterey, which he did not do. This the plaintiff learned in 1949. The plaintiff testified that he relied in part on the newspaper article that the fog dispersing machine would be ready for testing in late October 1949; but made no investigation to determine whether or not the machine had been completed. The plaintiff further testified that prior to the exchange of the note for the stock, he had a conversation with George Hart in San Francisco and Hart told the plaintiff that the defendant never finished any of his work. On July 4, 1949, the plaintiff wrote to the defendant and stated, in part, "... On October 23 of this year your 60 day note for the $4,000 loan I made you will be 10 months overdue." The defendant also points to the lawsuit which the plaintiff filed in Monterey County in an attempt to collect on the note, and the fact that he had Dun & Bradstreet investigate the defendant's activities in Canada and attempt collection. On March 31, 1950, the plaintiff wrote to the defendant stating in part: "Got your latest promise the other day through Dun and Bradstreet. If you have plans for skipping out of Canada without notice with the idea of raising a little money and losing me at the same time--don't do it."
 When questioned concerning this letter, the plaintiff testified: "As far as keeping his promise to pay the money to me my confidence had dropped to a rather low ebb ..." The defendant contends that the plaintiff's testimony summarized *472 above shows that he did not rely upon representations made by the defendant. Nevertheless, with knowledge of the many promises which had been unfulfilled, the plaintiff negotiated his first five shares of stock in Magnatron Hammer, Ltd. on July 25, 1950. About six months later, on January 5, 1951, the plaintiff complained by letter to the defendant, "... as you will recall, in 1948 when I made you the loan it was made with the understanding that I was to be given a chance to work for you." In a subsequent letter of February 8, 1951, the plaintiff admitted: "... When I suggested in my last letter that I was willing to take a final chance by accepting a transfer of stock I meant just that. I had no idea at that time, nor do I have any idea now, when you will get into production, or if you ever will."
 Shortly after writing that letter and on March 5, 1951, the plaintiff obtained 15 shares in Magnatron Panel Company, Ltd., and 24 shares in Magnatron Hammer Company, Ltd., and cancelled the note.
 In April 1953, the plaintiff purchased stock from Joe Jordan; at that time he knew that he had not received any dividends on the stock which he had acquired in 1950 and 1951. Also at this time he knew that there had been no commercial production in any of the defendant's ventures up to that date.
 If the testimony on which the defendant relies was the sole evidence on the subject, it would be difficult to say that the plaintiff placed any reliance on the representations made by the defendant after the note was in default and the defendant had moved from the Monterey area. But it is not. The record is replete with testimony concerning telephone calls over the interval from 1949 through 1954 in which the defendant constantly explained difficulties he was encountering, soothed away the plaintiff's fears, gave glowing accounts of his various inventions, their marketability, desirability to manufacturers, and their potential worth. The defendant's wife, Ann Vang, wrote several letters to the plaintiff. One such letter, written on December 2, 1949, and authorized by the defendant, thanks the plaintiff for his patience; states that certain panels and electric hammers were being built to be shipped to California and would be in San Francisco no later than January 15th; that an attorney had been appointed to form a company for the immediate production of hammers; and that as soon as the hammers arrived in San Francisco the plaintiff could be paid in money or stock. The letter extolled the efficiency and low cost of *473 the hammers and their usefulness and salability. Mr. George Hart, who had been associated with the defendant in Berkeley, told the plaintiff that the equipment was good and that it would do the things the defendant claimed it would do. It was not until August 24, 1957, that the plaintiff learned for the first time that the electronic tube, which was claimed by the defendant to be a basis of his various inventions, did not work. It was not until after this suit was filed that plaintiff learned the hammer and panel were not inventions of the defendant. After 1957, plaintiff reached the conclusion that Vang's promises were made without the intention to perform, and this was after he had the opportunity of discovering that the defendant had a long history of promotional companies. Even as late as 1960, about a month before this suit was filed, the defendant again stated to the plaintiff that the projects in Canada were being successfully completed, and he furnished the plaintiff with what purported to be a financial statement and again attempted to allay the plaintiff's suspicions of fraud and assure him that defendant would protect his interests.
 [2] It is elementary that to make out a case of misrepresentation, the plaintiff must show not only a representation of a material fact upon which he was entitled to rely, but that he did in fact rely to his damage. (Edwards v. Lang, 198 Cal.App.2d 5 [18 Cal.Rptr. 60]; Eck v. McMichael, 176 Cal.App.2d 368 [1 Cal.Rptr. 369].) [3] Whether or not fraud exists, including the element of reliance, is ordinarily a question of fact for the fact-finding entity. [4] As this court said in Vogelsang v. Wolpert, 227 Cal.App.2d 102, 110-111 [38 Cal.Rptr. 440]:
 "Because of the diversity of factors and the differing intelligence of those guilty of fraud and their victims, the function of the trial judge in fraud cases is particularly significant. It is the duty of the judicial officer who sees and hears the witnesses to determine the weight and effect of their evidence; if there is any substantial showing of fraud the trial court must determine whether it outweighs the testimony presented by the opposing side; and his decision is ordinarily final in matters of this kind; appellate courts will not disturb a finding of fraud if there is any substantial evidence to support the lower court's decision. [Citations.]"
 "As a determination of the existence of fraud is particularly within the decisional field of the trial judge, the *474 appellants are attempting to swim upstream against a strong current of authority when they maintain that there was no such showing in the long record, and in effect that this court should pass again upon the factors which the trial court found to be indicative of fraud."
 [5] And at pages 111-112: "As is observed in Feckenscher v. Gamble, supra, 12 Cal.2d 482, 496-497 [85 P.2d 885]: ' "That plaintiff is too credulous is not generally a defense. 'The test of the representation is its actual effect on the particular mind, whether it is a strong and circumspect mind, or one weak and too relying.' " (Neff v. Engler, 205 Cal. 484, 489 [271 P. 744].)' "
 Plaintiff points to the case of Blackman v. Howes, 82 Cal.App.2d 275, where the court, in considering the issue of justifiable reliance, said at pages 278-279 [185 P.2d 1019, 174 A.L.R. 1004]: "When the facts are susceptible to opposing inferences, whether a party relied upon a false representation, notwithstanding prior information which, if investigated, might have led to discovery of the falsity of the representation, is itself a question of fact to be determined by the trier of fact. [Citation.] Where one is justified in relying, and in fact does rely, upon false representations, his right of action is not destroyed because means of knowledge were open to him. In such a case, no duty in law is devolved upon him to employ such means of knowledge. [Citation.]"
 " 'The mere circumstance that one makes an independent investigation or consults with others does not necessarily show that he relied upon his own judgment rather than upon the representations of the other party, nor does it give rise to a presumption of law to that effect.' [Citation.] A buyer is not chargeable with knowledge of conditions which he fails to discover because of some deception of the seller. [Citations.] When, as here, the buyer has only a suspicion of fraud and the seller lulls the buyer into inaction by a false representation, the seller will not be permitted to assert that the buyer lost his rights by accepting the assurance of the seller that there was no fraud. [Citation.]"
 In Bank of America v. Greenbach, 98 Cal.App.2d 220, at page 233 [219 P.2d 814], the court said: "It is, of course, the law that a party has a duty to investigate where he has notice of facts which indicate fraud. [Citations.] But this duty to investigate is a relative matter. The creditor has a legal right to rely upon the statements made by the debtor. If the debtor is guilty of deliberate fraud, it is not *475 good morals, nor does it make good sense or good law, to say that the creditor was too credulous because he placed too much reliance on the statements made by the fraudulent debtor, and is therefore barred."
 At page 234, the court said: "It is also well settled that when a fact is peculiarly within the knowledge of the person making the representation and not within the knowledge of the person to whom it is made, the latter has the right to rely upon the representations of the former respecting such fact."
 The trial court found that during the period here involved there was a relation of personal trust and confidence between the plaintiff and the defendant, and that finding stands unquestioned.
 In volume 23, California Jurisprudence, Second Edition, Fraud and Deceit, section 31, pages 75-76, it is said: "A person has a right to rely on statements of material facts essentially connected with the substance of the transaction where there is a confidential relation existing between the parties, and such reliance cannot be charged as negligence. ... A similar situation exists where one of the parties is ignorant and inexperienced in regard to the matters concerning which the material representations are made, and such ignorance is known to the other party, who is also aware that reliance is being placed on his representations and that the facts are not, and cannot be expected to be, within the first party's knowledge."
 The court, in Bank of America v. Greenbach, supra, 98 Cal.App.2d 220, said at page 235: "[T]he question as to whether the known facts were sufficient to put the defrauded person on inquiry is one of fact for the trial court. ... '... Whether or not the plaintiff was negligent in relying upon the truth of the defendant's representations seems to be immaterial. If under the facts, because of the relation of the parties, involving trust and confidence, or because the representor was in a position to know the facts which was definitely superior to that of the representee, or where an investigation by the representee could not be easily made, the courts hold that he was justified in relying on the truth of the false statements.' "
 In Garrett v. Perry, 53 Cal.2d 178 [346 P.2d 758], the issue of justifiable reliance on the part of the person defrauded was raised. Mr. Chief Justice Gibson, speaking for the Supreme Court, made brief disposition of the contention. *476 At pages 181-182, he stated: "The fact that a buyer makes an independent investigation does not preclude him from relying on representations made by the seller where, as here, the seller has a superior knowledge. [Citation.] Nor did the receipt of some unfavorable information preclude plaintiff from such reliance as a matter of law. [Citation.] The trial court could properly conclude that any suspicions of plaintiff arising from the information he had obtained upon his investigations were allayed by defendant's subsequent reassurances and that under the circumstances of this case plaintiff was not precluded from relying upon what defendant told him."
 In volume 23 of California Jurisprudence, Second Edition, Fraud and Deceit, section 39, at page 97, it is said: "..., a party's suspicions may have been reasonably allayed by the other party's positive reassurances or representations."
 In Kalkruth v. Resort Properties, Ltd., 57 Cal.App.2d 146, at page 150 [134 P.2d 513], the court said: "We believe that when, as here, the buyer has only a suspicion of the fraud, and the seller who has defrauded the buyer, lulls the buyer into a sense of security by both words and conduct, the seller should not be permitted to assert that the buyer had lost his rights by waiving the suspicion and accepting the reassurance of the seller that no fraud had been perpetrated."
 [1b] In this case the defendant purported to be an expert in the field of electronics; the plaintiff was ignorant concerning such matters. Through friendship a relation of trust and confidence existed between them. The misrepresentations made relative to a subject matter of which the plaintiff had no knowledge were not such that their falsity must have been so obvious to the plaintiff as to preclude any justifiable reliance thereon by him. Further representations, made as statements of fact and not of opinion, dealing with contracts which the defendant had entered into with other firms, the potential production of and income from his claimed inventions, designed to allay the suspicions of the plaintiff, were themselves misrepresentations calculated to deceive. That they accomplished their purpose should not now redound to the benefit of the defendant. [6] It cannot be said that the plaintiff was more credulous than the average person would have been. The record shows that others invested in the projects and various corporations formed by the defendant and lost. It was said in the case of Sanfran Co. v. Rees Blow Pipe Mfg. Co., 168 Cal.App.2d 191, at pages 202-203 [335 P.2d 995]: *477
 "In De Spirito v. Andrews, 151 Cal.App.2d 126, the court said at page 130 [311 P.2d 173]:"
 " 'It is a general rule that a vendor not in a confidential relation to the buyer is not under a duty to make full disclosure concerning the object which he would sell. However, it is a universally recognized exception that if he undertakes to do so he is bound not only to tell the truth but he is equally obligated not to suppress or conceal facts within his knowledge which materially qualify those stated. If he speaks at all, he must make a complete and fair disclosure. [Citations.]'"
 "As pointed out in Kuhn v. Gottfried, 103 Cal.App.2d 80, 81 [229 P.2d 137], any facts which affect the desirability of the property to be sold, are facts 'which materially qualify these stated.' Defendant admitted that the double lines on the plot plan could be interpreted to mean walls."
 "... 'Where material facts are accessible to the vendor only and he knows them not to be within the reach of the diligent attention and observation of the vendee, the vendor is bound to disclose such facts to the vendee.' (Rothstein v. Janss Investment Corp., 45 Cal.App.2d 64 [113 P.2d 465]; Dyke v. Zaiser, 80 Cal.App.2d 639 [182 P.2d 344].) ..."
 "... Whether the investigation made by the plaintiff was a properly full one after his discovery that the building was not Class 'C,' was an issue of fact for the trial court."
 The cases upon which the defendant relies are not in point. In the case of Ruhl v. Mott, 120 Cal. 668 [53 P. 304], the plaintiff entered upon the land, discovered the fraud, expressed dissatisfaction, and notwithstanding this knowledge, thereafter affirmed the contract by including the unpaid interest in a new note and giving the defendant a new mortgage upon the land. It was held that the second transaction was free from fraud and the plaintiff's conduct constituted a waiver of all rights of rescission. In Gratz v. Schuler, 25 Cal.App. 117 [142 P. 899], the plaintiff purchased a panorama on defendant's representations that he could earn so much a day, and notwithstanding that after the plaintiff had operated the panorama for a few days to see what it was earning and thus knew the real earning capacity of the panorama, he completed the payment of the balance of the purchase price, and he could not be heard to say that he was deceived by the representations. In Carpenter v. Hamilton, 18 Cal.App.2d 69 [62 P.2d 1397], the plaintiffs, before parting with value, inspected a portion of the premises where there were patent defects contrary to representations which had been made by the *478 defendant. The reviewing court held that knowledge of the plaintiffs of the defendant's misrepresentations relating to the portion inspected, precluded reliance by them upon misrepresentations as to the condition of the premises which they did not visit. This case has never been overruled, but its broad language has been undercut by subsequent cases, such as Sanfran Co. v. Rees Blow Pipe Mfg. Co., supra, 168 Cal.App.2d 191, 203, and Hefferan v. Freebairn, 34 Cal.2d 715, 720 [214 P.2d 386], where its holding has been held applicable only to visible defects.
 [1c] In the case before us the plaintiff was constantly reassured by the defendant, and under the circumstances he was not precluded from relying on what the defendant told him or showed him.
 The defendant questions the sufficiency of the evidence to support the finding, but we think that the evidence is ample to support such, and will not belabor the well-settled law that this court is bound thereby. (Overton v. Vita-Food Corp., 94 Cal.App.2d 367 [210 P.2d 757]; Berniker v. Berniker, 30 Cal.2d 439 [182 P.2d 557].)
 The judgment is affirmed.
 Conley, P. J., and Stone, J., concurred.


68 Cal.App.2d 192 (1945)
CITY OF LOS ANGELES, Appellant,
v.
FLORENCE E. WHITE, Respondent.
Civ. No. 14677.
California Court of Appeals. Second Dist., Div. Three.
Feb. 26, 1945.
 Ray L. Chesebro, City Attorney, Frederick von Schrader, Assistant City Attorney, and Roger Arnebergh, Deputy City Attorney, for Appellant.
 James V. Brewer for Respondent.
 FOX, J. pro tem.
 This is a quiet title action in which the city of Los Angeles sought to obtain a judgment determining the existence of an easement for street purposes over a strip of land which for many years has been used as a highway by the public. From a judgment in favor of the defendant the city has appealed.
 The defendant's property, consisting of 2 1/4 acres, was located in the city of Venice prior to that city's annexation to the city of Los Angeles in November, 1925. It was formerly a part of the Machado ranch. The vicinity is sparsely settled, open country territory. It was for the most part subdivided in the early and middle 1920's, though some of it was subdivided earlier. Up until about 1925 or 1926, the road over the property in question was just an ordinary winding country dirt road, without fixed boundaries. It was used principally by the people who lived on the adjacent ranches.
 On August 7, 1924, the city of Venice filed an action to condemn a right of way for street purposes over this strip of land. Mrs. McDevitt, the then owner, filed her answer December 29, 1924. The referee's report was filed August 18, 1925, fixing the owner's award at $3,419.52. This award, however, was never paid and the action was dismissed on August 15, 1933, upon motion of another party Notice of said motion does not appear to have been served on Mrs. McDevitt.
 In about 1926, some gravel and oil were applied to this strip and it was rolled. The strip thus improved was somewhat wider than that previously traveled. More recently, this road became a part of a regular bus route in that community. In August, 1936, Mrs. McDevitt by grant deed conveyed the *194 tract of land of which this strip is a part to George E. White. He died in March, 1941, and defendant thereupon inherited the property. There was no reservation or exception of any portion of this strip or roadway in the deed from Mrs. McDevitt to Mr. White. In June, 1942, a written request was made to the Board of Public Works on behalf of the defendant for permission to barricade said roadway and close same to traffic. This request was denied. The taxes on the said parcel of land including the strip used for a road have always been paid by the record owner of the property.
 The trial court found that the said strip of land "has been continuously traveled and used as a public street or highway by the public since 1898." It also found, however, that "neither said Florence E. White nor her predecessors ever dedicated an easement over said property for street purposes or otherwise to the plaintiff, the City of Los Angeles, or to its predecessors in interest." The court further found that "the defendant Florence E. White is the owner in fee simple of the said land ... and ... that the plaintiff has no title, right, easement or other claim thereto."
 [1a] The sole issue is whether or not plaintiff has an easement for street purposes over said property. Plaintiff contends that by reason of the long use thereof by the public there has been an implied dedication of the strip of land in question for street purposes.
 We need not pause to consider whether the evidence herein recited would have sustained a finding that there was a dedicated easement for street purposes over said property. We need only to determine the question of whether the evidence compelled such a finding and conclusion. In our opinion it did not.
 The most that can be said is that the evidence of the use made of this strip of land was proper to be considered with other evidence on the question of whether the owners intended to dedicate it to public use. (Dunn v. County of Santa Cruz (1944), 67 Cal.App.2d 400 [154 P.2d 440]; Manhattan Beach v. Cortelyou (1938), 10 Cal.2d 653, 668 [76 P.2d 483]; Lyons v. Schwartz (1940), 40 Cal.App.2d 60, 64 [104 P.2d 383]; Lantz v. City of Los Angeles (1921), 185 Cal. 262, 268 [196 P. 481]; Huffman v. Hall (1894), 102 Cal. 26 [36 P. 417].) "It is true that this intent may be inferred from long acquiescence in a use by the public" (Manhattan Beach v. *195 Cortelyou, supra), but the ultimate determination as to whether there is a dedication must "be drawn from all the circumstances of each particular case." (Quinn v. Anderson (1886), 70 Cal. 454 [11 P. 746].)
 First, the period up to 1925 should be considered. Up to that time the land in that vicinity appears to have been unenclosed and uncultivated for the most part. Under such circumstances, "the fact that the public has been in the habit of going upon the land will ordinarily be attributed to a license on the part of the owner, rather than to his intent to dedicate." (Manhattan Beach v. Cortelyou, supra, p. 668.) Furthermore, the filing of the condemnation action and the answer of Mrs. McDevitt, who then owned the property, support an inference against any intended dedication to public use up to that time.
 The improvement of the road with gravel and oil and the use thereafter by the public during the time that Mrs. McDevitt continued to own the property loses much of its significance because of the pendency of the condemnation action and the referee's award to her of $3,419.52 for the value of the land taken and damages for severance. The trial court was justified in inferring that she could have reasonably expected that the city would go through with the condemnation proceeding and that in due time she would be paid the amount of the award. Under such circumstances it would be difficult to infer an intention on her part to dedicate the strip to a public use from the fact that it was thus improved. On the contrary the trial court could have reasonably inferred that she permitted the improvements without objection (if such was the fact) because she expected to be paid for the property. In this connection it should be borne in mind that the condemnation action was not dismissed until August, 1933, and then without notice to Mrs. McDevitt. Furthermore, the fact that she did not exclude the road from the description of the property in her deed of August 11, 1936, to Mr. White, tends to support the inference that she had not dedicated it to a public use.
 From the fact that the defendant filed a request in writing in June, 1942, with the Board of Public Works, seeking permission to barricade this road and close it to traffic shows that she did not then have any intention of dedicating this strip of land to a public use. From this the court could reasonably *196 infer that she had not previously intended to so dedicate the property. (In fact, the said request to the Board of Public Works, indicates that the use of this road by the public had been orally protested by defendant nearly a year earlier.) Also, the payment of taxes on the property by the defendant and other record owners shows "conduct consistent with the ownership of the property." (Manhattan Beach v. Cortelyou, supra, p. 670.)
 [2] Finally, the burden was upon the plaintiff to prove the affirmative allegations of its complaint, and we are satisfied that the trial court was entirely justified in concluding that the plaintiff had failed to sustain the burden of proving that there had been a dedication. (See Dunn v. County of Santa Cruz, supra, 67 Cal.App.2d 400; Lyons v. Schwartz, supra, 40 Cal.App.2d 60; Niles v. City of Los Angeles (1899), 125 Cal. 572 [58 P. 190]; Demartini v. San Francisco (1895), 107 Cal. 402 [40 P. 496].) As was said in Lyons v. Schwartz, supra (p. 65): "The courts have consistently held that the intention to dedicate to the public land or a roadway must be proven clearly and unequivocally. When the dedication rests upon acts and conduct, the intent must clearly appear. (Burk v. City of Santa Cruz, 163 Cal. 807 [127 P. 154].)"
 [1b] As we view the evidence it is ample to support the trial court's finding that "neither said Florence E. White nor her predecessors ever dedicated an easement over said property for street purposes or otherwise to the plaintiff, the City of Los Angeles, or to its predecessors in interest." This finding supports the judgment for the defendant.
 The judgment is affirmed.
 Shinn, Acting P. J., and Wood (Parker), J., concurred.


707 F.2d 511
Vanellav.Allsbrook
80-8296
UNITED STATES COURT OF APPEALS Fourth Circuit
4/1/83

1
E.D.N.C.

CPC DENIED--DISMISSED


685 F.2d 445
Pendergrassv.Crist
81-3470
UNITED STATES COURT OF APPEALS Ninth Circuit
6/3/82

1
D.Mont.

REMANDED


139 F.3d 899
U.S.v.Johnston*
NO. 98-50100
United States Court of Appeals,Fifth Circuit.
March 10, 1998
Appeal From:  W.D.Tex. ,No.SA97CR3152

1
Affirmed.

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


     15-2327
     Lin v. Lynch
                                                                                BIA
                                                                               Christensen, IJ
                                                                                A87 791 509

                         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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   8th day of August, two thousand sixteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            BARRINGTON D. PARKER,
 9            RICHARD C. WESLEY,
10                 Circuit Judges.
11   _____________________________________
12
13   HONG HUI LIN,
14            Petitioner,
15
16                  v.                                               15-2327
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Troy N. Moslemi, Flushing, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Song
27                                       Park, Senior Litigation Counsel;
28                                       Kimberly A. Burdge, Trial Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DENIED.

5        Petitioner Hong Hui Lin, a native and citizen of the

6    People’s Republic of China, seeks review of a June 29, 2015,

7    decision of the BIA, affirming a January 22, 2014, decision of

8    an Immigration Judge (“IJ”) denying Lin’s application for

9    asylum, withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).       In re Hong Hui Lin, No. A87 791 509

11   (B.I.A. June 29, 2015), aff’g No. A87 791 509 (Immig. Ct. N.Y.

12   City Jan. 22, 2014).       We assume the parties’ familiarity with

13   the underlying facts and procedural history in this case.

14       Under the circumstances of this case, we review the IJ’s

15   decision as modified by the BIA.          Xue Hong Yang v. U.S. Dep’t

16   of Justice, 426 F.3d 520, 522 (2d Cir. 2005).         The applicable

17   standards   of    review     are   well    established.     8 U.S.C.

18   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

19   (2d Cir. 2008).

20       For asylum applications like Lin’s, governed by the REAL

21   ID Act, the agency may, “[c]onsidering the totality of the

                                        2
1    circumstances,”      base   a    credibility      finding    on   an   asylum

2    applicant’s     “demeanor,       candor,     or     responsiveness,”        the

3    plausibility    of   his    account,     and   inconsistencies         in   his

4    statements, “without regard to whether” they go “to the heart

5    of the applicant’s claim.”        8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

6    Xia Lin, 534 F.3d at 163-64.             “We defer . . . to an IJ’s

7    credibility determination unless, from the totality of the

8    circumstances, it is plain that no reasonable fact-finder could

9    make such an adverse credibility ruling.”                  Id. at 167.       As

10   discussed below, substantial evidence supports the agency’s

11   adverse credibility determination.

12       The   agency     reasonably     relied     on    the    inconsistencies

13   concerning the circumstances under which Lin and his first

14   witness last saw each other in China.               Lin testified that he

15   met the witness for a 2:00 pm meal, which lasted two hours.                 Lin

16   was then confronted with his plane ticket for an 8:00 flight

17   to Shanghai that same day.         After a long pause, Lin responded

18   that his flight was scheduled for 8:00 am, but that it was

19   delayed until 4:00 pm.          The witness testified, however, that

20   he met Lin at 5:00 pm when it was dark.             The agency reasonably

21   found   Lin’s   explanation       both     inconsistent      with   his     own

                                          3
1    testimony and implausible because Lin had previously testified

2    that he took the day of work and went grocery shopping on the

3    day he met the witness.     See Majidi v. Gonzales, 430 F.3d 77,

4    80 (2d Cir. 2005) (“A petitioner must do more than offer a

5    plausible explanation for his inconsistent statements to secure

6    relief; he must demonstrate that a reasonable fact-finder would

7    be compelled to credit his testimony.” (internal quotation

8    marks and emphasis omitted)).

9        The agency also reasonably rested its adverse credibility

10   determination on inconsistencies between Lin and his second

11   witness’s testimony concerning Lin’s church attendance in the

12   United States.     Xiu Xia Lin, 534 F.3d at 166-67.   Lin testified

13   that, on the day before the hearing, he attended a 10:45 am

14   church service until 12:30 pm and that he saw the witness after

15   the service.     But the witness testified that she attended a

16   12:00 pm church service, saw Lin when she first walked in, and

17   that she left in the middle of the service at 1:00 pm.

18       Lin   argues    that   the   inconsistencies   concerning   his

19   U.S.-church attendance were minor and he should have been

20   confronted with them and given an opportunity to explain.       We

21   have held that “where the perceived incongruities in an asylum

                                       4
1    applicant’s testimony are not plainly obvious, an IJ cannot rely

2    on them to support an adverse credibility ruling without first

3    identifying the alleged inconsistencies for the applicant and

4    giving the applicant an opportunity to address them.”               Ming Shi

5    Xue v. BIA, 439 F.3d 111, 121 (2d Cir. 2006).               Although Lin may

6    be correct that certain inconsistencies concerning when he and

7    the    witness   first   met   were       “not    plainly    obvious,”    the

8    inconsistences concerning the church service, which supposedly

9    occurred the day before the hearing, were: Lin and Jin testified

10   that the service was at different times and that they saw each

11   other at different places.       The agency therefore did not err

12   in relying on the inconsistences about Lin’s attendance at the

13   church service.     Ming Shi Xue, 439 F.3d at 125.

14          The agency also did not err in concluding that Lin’s

15   corroborating evidence was insufficient to rehabilitate his

16   credibility.     See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

17   Cir.    2007)    (observing    that       an     applicant’s    failure    to

18   corroborate testimony may bear on credibility, either because

19   the absence of particular evidence is viewed as suspicious, or

20   because the absence of corroboration in general makes an

21   applicant unable to rehabilitate testimony already called into

                                           5
1    question).     The agency reasonably accorded Lin’s documents

2    from China limited weight because Lin testified that his mother

3    in Fujian Province sent them but the envelope reflected that

4    the documents were sent from Shen Zhen Province by a man that

5    Lin purportedly did not know.         See Xiao Ji Chen v. U.S. Dep’t

6    of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that the

7    weight accorded to evidence lies largely within the agency’s

8    discretion).      The agency also reasonably gave diminished

9    weight to the letters from Lin’s mother, friend, and church

10   official in China because they were unsworn, were prepared for

11   the purpose of litigation, and were from interested parties not

12   subject to cross examination.     See Matter of H-L-H- & Z-Y- Z-,

13   25 I. & N. Dec. 209, 215 (B.I.A. 2010) (agency can give little

14   weight to document drafted by interested witness not subject

15   to cross examination), rev’d on other grounds by Hui Lin Huang

16   v. Holder, 677 F.3d 130 (2d Cir. 2012).

17        Given the inconsistencies and the agency’s reasonable

18   treatment of Lin’s corroborating evidence, the totality of the

19   circumstances supports the credibility ruling.            Xiu Xia Lin,

20   534 F.3d at 167.     Because Lin’s claims for relief were based

21   on   the   same   factual   predicate,    the   adverse   credibility

                                       6
1    determination is dispositive of asylum, withholding of removal,

2    and CAT relief.   Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

3    2006).

4        For the foregoing reasons, the petition for review is

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

6    that the Court previously granted in this petition is VACATED,

7    and any pending motion for a stay of removal in this petition

8    is DISMISSED as moot.    Any pending request for oral argument

9    in this petition is DENIED in accordance with Federal Rule of

10   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

11   34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk

                                     7