922 P.2d 901 (1996)
THANE NEIGHBORHOOD ASSOCIATION, Alaskans for Juneau, Appellants,
v.
CITY AND BOROUGH OF JUNEAU, Appellee, and
Echo Bay Alaska, Inc., Intervenor-Appellee.
No. S-6710.
Supreme Court of Alaska.
September 6, 1996.
*902 Eric Smith, Anchorage, for Appellants.
John R. Corso, City & Borough Attorney, Juneau, for Appellee City & Borough of Juneau.
James F. Clark, Terry L. Thurbon, Robertson, Monagle & Eastaugh, Juneau, for Intervenor-Appellee Echo Bay Alaska.
Before COMPTON, C.J., RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and CARPENETI, J., Pro Tem.[*]

OPINION
MATTHEWS, Justice.
Echo Bay Alaska, Inc., applied to the City and Borough of Juneau in November 1990 for a large mine permit for the AJ Mine. The proposed mine is located four miles from downtown Juneau. The tailings that will result from the processed ore are to be pumped into a tailings pond created by constructing a *903 dam in Sheep Creek Valley. The proposed dam will be 332 feet high and 750 feet long. If the mine goes into production 100 million tons of tailings are expected to be produced and pumped into the pond. The excess water from the tailings pond will be discharged into Gastineau Channel. The discharge from the tailings pond to the channel could be as great as 250 cubic feet per second.
The City and Borough of Juneau Planning Commission (Commission) approved the application in a notice of decision issued on May 14, 1993. The approval was subject to a set of conditions. The permit was to be issued after a financial warranty was paid and after Echo Bay agreed to the conditions and signed a mitigation agreement. Approval of the tailings dam and impoundment and the discharge of wastewater was withheld until additional information was provided.
Appellants, Thane Neighborhood Association (TNA) and Alaskans for Juneau (AFJ), appealed the Commission's decision to the City and Borough of Juneau Assembly (CBJ) on June 7, 1993. Echo Bay was granted permission to participate as a party. The CBJ heard oral argument on August 30, 1993, and issued a decision denying the appeal on September 22, 1993. TNA and AFJ then appealed to the superior court and Echo Bay was permitted to intervene. On October 26, 1994, the superior court affirmed the decision of the CBJ. In this appeal, the appellants argue that the "CBJ impermissibly used a `phased' approach in approving" the permit and that the CBJ's finding that issuance of the permit complied with standards set forth in the CBJ mining ordinance is not supported by substantial evidence. In December 1995 CBJ and Echo Bay filed a supplemental brief, and TNA and AFJ filed a response addressing the issue of whether the "Planning Commission [could] assure future compliance with the substantive standards for mining operations ... by imposing permit conditions requiring future performance rather than by demanding pre-application-approval demonstration of future ability to comply."

THE CODE
The review of large mine permits is governed by the Code of the City and Borough of Juneau (CC & BJ) 49.65 (1989). CC & BJ 49.65.110 provides in part: "It is the purpose of this article to foster the development of a safe, healthy and environmentally sound mining industry while protecting the overall interests of public health, safety and the general welfare and minimizing the environmental and surface effects of mining projects for which an exploration notice or mining permit is required."
The procedure for obtaining a large mine permit is governed by CC & BJ 49.65.130. CC & BJ 49.65.130(b) requires an application for a large mine permit to
be submitted in the form of a report containing sufficient information so that the department can, after reviewing the application, evaluate, in accordance with the standards of subsection 49.65.135(a), the impacts[[1]] described in this subsection that the mining operation may have on the city and borough. The application shall contain a map on a scale of 1:63,360 or a more detailed scale, a description of the mine site and affected surface; a description and timetable of the proposed mining operation, including all roads, buildings, processing and related facilities; a description and timetable of proposed reclamation of affected surface; a description of proposals for the sealing of open shafts, adits and tunnels upon the completion or temporary cessation of mining operations; a description of methods to be used to control, treat, transport and dispose of hazardous substances, sewage and solid waste; and a description of other potential environmental, health, safety and general welfare impacts, as well as neighboring property impacts and measures to be taken to mitigate their adverse effects. The application shall also contain additional information normally prepared by the operator for its feasibility studies and mining plans, including information establishing the right to use the affected surface, labor force characteristics *904 and timing, payroll projections, anticipated duration of the mining operation, construction schedules, infrastructure description, and other information reasonably requested by the department in the preapplication conference held pursuant to Section 49.15.330(b)....
(Emphasis added.) Likewise, CC & BJ 49.15.130(b), which governs applications for land use permits in general, provides that "[a]n application is complete when it contains all of the information necessary to determine if the development will comply with all of the requirements of the permit applied for."
CC & BJ 49.65.130(f) requires the Community Development Department (Department) to conduct an application review, which
shall include, but not be limited to, the following determinations: whether air and water quality will be maintained in accordance with federal, state, and city and borough laws, rules and regulations; where sewage, solid waste, hazardous and toxic materials will be properly contained and disposed of in accordance with federal, state, and city and borough laws, rules and regulations; the extent to which the operator will agree to mitigate adverse impacts on the city and borough; whether the mining operation will be conducted in such a way as to minimize safety hazards to the extent reasonably practicable and will mitigate adverse impacts on the public and on neighboring properties such as those from traffic overloading, noise, dust, unsightly visual aspects, surface subsidence, avalanches, landslides and erosion; and whether appropriate historic sites will be protected.[[2]]
CC & BJ 49.65.130(f) further provides:
The department shall form a recommendation as to whether the permit should be approved.... The department's recommendation may include such conditions or stipulations as the department deems to be reasonably necessary to mitigate any adverse environmental, health, safety, or general welfare impacts which may result from the proposed mining operation.... If the [planning] commission determines that the application, with stipulations or conditions[[3]] as appropriate, satisfies the standards of Sections 49.65.135 and 49.15.330, it shall approve the application....
The primary requirements for a large mine permit are contained in CC & BJ 49.65.135 (1989), which states:
STANDARDS FOR ISSUANCE OF PERMITS AND CONDUCT OF OPERATIONS. (a) In determining whether to recommend issuance of a permit, the [community development] department shall require that:
(1) The mining operations be conducted in accordance with this article, Section 49.15.330,[[4]] and any other applicable provisions of the city and borough code in such a way as to mitigate adverse environmental, health, safety and general welfare impacts;
(2) Air and water quality be maintained in accordance with federal, state, and city and borough laws, rules and regulations;
(3) Hazardous and toxic materials, sewage, and solid waste be properly contained and disposed of in accordance with applicable federal, state, and city and borough laws, rules and regulations;
(4) The operator conduct all mining operations according to the standards of the city and borough as contained in this article, Section 49.15.330, the permit, and any other applicable provisions of the city and borough code, so as to minimize to the extent reasonably practicable safety hazards and to control and mitigate adverse impacts on the public and neighboring properties, such as from traffic overloading, noise, dust, unsightly visual aspects, *905 surface subsidence, avalanches, landslides and erosion;
(5) Appropriate historic sites designated as significant by the city and borough be protected;
(6) Reclamation of the affected surface be in accordance with the approved reclamation plan of the operator; and
(7) With respect to a large mine permit application, the operator negotiate and enter into a mitigation agreement with the city and borough....
....
(b) Reclamation of all affected surfaces shall be completed as soon as is reasonable after affected surface areas are no longer being used in exploration and mining operations. Reclamation shall include the following: cleanup and disposal of dangerous, hazardous or toxic materials; regrading of steep slopes of unconsolidated material to create a stable slope; backfilling underground shafts and tunnels to the extent appropriate; adequate pillaring or other support to prevent subsidence or sloughing; plugging, or sealing of abandoned shafts, tunnels, adits or other openings; adequate steps to control or avoid soil erosion or wind erosion; control of water runoff; revegetation of tailings and affected surface areas with plant materials that are capable of self-regeneration without continued dependence on irrigation and equipment where appropriate; rehabilitation of fisheries and wildlife habitat; and any other conditions imposed by the commission. Subsequent to the issuance of a permit or the grant of authority under an exploration notice, the operator's compliance shall be measured against the requirements contained in that permit or the conditions of the exploration notice and the operator's plans submitted with the permit application or the notice.

THE LARGE MINE PERMIT
After making its determination, the Commission issued a notice of decision, granting approval for the application for a large mine permit subject to a set of conditions. The notice of decision lists the six requirements that are applicable to all conditional use permits as set forth at CC & BJ 49.15.330 and the twenty-one requirements set forth in the mining ordinance (CC & BJ 49.65.100-195), and states its findings for each of these requirements.
TNA and AFJ argue that the findings and conditions in the notice of decision evidence a lack of compliance with the code. They argue that the CBJ used a "`phased' approach in approving the large mine permit." They point to three ways in which they believe the CBJ engaged in phasing. First, the Commission withheld approval of the dam, the tailings pond and marine water discharges until further information was provided, yet granted the permit for the remainder of the project. Second, the Commission approved the permit, yet required Echo Bay to provide further information on certain matters. Third, the Commission imposed as a condition that Echo Bay obtain necessary permits from other agencies.
Echo Bay and CBJ argue that this phasing is consistent with the code. CBJ argues "[t]he purpose of the mining ordinance and the Commission is to grant permits, not to deny them." CBJ and Echo Bay argue that "the CBJ mining ordinance does not vest the commission with discretion to disapprove a large mine permit application when the standards for permit issuance have been met," relying on CC & BJ 49.65.130(f), which states that "if the commission determines that the application, with stipulations or conditions as appropriate, satisfies the standards of Sections 49.65.135 and 49.15.330, it shall approve the application." (Emphasis added.)
CBJ and Echo Bay also contend that the mining ordinance can be satisfied by including permit conditions which incorporate the requirements of the ordinance  it is not necessary to determine in advance whether the plans submitted in the permit application will satisfy those requirements. CBJ argues that the purpose of the ordinance "is to mandate compliance not predict it."

DISCUSSION
This court must determine to what extent the City and Borough of Juneau's code allows phasing when evaluating large mine permit applications. This is a question *906 of statutory interpretation which does not involve agency expertise. Thus, this court will use its independent judgment. See Marlow v. Municipality of Anchorage, 889 P.2d 599, 602 n. 1 (Alaska 1995) (reviewing zoning commission's and board's constructions of zoning ordinance under independent judgment standard, as issues presented were "pure questions of statutory construction which d[id] not involve agency expertise").

A. Did the Commission Err by Granting a Large Mine Permit Which Excluded the Tailings Dam and Impoundment and Wastewater Discharge?

In this case, CC & BJ 49.65.135(a)(2) requires that "water quality be maintained in accordance with federal, state, and city and borough laws, rules and regulations." In its findings concerning the AJ Mine, the Commission stated that it could not "conclusively determine at this time with current information that the proposed treatment system will maintain water quality in accordance with federal, state and local laws, rules and regulations." The Commission further found that "[t]he available data shows that the federal limit for total suspended solids (TSS) will not be met by the marine water discharge." CC & BJ 49.65.135(a)(4) provides that a mine operator must "conduct all mining operations ... so as to minimize to the extent reasonably practicable safety hazards." The staff had various concerns about the safety of the AJ Mine's proposed tailings dam.
The Commission responded to these problems by withholding approval of the tailings dam and impoundment and the marine wastewater discharge components of the project. The Commission decided that it would determine whether to approve the tailings dam and impoundment and the marine wastewater discharge after the receipt of further information.
While the Juneau code does have provisions allowing the Commission to put conditions on a permit, see CC & BJ 49.15.330(g), 49.65.130(f), there is nothing in the code to support granting the permit for a project as a whole, while excepting one part of a project. Past decisions of this court make clear that phasing a project by permitting it in stages is disfavored.
Three of our recent cases provide considerable guidance as to what sorts of permit approval "phasing" techniques are appropriate and what kinds are not: Trustees for Alaska v. Gorsuch, 835 P.2d 1239 (Alaska 1992); Trustees for Alaska v. State, Department of Natural Resources, 851 P.2d 1340 (Alaska 1993); and Kuitsarak Corp. v. Swope, 870 P.2d 387 (Alaska 1994). In Gorsuch, we held that in granting mining permits, "[Department of Natural Resources (DNR)] may not ignore cumulative effects of mining and related support facilities ... by permitting facilities separately." 835 P.2d at 1246. We ruled that when DNR reviews a mining permit application, it must "consider the probable cumulative impact of all anticipated activities which will be a part of a `surface coal mining operation,' whether or not the activities are part of the permit under review." Id. "If DNR determines that the cumulative impact is problematic," we stated, "the problems must be resolved before the initial permit is approved." Id.
We explained that "[t]his type of `concept approval' is necessary to avoid a situation where, because of industry investment and reliance upon a past mining permit approval, DNR might feel compelled to approve a subsequent permit for a related but environmentally unsound facility." Id. at 1246 n. 6. We added that "[i]n some cases, this may require concurrent, as opposed to serial, review of separate, related permit applications," while "[i]n other cases, anticipated problems resulting from cumulative impacts may require that approval of an initial permit be conditioned upon satisfactory resolution of the problems anticipated in subsequent permits." Id.
This court split in Gorsuch on whether an access/haul road for the mining operation could be permitted under a separate mining permit. The majority determined that a specific regulation implied that separate permitting was allowed and that cumulative impacts could be adequately considered under separate permitting in that instance. Id. at 1245-46. Justice Rabinowitz, joined by Justice Matthews, dissented, arguing that the applicable *907 regulations prohibited separate permitting, and that a single permit was necessary to ensure that the cumulative effects of the mining operation would be adequately considered. Id. at 1250-51.
Justice Rabinowitz contended that "[c]ourts have disallowed segmentation of a proposed project ... to assure that the cumulative effects of the project are adequately considered...." Id. at 1251. Justice Rabinowitz cited Thomas v. Peterson, 753 F.2d 754, 760 (9th Cir.1985), for the proposition that "allowing consideration of cumulative impacts after a portion of [a] project is already approved" swings the balance in favor of project approval even if the project would have been disapproved had all components of the project been considered in the initial permit application. Gorsuch, 835 P.2d at 1251.
In Trustees for Alaska v. State, Department of Natural Resources, 851 P.2d 1340, 1341 (Alaska 1993) (Camden Bay II), DNR's approval of a sale of oil and gas leases was challenged. A regulation required DNR to identify known geophysical hazard areas, and prohibited approval of development in such areas until measures to minimize geophysical hazards were provided. Id. at 1343. DNR identified the entire sale area as a geophysical hazard area. Id. DNR intended to consider particular geophysical hazards on a lease-site-by-lease-site basis, requiring lessees to submit plans to mitigate potential geophysical hazards before approval to develop a specific lease site would be given. Id. at 1343-44 & n. 7.
We disapproved DNR's approach. We held that DNR was required to identify known or substantially possible hazard areas before approving the lease sale as a whole. Id. at 1344-45. We explained that "deferring a careful and detailed look at particularized geophysical hazards to later stages of the development process ... entails certain practical risks." Id. at 1344. Such deferral "may tend to mask appreciation of any cumulative environmental threat that would otherwise be apparent if DNR began with a detailed and comprehensive identification of [the] hazards." Id. We again noted that "the more segmented an assessment of environmental hazards [is], the greater the risk that prior permits will compel DNR to approve later, environmentally unsound permits." Id.
Another regulation at issue in Camden Bay II required DNR to identify important historic sites. Id. at 1345. DNR purportedly attempted to comply with this regulation by requiring the lessees to report on such sites and to try to preserve such sites, arguing that the regulation did not state when historic sites had to be identified. Id. at 1345 & n. 9. We held that DNR had not complied with the regulation, and that DNR was required to identify known historic sites before approving the initial sale. Id. at 1346. We explained that evaluation of historic sites on a lease-site-by-lease-site basis ran "the risk of undervaluing the cumulative cultural significance of the region as a whole," and that the lessees would have an incentive to underreport historic sites. Id. We added that our holding that the regulation at issue required identification of historic sites before approval of the initial sale did "not mean that more intensive duties are not required by this regulation at later stages of development." Id.
We also ruled in Camden Bay II, however, that DNR did not have to examine transportation routes and utility sites before approving the initial sale because "[u]ntil exploration is proposed and, in all likelihood, until and unless a commercially exploitable discovery is made, there will be no occasion for siting, designing or constructing transportation and utility routes." Id. We further decided that DNR was not required "to evaluate the effectiveness of [environmental harm mitigation] measures before even receiving detailed development proposals," since DNR would not be able to assess "detailed mitigation measures even before knowing which activities it needs to mitigate." Id. at 1347.
In Kuitsarak Corp. v. Swope, 870 P.2d 387 (Alaska 1994), DNR approved offshore prospecting permits in a region without conducting an in-depth analysis of the effects of mining in the region. Id. at 391 n. 13, 394 & n. 21. DNR contended that it lacked sufficient information to conduct such an analysis and that it would be easier to do the analysis *908 when specific mining activities were performed. Id. at 391 n. 13, 394 n. 21. We rejected this procedure. We found that DNR had not adequately considered the potential and cumulative impacts of mining in the region. Id. at 395-96.
We noted that DNR's argument that it was difficult to obtain the information necessary to perform a proper evaluation of the impacts of mining in the region was undermined by evidence of federal studies similar to the studies which DNR needed to do. Id. at 396. We stated that "[o]nce the initial impact of mining on the region has been assessed, any unforeseen occurrences or conditions that are revealed during exploration can be dealt with by DNR through use of stipulations and conditions imposed on mining." Id. (emphasis added). We disapproved of DNR's use of conditions to require the development of plans to minimize potential dangers as a substitute for a complete analysis of the potential dangers. See id. at 396 n. 27.
We can draw three general, guiding principles concerning when and in what manner "phasing" or "segmentation" is permissible from Gorsuch, Camden Bay II, and Kuitsarak. First, unless a specific statute or regulation allows phasing, phasing is disfavored. Compare Gorsuch, 835 P.2d at 1245-46 (regulation interpreted as permitting phasing) with Gorsuch, 835 P.2d at 1250-51 (Rabinowitz, J., dissenting) (regulation interpreted as prohibiting phasing). Where a statute is silent or ambiguous, phasing should generally not be allowed. See Camden Bay II, 851 P.2d at 1345-46 (regulation silent on when historic sites must be identified, but best interpreted as requiring identification of known sites at initial permitting stage).
Second, phasing is prohibited if it can result in disregard of the cumulative potential environmental impacts of a project. See Kuitsarak, 870 P.2d at 396 n. 30; Camden Bay II, 851 P.2d at 1344, 1346; Gorsuch, 835 P.2d at 1246. The more interlinked the components of a project are and the greater the danger that phasing will lead to insufficient consideration of cumulative impacts, the greater the need to bar phasing. Compare Gorsuch, 835 P.2d at 1245-46 (separate permitting permissible so long as DNR determines that cumulative impacts will not be problematic) with Gorsuch, 835 P.2d at 1250-51 (Rabinowitz, J., dissenting) (unified permitting process necessary to ensure adequate consideration of cumulative effects).
Third, conditions and stipulations may be used to address unforeseen occurrences or unforeseen situations that may arise during exploration or development, but permit conditions may not serve as a substitute for an initial pre-permitting analysis that can be conducted with reasonably obtainable information. See Kuitsarak, 870 P.2d at 395-96 & n. 27 (approving possible use of conditions to deal with unforeseen events but disapproving use of conditions as substitute for feasible, complete analysis).
Thus, phasing through the use of conditions is prohibited where it is feasible to obtain the information necessary to determine whether environmental standards will be satisfied before granting an initial permit, but allowed where it is impractical or impossible to create detailed development plans without conducting additional physical exploration. See Camden Bay II, 851 P.2d at 1343-47 (geophysical hazards and historic sites can be investigated during initial permitting stage but transportation routes and mitigation measures cannot be analyzed without further exploration and planning).
Based on these principles the Commission should not have granted the AJ Mine permit while excepting major portions of the project. The tailings dam and impoundment and the marine wastewater discharge system are integral components of the mining project; they are significantly interlinked to other parts of the project. If extensive redesigns to these components become necessary, the mining project could have a significantly greater environmental impact. Phasing the approval of those components could therefore cause the cumulative impacts of the mining project to be inadequately considered.
After the Commission granted Echo Bay the large mine permit for the project as a whole, the United States Environmental Protection Agency (EPA) disapproved the proposal *909 for the dam at Sheep Creek, and Echo Bay abandoned the plan to build the dam there. The EPA's action will undoubtedly force major redesigns in the mine project. This sequence of events illustrates the dangers of CBJ's improper use of phasing  the initial approval for most components of the AJ Mine may cause CBJ to fail to take into account the cumulative impacts of the redesigns made necessary by the change in the location of the tailings dam.
For these reasons we conclude that the Commission erred in granting permit approval of the project while deferring consideration of important portions of the project.

B. Did the Commission Err by Granting the Permit, Yet Imposing as a Condition that Echo Bay Provide Further Information?

As noted, the Commission found that it could "not conclusively determine at this time with current information that the proposed treatment system will maintain water quality in accordance with federal, state and local laws, rules and regulations." In addition, the Commission found that "[t]he available data shows that the federal limit for total suspended solids (TSS) will not be met by the marine water discharge." In addition to withholding approval of a portion of the project, the second way the Commission responded to this problem was to place conditions into the permit requiring the project "to comply with federal and state water quality standards." The Commission should not have granted the AJ mine permit without knowing whether the plan that was submitted to it would satisfy water quality standards.
The ordinance requires that an application contain enough information for the Department and the Commission to make determinations as to impacts and compliance. First, CC & BJ 49.65.130(f) requires the Department to conduct an application review, form a recommendation and provide the recommendation to the Commission. CC & BJ 49.65.130(b) provides that the application must contain "sufficient information so that the Department can, after reviewing the application, evaluate, in accordance with the standards of subsection 49.65.135(a), the impacts described in this subsection that the mining operation may have on the city and borough." That subsection includes "a description of other potential environmental, health, safety and general welfare impacts." Subsection 49.65.135(a)(2) provides that "[a]ir and water quality be maintained in accordance with federal, state, and city and borough laws, rules and regulations." Second, after the Department provides the recommendation, the Commission must determine whether the "application, with stipulations or conditions as appropriate satisfies the standards of Sections 49.65.135 and 49.15.330." CC & BJ 49.65.130(f). CC & BJ 49.65.330(e)(1)(B) in turn provides that the Commission shall determine whether the application is complete. CC & BJ 49.15.130(b) provides that "[a]n application is complete when it contains all of the information necessary to determine if the development will comply with all of the requirements of the permit applied for." Thus the ordinance requires that (1) the application contain sufficient information for the Department to determine the environmental impacts of the mining operation; and (2) the Commission determine whether the application contains the information necessary to determine whether it will comply with water quality rules and regulations. The Commission's statement that it did not have enough information to determine whether the system would adhere to water quality standards makes it clear that the application failed to meet either of these requirements. Without this information, the Department lacked sufficient information to determine the environmental impacts of the project. In addition, without this information the Commission could not have determined that the application was complete.
This interpretation of the code is further supported by Kuitsarak, 870 P.2d at 394-96. In Kuitsarak, DNR did not gather necessary information regarding environmental impacts before granting an offshore prospecting permit. Id. Similarly, in this case, further information on water quality was necessary before the Commission could grant the mining *910 permit, or even consider the application complete.[5]

CONCLUSION
The Juneau Planning Commission engaged in impermissible phasing in its approval of the AJ Mine permit. The Commission deferred approval of components of the mine which are interlinked with other components, creating an unacceptable danger that cumulative impacts would not be sufficiently analyzed. The Commission utilized conditions as a substitute for evaluations that could have been conducted with feasibly obtainable information.
The Commission reacted by placing conditions on the permits and deferring approval of mine components when it was faced with data that the proposed mine projects would not comply with Juneau code requirements or when it did not have sufficient information to determine whether the requirements would be met. If allowed to use such phasing in response to defects in mining applications, the Commission could grant approval to any permit application no matter how deficient it is, making the Juneau code virtually meaningless and Commission decisions effectively unreviewable.
For these reasons, we REVERSE the decision of the superior court and REMAND this case to the court with directions to vacate the decisions of the Juneau Assembly and of the Commission granting the mine permits, and to REMAND to the Commission for further proceedings in accordance with this opinion.[6]
NOTES
[*]  Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.
[1]  CC & BJ 49.80.120 defines "impact" as used in CC & BJ 49.65 as "the reasonably foreseeable effects or consequences of a mining operation."
[2]  These required determinations track the "standards for issuance of permits and conduct of operations" put forth in CC & BJ 49.65.135.
[3]  CC & BJ 49.15.330(g) allows the Commission to place seventeen kinds of enumerated conditions, as well as "other conditions as may be reasonably necessary," on a conditional use permit.
[4]  CC & BJ 49.15.330 contains the general standards for obtaining a conditional use permit in Juneau.
[5]  AFJ and TNA argue that "an applicant simply cannot demonstrate compliance with all applicable requirements unless it first has obtained the necessary permits from other agencies." The code does not necessarily require this level of demonstration of compliance, but at the very least, the application must contain the "information necessary to determine" whether the project will comply. CC & BJ 49.15.130(b).
[6]  The issues regarding the existence or lack of substantial evidence to support various CBJ findings are mooted by our decision.


                                                                                F I L E D
                                                                           United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                NOV 30 2000
                                    TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,                                 No.99-1238
 v.                                                     (D.C. No. CR-98-336-WM)
                                                              (D. Colorado)
 JAMES D. CASTLEBERRY,

           Defendant-Appellant.

                                 ORDER AND JUDGMENT*

Before EBEL, HOLLOWAY and MURPHY, Circuit Judges.

       In this direct criminal appeal, we are called upon to examine a procedure under the

Sentencing Guidelines in effect before amendment in 1995. We also are presented with a

challenge to the restitution ordered by the district court. Our jurisdiction is conferred by 28

U.S.C. § 1291 and 18 U.S.C. § 3742.

                                               I

       Defendant/appellant James D. Castleberry was indicted on eight counts arising out of

an allegedly fraudulent scheme involving the acquisition of a franchise of a business known

       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
as Mailboxes, Etc. The scheme allegedly was carried out in 1995 and 1996. Mr. Castleberry

entered into a plea agreement under which he pleaded guilty to two of the eight counts, wire

fraud in violation of 18 U.S.C. §§ 2 & 1343, and bank fraud in violation of 18 U.S.C. §§ 2

& 1344.

        Mr. Castleberry previously had been convicted of mail fraud and embezzlement in the

United States District Court for the District of Minnesota. In sentencing Mr. Castleberry for

those crimes, the federal court in Minnesota determined that the guidelines sentencing range

was twenty-four to thirty months. The district judge departed upwards from the guidelines

range, however, and sentenced Castleberry to sixty months. That judgment was entered in

1997.

        In the instant case, the district court determined the guidelines sentencing range to be

fifteen to twenty-one months. III R. 58. The district court then faced the rather difficult

problem of applying U.S.S.G. § 5G1.3, which we discuss in Part II below, to determine what

part, if any, of the sentence should run consecutively to the Minnesota sentence and what

part, if any, should run concurrently with that previous sentence. For now, we will simply

note that the judge decided on a sentence of twenty-one months on each count, to run

concurrently with each other. The judge originally ordered six months of that sentence to

be served consecutively with the prior sentence, but he later amended his ruling and imposed

the sentence so that only three months is to be served consecutively. The judge also ordered

defendant to pay restitution in the amount of $126,658.26. Mr. Castleberry now appeals the

                                              -2-
decision that he serve three months of his sentence consecutively and the order of restitution.

                                               II

       Mr. Castleberry’s first challenge is to the district court’s application of U.S.S.G. §

5G1.3, which resulted in the decision that Castleberry would have to serve three months of

his sentence in the instant case consecutively to the Minnesota sentence. Castleberry

contends that the entire sentence should have been made to run concurrently with the

Minnesota sentence. The parties agreed below, and continue to maintain on appeal, that this

case must be governed by the 1994 version of the guidelines, and all references hereinafter

are to that version.

       In addressing this area before, we have observed that

       [i]n general, a district court has broad discretion in choosing to sentence a
       defendant to a consecutive or concurrent sentence. See 18 U.S.C. §§ 3553(a),
       3584(a), (b). The court’s discretion is confined, however, by § 5G1.3 of the
       Guidelines when it seeks to impose a consecutive or concurrent sentence upon
       a defendant subject to an undischarged term of imprisonment.

United States v. Johnson, 40 F.3d 1079, 1082 (10th Cir. 1994). Because this is an area of

trial court discretion, our review is for abuse of discretion, provided that the sentencing court

recognized the limits on its discretion set by the guidelines. See United States v. Burt, 134

F.3d 997, 1000 (10th Cir. 1998).

       The parties agree that the applicable guideline provision is section 5G1.3, subsection

(c). That subsection, which is identified as a Policy Statement, provides in pertinent part:

“[T]he sentence for the instant offense shall be imposed to run consecutively to the prior

                                               -3-
undischarged term of imprisonment to the extent necessary to achieve a reasonable

incremental punishment for the instant offense.” (Emphasis added.) The highlighted term,

“reasonable incremental punishment,” seems to be the touchstone for this narrow area of

sentencing issues. And the guidelines created a procedure for determining the “reasonable

incremental punishment.”

       It must first be noted, however, that this procedure is not required in all cases.

Instead, the application note states: “To the extent practicable, the court should consider” the

product of the procedure to be “a reasonable incremental penalty.” U.S. Sentencing

Guidelines Manual § 5G1.3, cmt. n.3 (amended 1995) (emphasis added). The procedure is

first to calculate a hypothetical sentence based on what would have happened had the two

proceedings been instead a single one. The court then is to calculate a hypothetical sentence

that would have been imposed “had all the offenses been federal offenses for which

sentences were being imposed at the same time.” Id. Defendant asserts that under this

procedure, the hypothetical sentence would have been a guidelines range of twenty-seven to

thirty-three months. The government does not dispute this assertion, which is said to be

consistent with a calculation actually made by the probation department.

       The next step is to compare the hypothetical sentence with the actual previous

sentence. As the illustrations to the application note demonstrate, this comparison will often

define a range within which the second sentence should fall. In this case, the hypothetical

sentencing range, as we have noted, apparently was calculated to be twenty-seven to thirty-

                                              -4-
three months.1 The sentencing range for the previous convictions was twenty-four to thirty

months. Comparing these ranges, the district court could have concluded that three months

was a reasonable incremental punishment. Indeed, it appears that this was the reasoning

employed by the district judge in this case. See III R. 64-65. Although the district judge did

not explain his reasoning in sufficient detail for us to follow it step by step, he did cite the

appropriate guideline, referred specifically to the Minnesota sentence and the upward

departure included therein, and noted that the departure by the previous sentencing court left

it “anything but clear” how to apply section 5G1.3(c) and application note 3. III R. at 65.

Significantly, the judge also said that he had “strong feelings about the need of punishment.”

Id. at 64.

       Defendant’s argument seems to be that a concurrent sentence was required in this case

as a matter of law because the hypothetical maximum sentence of thirty-three months was

less than the time left to be served on his previous sentence of sixty months. We disagree.

Instead, had the district judge in the instant case adopted the defendant’s suggested approach,

the result would have been to fail to impose any reasonable incremental punishment for the

instant offense. This approach would have the effect of giving the defendant “license” to

commit fraud.

       To explain how defendant’s approach would amount to license to commit fraud, we

       1
        The reader is reminded that the hypothetical sentencing range is calculated based
on the presumption or fiction that the two sentencing proceedings were combined into
one, which was under the federal guidelines.

                                              -5-
refer to our unpublished decision in United States v. Christopher, 216 F.3d 1088 (table),

2000 WL 702397 (10th Cir. 2000). The parties have not referred us to any published

decisions of our court, or of any court, applying section 5G1.3(c) in a situation like this in

which the previous sentence included an upward departure from the guidelines range. Our

unpublished opinions are not binding precedent, of course, but we find the analysis in

Christopher persuasive. See 10th Cir. R. 36.3. Moreover, the circumstances of that case are

closely analogous to those of the instant case. We therefore feel it appropriate to cite and rely

on our unpublished Christopher opinion under our Rule.

       In Christopher, the defendant had first been convicted of wire fraud in federal court

in Rhode Island. The Rhode Island federal court had sentenced the defendant there to 121

months’ imprisonment, a sentence which included a 75 month upward departure. After his

conviction for a similar scheme in the District of Colorado, the district court followed the

procedure of section 5G1.3(c) and calculated a hypothetical sentence range, one that included

the fraudulent schemes in both Rhode Island and Colorado, of 63 to 78 months. The court

determined that the sentencing range in the Rhode Island case, before the departure, was 46

to 57 months. The federal district judge in Colorado then subtracted the bottom numbers

from these two ranges and arrived at seventeen months, which the judge concluded

represented a reasonable incremental punishment. He therefore sentenced the defendant to

a total of 46 months, with seventeen months to be served consecutively.

       In reaching this conclusion, the district judge in Christopher made some pertinent

                                               -6-
observations about the impact of the prior court’s upward departure on the sentencing

calculus for subsequent convictions. As reflected in the order of our court approving the

rationale of the trial court in Christopher, the district judge reasoned that an unintended and

undesirable result would be obtained if it, as the second sentencing court, included the

upward departure by the first sentencing court in its analysis under section 5G1.3(c). If the

upward departure were considered, the sentence for the first fraud would be much greater

than the hypothetical sentence for both frauds calculated under note 3. The result would be

that the first court’s upward departure “would have the effect of shielding Mr. Christopher

from punishment for his Colorado offenses. Indeed, any court’s decision to upwardly depart

would substantially insulate a defendant from punishment on future similar offenses.” 2000

WL 702397 at *2, n.2.

       We are persuaded by the analysis of Christopher, approving the reasoning of the

district court in that case. As in that case, the district judge here clearly believed that some

consecutive time was necessary to achieve a reasonable incremental punishment for the

instant offense. We see no abuse of discretion in the instant case. We have considered Mr.

Castleberry’s argument that the sentence imposed upon him amounted to an upward

departure in violation of the government’s agreement not to seek such a departure. This

argument is unfounded; there is no upward departure here.

                                              III

       As for the restitution order, Mr. Castleberry makes the unsupported assertion in his

                                              -7-
brief (actually only in a heading in the brief) that the district court erred in calculating the

amount of loss. We will not consider this argument because counsel has failed to even

explain the assertion, much less to support it with references to the record which would

enable us to review the sentencing court’s calculations.

         Castleberry also contends that the district judge failed to take into account his limited

ability to pay restitution. We review underlying findings of fact for clear error and the

amount of the restitution for abuse of discretion. United States v. Olson, 104 F.3d 1234,

1237 (10th Cir. 1997).2 The sentencing court is not required to make specific findings

regarding the defendant’s ability to pay “so long as sufficient evidence was available to and

considered by the sentencing court.” United States v. Wiktor, 146 F.3d 815, 819 (10th Cir.

1998).       We conclude that, as in Wiktor, the presentence report contained sufficient

information, which the district judge clearly considered in reaching his decision to require

restitution and in finding, on the other hand, that the defendant did not have ability to pay a

fine in addition to restitution. See id.

         The court ordered the $126,658.26 of restitution to be paid in monthly installments

of at least $50.00. Obviously, if defendant were to pay only the minimum amount, he could

not possibly make full restitution in his lifetime. But the presentence report reviewed

        In the instant case, the probation office recommended that the court apply the
         2

Victim and Witness Protection Act, rather than the Mandatory Victims Restitution Act of
1996 because the offense was committed before April 24, 1996, and the court apparently
did so. Neither party has objected to this, and we likewise apply the earlier statutory
provisions. See United States v. Olson, 104 F.3d at 1237 & n.2.

                                                -8-
defendant’s educational level and employment history and concluded that he had the capacity

to earn a substantial amount of money in the future. In light of this, and the defendant’s

failure to show specifically why the district court should not have relied on this statement,3

we see no abuse of discretion in the order for restitution.

                                        Conclusion

       The defendant’s sentence is AFFIRMED.

                                                   Entered for the court

                                                   William J. Holloway, Jr.
                                                   Circuit Judge

       See United States v. Copus, 110 F.3d 1529, 1537 (10th Cir. 1997) (burden on
       3

defendant to show inability to pay the full restitution).

                                             -9-


6 F.Supp.2d 1281 (1998)
Susan K. EWING, Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, State Farm Life Insurance Company, and State Farm Fire and Casualty Company, Defendants.
No. CIV 97-00371 PK/LFG.
United States District Court, D. New Mexico.
April 24, 1998.
*1282 *1283 Susan K. Ewing, Farmington, NM, pro se.
Virginia Anderman, Alan K. Konrad, Ruth M. Fuess, Miller, Stratvert & Torgerson, P.A., Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER
PAUL KELLY, Jr., Circuit Judge, Sitting by Designation.
THIS MATTER comes on for consideration of Defendants' Motion for Summary *1284 Judgment filed December 18, 1997 (doc. 39), Defendants' Motion to Strike filed March 9, 1998 (doc. 62), Defendants' Unopposed Motion for Extension of Time to File Reply Brief in Support of Defendants' Motion to Strike filed April 23, 1998 (doc. 72), Defendants' Second Motion to Strike filed April 23, 1998 (doc. 70), and Defendants' request for attorney's fees, (doc. 10). The court, being fully advised in the premises, finds that the summary judgment motion is well taken and should be granted.
The motion to strike is not well taken and should be denied given the court's obligation to liberally construe pro se pleadings, including those on summary judgment, see Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3 (10th Cir.1991); Jaxon v. Circle K Corp., 773 F.2d 1138, 1139-40 (10th Cir.1985) (considering whether materials could be put in proper form), and the court's ability to determine what can be considered on summary judgment, see Fed.R.Civ.P. 56(e); Celotex v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court is not persuaded of the Defendants' need for additional time to reply to the Plaintiff's response (reply) (doc. 69) to their motion to strike. As for the second motion to strike, the court will deny it on the same grounds it denied the first motion to strike. Moreover, in light of the disposition of the summary judgment motion, even after considering the materials advanced by the Plaintiff, the motions to strike may be moot. See Macklanburg-Duncan Co. v. Aetna Cas. & Sur. Co., 71 F.3d 1526, 1537 n. 10 (10th Cir.1995); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1548 (10th Cir.1995). Regardless, in resolving the summary judgment motion, the court has considered the materials submitted by the Plaintiff in the pleading entitled "Reply (Supplementary) in Opposition to Defendants' Motion to Strike"[1] filed April 8, 1998 (doc. 69).
The court declines to award Defendants attorney's fees as prevailing parties. See 42 U.S.C. § 2000e-5(k); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) (suit must be brought in bad faith or be "frivolous, unreasonable, or without foundation"); EEOC v. St. Louis-San Francisco Ry., 743 F.2d 739, 744 (10th Cir.1984). Although the Plaintiff has failed to make a prima facie case under Title VII and the action will be dismissed prior to trial, the court cannot say that the case is "patently devoid of merit," particularly considering the limitations questions. See Walker v. NationsBank of Florida, N.A., 53 F.3d 1548, 1558-59 (11th Cir. 1995) (internal quotation omitted).

Background
Plaintiff contends that Defendants discriminated against her because of her gender in not appointing her a State Farm agent to succeed her father, Stan Ewing, who was a State Farm agent from the mid-1950s until his death on November 22, 1995. Plaintiff relies on the following theories: count I, employment discrimination, 42 U.S.C. § 2000e-2(a); count II, breach of contract and bad faith; count III, intentional infliction of emotional distress; and count IV, prima facie tort.
Plaintiff worked for her father for many years, and her father made numerous requests that she be appointed an agent and ultimately succeed him. State Farm agents are independent contractors. For agency openings before September 1995, potential agents were selected from "agency pools" of prospective candidates by the Sunland Regional Office (New Mexico, Arizona and Texas) and the Agency Manager.[2] The agency pools came from referrals from State Farm agents and others; State Farm did not advertise or use employment agencies. The *1285 successful candidate became a "trainee agent" and, upon successful completion of the training program, an independent agent.
State Farm looked favorably upon qualified relatives of State Farm agents becoming agents themselves, with a possible assignment of business from the established agent. However, the policy also provided "that relatives of our established agents  like all agency candidates  meet the selection and training standards established for all new State Farm agents." Plaintiff's Response filed February 13, 1998, ex. A (doc. 57). The policy further provided that any such arrangements were "subject to prior regional management approval." Id.
In 1994, State Farm announced a program called Agency 2000 that involved restructuring and elimination of several management positions, as well as a revision of its selection process for its independent contractor agents. One highly significant change in the selection process for agents was the requirement, for agency openings that occurred in September 1995 and thereafter, that a prospective candidate be employed by State Farm full time for three continuous years. See Brief in Support of Defendants' Motion for Summary Judgment filed December 18, 1997 at 10 (doc. 40) (undisputed fact nos. 7 & 8, citing Johnson aff. filed December 18, 1997; at 6-7, ¶¶ 14-16 (doc. 42)); see also Johnson aff. filed December 18, 1997; at 2 (doc. 42), ¶ 4; Mayfield aff. filed December 18, 1997 at 6, ¶ 15; at 10 ¶ 21 (doc. 43); Morris aff. filed December 18, 1997 at 3, ¶ 6 (doc. 45); Reply (Supplementary) in Opposition to Defendants' Motion to Strike filed April 8, 1998, exh. P-29 (doc. 69). Although Plaintiff claimed in her complaint (doc. 1 at 5, ¶ 25), and asserted in her reply brief that Agency 2000 requirements were not announced until January 1995 to take effect on January 1996, the deposition passage she cites in no way supports this, see Plaintiff's Response filed February 13, 1998 at 6 (doc. 57), and the summary judgment evidence uniformly indicates that the new process applied to agency openings in the Sunland Region that occurred in September 1995 and thereafter.
As early as July 1993, Plaintiff's father, Mr. Ewing, indicated by letter that he wanted to retire by December 31, 1995, and assign his State Farm policies to Plaintiff.[3] Mr. Ewing maintained that in 1983 a former agency manager had promised Plaintiff an agency appointment. In February 1994, State Farm management personnel met with Mr. Ewing and discussed the last pre-Agency-2000 pool that was forming for trainee agents and the steps that Plaintiff would need to take to join it. See Morris aff. filed December 18, 1997 at 3-4, ¶ 6 (doc. 45). State Farm contends it told Mr. Ewing that the pool was for the entire Sunland Region and that Mr. Ewing rejected it for Plaintiff unless she was guaranteed an agency in Farmington and assignment of his policies. Id. at 3-4, ¶¶ 6-7 (doc. 45). On the other hand, Plaintiff maintains that both she and her father were told that the last pool was only for one retiring agent in Phoenix, Arizona, not the entire Sunland Region. See Reply (Supplementary) in Opposition to Defendants' Motion to Strike filed April 8, 1998 at "Application History of Plaintiff" ¶ 13 (doc. 69); id. at exh. P-23. She points to State Farm records indicating that from January-December 1994, thirty-two referrals were made by State Farm agents or agency directors, and twenty-four of those were hired in relative pools. Id. at exh. P-30. For purposes of summary judgment, the court will assume that State Farm did indeed hire relatives in 1994 and that Plaintiff and her father were not informed of the agency pool for the entire Sunland Region. As will be apparent below, this fact makes little difference because it is unanimous on this record that Plaintiff wanted only to succeed her father as an agent in Farmington and be assigned his policies.
In September 1994, State Farm's agency vice-president at its Illinois headquarters responded by letter that State Farm had offered Plaintiff an opportunity to become an agent in Yuma, Arizona, in 1991[4] and that *1286 Mr. Ewing would need to check with the Sunland regional vice-president concerning any possible agency openings in Farmington prior to Agency 2000. In a blind postscript to the regional vice-president, the agency vice president said:
I tried to steer this thing back to you. I don't know about what you've done, but some regions have agreed that they will appoint qualified sons or daughters if the father agrees to retire or give up substantial numbers of accounts. That's, of course, your decision.
Reply (Supplementary) In Opposition to Defendants' Motion to Strike filed April 8, 1998 at exh. P-26 # 2. In October 1994, State Farm's regional vice-president wrote Mr. Ewing that no agent positions were available in Farmington, but that an active agency pool was being formed to replace a retiring agent in Phoenix. The candidates in the agency pool were primarily sons and daughters of State Farm agents hoping for selection prior to Agency 2000. State Farm requested a response within 10 days if Plaintiff was interested. In the alternative, State Farm indicated that Plaintiff could apply for employment with State Farm and proceed through the Agency 2000 process.
In November 1994, Mr. Ewing responded indicating that any opportunity for Plaintiff should rightfully be in Farmington and that Plaintiff could not take an entry level job with State Farm for three years in order to qualify through the Agency 2000 process.
In the spring of 1995, Mr. Ewing informed State Farm that he wanted to retire at the end of 1995. Mr. Ewing reached an agreement with Cal Mayfield, his agency manager. Mr. Mayfield's position was being eliminated as part of Agency 2000. The agreement between Mr. Ewing and Mr. Mayfield was contingent upon Mr. Mayfield being appointed a State Farm agent in Farmington and being assigned Mr. Ewing's policies. Mr. Mayfield agreed to purchase office furniture and equipment and assume Mr. Ewing's lease, as well as pay Mr. Ewing to stay on for 90 days and introduce him to policyholders and smooth the transition.
Mr. Mayfield had worked for State Farm for six years, having been an agent in Hobbs, New Mexico for eleven years previously. He was appointed an independent contractor agent effective November 1, 1995, with an assignment of policies to occur on January 1, 1996. Plaintiff maintains that Mr. Mayfield had been "unofficially appointed" on or before May 18, 1995, when Mr. Ewing signed his termination agreement with State Farm. See Plaintiff's Response filed February 13, 1998 at 7 (disputed material fact no. 4) (doc. 57); Johnson aff. filed December 18, 1997, exh. N (termination agreement) (doc. 42). Following Mr. Ewing's unexpected death on November 22, 1995, State Farm assigned Mr. Ewing's policies to Mr. Mayfield.

Discussion
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An important function of summary judgment is to eliminate factually unsupported claims. See Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548. The nonmovant may not rest upon her pleadings, but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Once the movant has identified an element of a claim that the nonmovant cannot prove, all other factual disputes concerning the claim become immaterial and summary judgment is properly entered. See Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. The summary judgment material relied upon by the nonmovant is viewed in the light most favorable to her; however, that material must contain significantly probative evidence that would allow a *1287 trier of fact to find in her favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Title VII

1. Independent Contractor
State Farm insists that Title VII does not apply to an employer's decisions concerning independent contractors, and thus the court lacks jurisdiction to inquire into its decisions about its agents. While this is true as far as it goes, the complaint in this matter implicates State Farm's recruitment and selection practices for appointing trainee agents who are employed by State Farm prior to their appointment as independent contractor agents. Plaintiff's claim is that she was treated less favorably than male relatives of State Farm agents in the recruitment and selection process that could eventually lead to an offer to be an independent contractor agent. See Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1476-77 (10th Cir.1996). State Farm's position on this point must be rejected, precisely for the same reason it was rejected by the authority attached to State Farm's summary judgment brief. See doc. 40, ex. B (Andrews v. State Farm Mut. Auto Ins. Co., No. 88-0494, unpub. order at 2 (W.D.Va. Aug. 26, 1991), aff'd, 976 F.2d 725, 1992 WL 245874, No. 91-2236 (unpub. per curiam) (4th Cir.1992)); see also Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1146-47 (9th Cir.1997) (Title VII action by Mexican-American woman not selected as trainee agent).

2. Prima Facie Case
State Farm next contends that it is entitled to summary judgment because Plaintiff was not qualified as a State Farm agent in 1995 or thereafter. In its reply brief, State Farm points out that, in her charge filed with the EEOC on May 7, 1996, Plaintiff indicated that the most recent or continuing discrimination against her occurred on December 1, 1995. See Norris aff. filed December 18, 1997 (doc. 46). While no summary judgment evidence reveals the importance of December 1, on November 1, 1995, Mr. Mayfield had been appointed an agent and thereafter was assigned Mr. Ewing's policies. State Farm argues that Plaintiff's claims of discrimination, other than the appointment of Mr. Mayfield, are barred because these events are outside the 300-day period for filing a charge of discrimination in 42 U.S.C. § 2000e-5(e)(1). In other words, many of these claims or events predate July 13, 1995. State Farm raised limitations as an affirmative defense in its answer. See Fed.R.Civ.P. 8(c). State Farm is correct.
Plaintiff must prove intentional discrimination, that because of her gender was treated differently and less favorably than similarly situated males. See Oncale v. Sundowner Offshore Servs., Inc., ___ U.S. ___, ___, 118 S.Ct. 998, 1001, 140 L.Ed.2d 201 (1998). She has no direct evidence of gender discrimination such as a policy that is discriminatory on its face. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985); Ramsey v. City & County of Denver, 907 F.2d 1004, 1007-08 (10th Cir.1990), cert. denied, 506 U.S. 907, 113 S.Ct. 302, 121 L.Ed.2d 225 (1992). Instead, she must rely on indirect proof, i.e. the McDonnell Douglas framework, with its requirement for a prima facie case establishing that she was qualified for the position sought. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Randle v. City of Aurora, 69 F.3d 441, 451-53 (10th Cir.1995). The burden to establish the prima facie case is not a heavy one. See Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
Where qualifications for a position are subjective, a plaintiff normally will progress beyond a prima facie case, a defendant will then come forward with legitimate, non-discriminatory reasons for the personnel action, and a plaintiff will be allowed to prove those reasons are pretextual. See Thomas v. Denny's, Inc., 111 F.3d 1506, 1509-10 (10th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 626, 139 L.Ed.2d 607 (1997); Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1469-70 (10th Cir.1992). This case is different. What distinguishes it is an objective qualification standard *1288 for trainee agents under Agency 2000 that Plaintiff could not meet, specifically, the three-year, previous full-time employment with State Farm. See Thomas, 111 F.3d at 1510 n. 8; Ellis v. United Airlines, Inc., 73 F.3d 999, 1005 n. 6 (10th Cir.) (maximum weights for flight attendants), cert. denied, 517 U.S. 1245, 116 S.Ct. 2500, 135 L.Ed.2d 191 (1996); York v. American Tel. & Tel. Co., 95 F.3d 948, 954 (10th Cir.1996) (two years of practical experience for operating engineer). The uncontroverted evidence is that Mr. Ewing did not want to retire until December 31, 1995,[5] and any agency opening at that time would have been filled pursuant to Agency 2000. In the absence of summary judgment evidence that an employer's qualifications are unreasonable or inconsistently applied, an employer's qualification standards will not be second-guessed by a trier of fact. See York, 95 F.3d at 954. Although Plaintiff asserts that an exception was made to the Agency 2000 qualifications for the son (Ron Sanders) of a male agent appointed in January 1995, see Plaintiff's Response filed February 13, 1998 at 5 (citing Johnson depo. at 125) (doc. 57), the son would have been a trainee agent prior to Agency 2000 and was appointed an agent before the September 1995 effective date of Agency 2000. Plaintiff's reliance on pre-Agency-2000 candidacies involving relatives (Martin Armijo, Kimberly Fleming and Diane Dilallo) likewise does not focus on the pertinent time period. See Reply (Supplementary) in Opposition to Defendants' Motion to Strike filed April 8, 1998, "Memorandum Brief' at 4 & at "Defendants' Violation of Title VII" (doc. 69).
Once Agency 2000 took effect, Plaintiff simply was not qualified to be a State Farm agent absent three years of employment with State Farm. Although Plaintiff had worked with State Farm policies for twenty years, she was an employee of her father, not State Farm. See Deal v. State Farm County Mut. Ins. Co., 5 F.3d 117, 119 (5th Cir.1993). The summary judgment record could not be clearer that the parties knew that Agency 2000 would alter the way State Farm chose its agents, perhaps to the detriment of agents' relatives, particularly those that did not want to complete the three-year requirement.

3. Legitimate Non-Discriminatory Reasons and Pretext
State Farm next argues that even if the Plaintiff made a prima facie case of gender discrimination, she cannot prevail on her gender discrimination claim because State Farm has offered legitimate, nondiscriminatory reasons for the appointment of Mr. Mayfield, including his qualifications and the business needs of both Mr. Ewing and State Farm. Of course, a plaintiff in a Title VII case who makes a prima facie case need only demonstrate that the reasons offered are pretextual or unworthy of belief, in order to avoid summary judgment. See Randle, 69 F.3d at 452 n. 17. This means that a plaintiff is only required to show the falsity of the employer's reasons, not that the reasons conceal a motive for unlawful discrimination.[6]Id. at 453 n. 18. The showing of pretext creates an inference of discriminatory animus sufficient to survive summary judgment. See St. Mary's Honor Ctr., 509 U.S. at 511, 113 S.Ct. 2742. Fortunately for State Farm, Plaintiff's evidence of pretext need not be addressed because she has not made a prima facie case. See Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1362 (10th Cir.1997).

4. Limitations Period and Continuing Violation
In New Mexico, a Title VII Plaintiff must file a charge of discrimination within 300 days "after the alleged unlawful employment *1289 practice occurred." 42 U.S.C. § 2000e-5(e). In the Title VII context, the limitations period serves the salutary purpose of requiring prompt assertion of rights and barring challenge of dated employment decisions. See Delaware State College v. Ricks, 449 U.S. 250, 256-57, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). Much of the summary judgment evidence presented by Plaintiff concerns events and transactions outside the 300-day period prior to May 7, 1996. Much concerns pre-Agency-2000 employment policies and practices.
The court has considered sua sponte whether Plaintiff might rely upon a continuing violation theory under Title VII to recover for events outside the 300-day period. A plaintiff may rely upon events outside the limitations period where one of the events occurs within the filing period, and the prior events are "part of a continuing policy or practice that includes the act or acts within the statutory period." Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1415 (10th Cir.1993). Although the prior events need not be sufficient Title VII claims in themselves, mere continuing effects of a policy or practice occurring outside the limitations period are not sufficient. See Furr v. AT & T Technologies, Inc., 824 F.2d 1537, 1543 (10th Cir.1987). Where, as here, a plaintiff cannot make a prima facie case for events occurring within the limitations period, the continuing violation theory does not apply because plaintiff cannot show that the same type of discrimination links the alleged violations within and without the limitations period. See Mascheroni v. Board of Regents, 28 F.3d 1554, 1561-62 (10th Cir.1994). Moreover, equitable considerations counsel against invoking the doctrine in this case. The purpose of the doctrine is to preserve a claim until a reasonable person would be aware that her rights have been violated. See Martin, 3 F.3d at 1415 n. 6. The interaction of Plaintiff and her father with State Farm spanning some twelve years prior to the adoption of Agency 2000 surely should have alerted a reasonable person that State Farm, for whatever reason, was not going to appoint her an agent in Farmington.

B. State Law Diversity Claims

1. Breach of Contract and Duty of Good Faith
In count II, Plaintiff claims that she should have been appointed an agent as a third-party beneficiary of a contract between her father and State Farm, or in her own right. She claims that the failure to appoint her constitutes a breach of the duty of good faith and fair dealing. Although the Plaintiff and her father have long contended that State Farm's agency agreement with Mr. Ewing and the policy statement concerning potential appointment of relatives (pre-Agency-2000) somehow required State Farm to appoint her an agent in Farmington, nothing in those documents, Mr. Ewing's termination agreement, or the declaration of understanding signed by Plaintiff as part of the selection process for trainee agents, has been brought to the court's attention on summary judgment that would make such a theory viable. State Farm had discretion, not a duty, to appoint relatives as trainee agents. Furthermore, the implied covenant of good faith and fair dealing cannot provide the foundation for terms not in a contract. See Watson Truck & Supply Co. v. Males, 111 N.M. 57, 801 P.2d 639, 642 (1990).

i. Limitations
State Farm first argues that the Plaintiff's breach of contract claim is barred by the four-year limitations period applicable to unwritten contracts, see N.M. Stat. Ann. § 37-1-4 (Michie 1990 Repl. Pamp.). The limitation period on claims runs from the date the cause of action accrues, and on contract claims that is the date of the breach. See N.M. Stat. Ann. § 37-1-1 (Michie 1990 Repl. Pamp.); Nashan v. Nashan, 119 N.M. 625, 894 P.2d 402, 410 (Ct.App.), cert. denied, 119 N.M. 464, 891 P.2d 1218 (1995). Plaintiff contends that a prior agency manager promised her on two occasions (in 1983 and prior to December 1988) that she would be appointed an agent in Farmington at the next available opening. She acknowledges that despite these promises she did not receive an appointment as a trainee agent when openings occurred in 1984 and 1989, see Reply (Supplementary) in Opposition to Defendants' *1290 Motion to Strike filed April 8, 1998 at "Application History of Plaintiff' ¶¶ 2-3; at exh. P-17 (doc. 69), and that a successor agency manager told her in 1989 that she would never be hired, that she would have to go elsewhere to prove herself before being considered for any Farmington appointment. See id. at "Application History of Plaintiff" ¶ 4. Merely because the successor agency manager did not "disagree[ ] that she was in the pool for the Farmington district," id., does not create a material issue of fact as to when the alleged breaches occurred, see Tull v. City of Albuquerque, 120 N.M. 829, 907 P.2d 1010, 1012 (Ct.App.1995) (applying single wrong theory), or her knowledge of those breaches, see Duncan v. Campbell, 123 N.M. 181, 936 P.2d 863, 864-65 (Ct.App.) (knowledge of problem allows for accrual of cause of action and running of limitation period), cert. denied, 123 N.M. 168, 936 P.2d 337 (1997).

ii. Statute of Frauds and Vagueness
State Farm also argues that the statute of frauds bars enforcement of the alleged promises. This ground must be rejected. The statute of frauds applies to oral contracts that cannot be performed within one year, however, contracts for life or for an indefinite period of time do not come within its reach. See Kestenbaum v. Pennzoil Co., 108 N.M. 20, 766 P.2d 280, 283 (1988), cert. denied, 490 U.S. 1109, 109 S.Ct. 3163, 104 L.Ed.2d 1026 (1989). Plaintiff contends she was promised that she "would be placed in line for the next available State Farm agency," and that the agency manager "would appoint [her] as an agent as soon as there was an opening." Brief in Support of Defendants' Motion for Summary Judgment filed December 18, 1997, exh. A (doc. 40). State Farm argues that a two-year appointment as a trainee agent must precede appointment as an agent, therefore, the alleged promises could not be performed within a year and the statute of frauds applies. See Gonzales v. United Southwest Nat'l Bank, 93 N.M. 522, 602 P.2d 619, 621 (1979). Construing the evidence in the light most favorable to the Plaintiff, however, a reasonable inference exists that the length of the training period is discretionary and could be less than two years. See, e.g., Johnson aff. filed December 18, 1997 at 5, ¶ 11 (doc. 42). If so, the statute of frauds would not apply to the alleged promises.
The statute of frauds would not apply to an oral promise to become a trainee agent, with employment terminable at will by either party, because such a promise could be fulfilled in less than one year. See Restatement (Second) of Contracts, § 130, illus. 6 (1981).
State Farm finally argues that any oral promise made to the Plaintiff is too vague and indefinite to be enforceable. Given the summary judgment materials offered by the Plaintiff as to State Farm's policies and procedures regarding trainee agents, the court declines to rely upon this ground.

2. Intentional Infliction of Emotional Distress
Counts III and IV of the complaint are tort claims with a three-year limitation period. See N.M. Stat. Ann. § 37-1-8 (Michie 1990 Repl. Pamp.). Intentional infliction of emotional distress requires (1) extreme and outrageous conduct under the circumstances, (2) that a defendant acted intentionally or recklessly and (3) that as a result of the conduct Plaintiff experienced severe emotional distress. Jaynes v. Strong-Thorne Mortuary, Inc., No. 23154, 1997 WL 836532, at *5 (N.M. November 13, 1997) (relying upon 3 N.M.R. Ann. § 13-1628 (Michie 1998)). Extreme and outrageous conduct is beyond the bounds of common decency and is atrocious and intolerable to the ordinary person. See Mantz v. Follingstad, 84 N.M. 473, 505 P.2d 68, 75 (Ct.App.1972) (citing Restatement (Second) of Torts, § 46 (1965)). Emotional distress is severe if it is of such intensity and duration that a reasonable person would not be expected to endure it. See Jaynes, 954 P.2d at 50.
Taking into account the events that preceded the three years before March 20, 1997, the date the complaint was filed, Plaintiff has not sustained her burden of showing a genuine issue of material fact on this claim. As previously discussed, Plaintiff was not qualified under Agency 2000 to succeed her father in Farmington. As to events that preceded September 1995, the effective date of Agency 2000, and taking Plaintiff's *1291 statements as true, no openings occurred in the Farmington district after July 1, 1990 until Mr. Mayfield was appointed on November 1, 1995. See Reply (Supplementary) In Opposition to Defendants' Motion to Strike filed April 8, 1998 exh. P-17 (doc. 69). State Farm's altering the qualifications for its agents and failure to create an opening for the Plaintiff in Farmington prior to Agency 2000 does not constitute intentional infliction of emotional distress.

3. Prima Facie Tort
Despite being unable to recover on her claim of intentional infliction of emotional distress, it is still necessary to consider Plaintiff's claim for prima facie tort. See Schmitz v. Smentowski, 109 N.M. 386, 785 P.2d 726, 736 (1990). Prima facie tort requires (1) an intentional, lawful act by the defendant, (2) intent to injure the plaintiff, (3) injury to the plaintiff proximately caused by the act, and (4) lack of or insufficient justification for the act. See Schmitz, 785 P.2d at 734; N.M.R. Ann. § 13-1631 (Michie 1998). A plaintiff is not required to show that the sole motivation behind the defendant's act is an intent to harm. See Schmitz, 785 P.2d at 735. An intent to harm may be shown where a defendant acts with certainty that injury will result. See id. at 738. In such circumstances, any intent to harm must be balanced against the defendant's justification considering (1) the nature and seriousness of the harm, (2) the interests advanced by the defendant's conduct, (3) the character (fairness or unfairness) of the means used by the defendant, and (4) the defendant's motives. See id. at 739; N.M.R. Ann. § 13-1631A (1998).
Because Plaintiff has not set forth what acts constitute the basis of a prima facie tort, it is difficult to evaluate this claim. See Wright v. State Farm Mut. Auto. Ins. Co., 911 F.Supp. 1364, 1369 n. 1 (D.Kan.1995) (court must be wary of constructing non-apparent arguments for pro se litigant), aff'd, 94 F.3d 657 (10th Cir.1996). It is doubtful that it is properly asserted in this case because Plaintiff contends that unlawful acts, i.e. gender discrimination, resulted in her injury. See Lee v. ABF Freight Sys., Inc., No. CIV 91-1254 JC/RWM, 1992 WL 611458, at *2 (D.N.M. Sept.23, 1992); Hill v. Cray Research, Inc., 864 F.Supp. 1070, 1078 (D.N.M.1991). Although prima facie tort can occur in a workplace setting, see Beavers v. Johnson Controls World Servs., Inc., 120 N.M. 343, 901 P.2d 761 (Ct.App.), cert. denied, 120 N.M. 68, 898 P.2d 120 (1995), it is unlikely that it was meant to interfere with a company's prerogative to select its employees or independent contractors. See Schmitz, 785 P.2d at 738 (noting that prima facie tort cannot be used to avoid employment at will doctrine); Hill, 864 F.Supp. at 1078-80. Though the court has considered Plaintiff's presentation carefully, it is hardly apparent what evidence would entitle her to a trial on this theory.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the Defendants' Motion for Summary Judgment filed December 18, 1997 (doc. 39) is granted.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendants' Motion to Strike filed March 9, 1998 (doc. 62) is denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendants' Unopposed Motion for Extension of Time to File Reply Brief in Support of Defendants' Motion to Strike filed April 23, 1998 (doc. 72) is denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendants' Second Motion to Strike filed April 23, 1998 (doc. 70) is denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendants' request for attorney's fees (doc. 10) is denied.
Judgment shall be entered accordingly.
NOTES
[1]  This pleading actually consists of an introductory document entitled "Reply (Supplementary) in Opposition to Defendants' Motion to Strike" and several other documents including a "Memorandum Brief (Supplementary) In Opposition to Defendants['] Motion to Strike," "Establishing the Prima Facie Evidence," an "Application History of Plaintiff," and numerous exhibits with explanations by the Plaintiff of how they support her case. The Clerk docketed all of the documents as one entry (doc. 69), and the court generally will cite it as "Reply (Supplementary) in Opposition to Defendants' Motion to Strike."
[2]  The agency manager was a State Farm employee who oversaw the independent contractor agents in a particular area, here the Farmington-Grants-Gallup area of northwestern New Mexico.
[3]  By December 31, 1995, appointments to agencies were governed by the Agency 2000 process. See Johnson aff. filed December 18, 1997 at 14, ¶ 29 (doc. 42).
[4]  The Sunland Region had a pre-Agency-2000 requirement that prospective candidates have a college degree or a CLU designation. At Mr. Ewing's request, this requirement was waived for Plaintiff and she was allowed compete in an agency pool for Yuma until she withdrew from the selection process. See Johnson aff. filed December 18, 1997, exh. H (doc. 42); Reply (Supplementary) in Opposition to Defendants' Motion to Strike filed April 8, 1998, exh. P-18 (doc. 69). Plaintiff also was in an agency pool for a possible agency in Telluride, Colorado. State Farm decided not to locate an agent in Telluride and the agency manager wrote Plaintiff in September 1994 that her application was being deactivated given the advent of Agency 2000. See Bock aff. filed December 18, 1997, exh. B (undesignated on original) (doc. 41).
[5]  Plaintiff suggests that this date was selected to insure spousal benefits for Mr. Ewing's second wife. See Reply (Supplementary) in Opposition to Defendants' Motion to Strike filed April 8, 1998 at exh. P-23 (doc. 69). State Farm adds that the date was selected because of Mr. Ewing's financial need  he had previously declared bankruptcy.
[6]  Thus, the statement in State Farm's reply brief that the Plaintiff must at the pretext stage show falsity and that discrimination was the real reason, see Reply in Support of Defendants' Motion for Summary Judgment filed March 9, 1998 at 5 (doc. 64), is too restrictive under Tenth Circuit law. To avoid summary judgment at the pretext stage, Plaintiff need only show that the reasons are unworthy of belief or that a discriminatory reason really motivated the employer. See Marx v. Schnuck Mkts., Inc., 76 F.3d 324, 327-28 (10th Cir.), cert. denied, 518 U.S. 1019, 116 S.Ct. 2552, 135 L.Ed.2d 1071 (1996).


64 F.2d 1 (1933)
FOLEY
v.
UNITED STATES.
No. 6699.
Circuit Court of Appeals, Fifth Circuit.
March 24, 1933.
Rehearing Denied April 21, 1933.
*2 R. A. Hendricks and Bart A. Riley, both of Miami, Fla., for appellant.
W. P. Hughes, of Jacksonville, Fla., for the United States.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
SIBLEY, Circuit Judge.
By tapping the telephone wires leading into the residence of Karl Foley in Miami, Fla., prohibition agents of the United States overheard many orders for intoxicating liquors given to Foley and his associates, arrangements made for payment and deliveries of liquors from some place of storage elsewhere, quotations of prices, and communications with Canada and Bimini respecting the purchase and importation of liquors, and so learned that the residence was the office for a large business done in imported liquors and what records and instrumentalities of the business must be in the house. One of these agents, upon his own affidavit and those of other agents setting forth fully these conversations and that by acting on information so received they had been able to seize some of the liquors, applied to the District Judge for a warrant for the search of the described dwelling and the seizure therein of properties, documents, books, papers, records, codes, and accounts used as the means and instrumentalities of committing a felony, to wit, an existing conspiracy to unlawfully import, transport, sell, furnish, and deliver prohibited intoxicating liquors, and to maintain common nuisances in the keeping and selling thereof contrary to the National Prohibition Act (27 USCA), and to unlawfully bring into the United States without inspection, declaration, and entry, and to receive, conceal, and facilitate the transportation of such unlawfully imported liquors, contrary to the Tariff Act of 1930 (19 USCA § 1001 et seq.). The books, accounts, and records were elaborately described by their contents. A typewriter and adding machine were also specified. The judge made a finding of probable cause and issued a warrant for the seizure of the described property. The warrant was executed by the prohibition agents, who made a return showing the seizure of the described books and papers, typewriter, and adding machine. Thereafter, but on the same day, warrants of arrest were issued and executed against Karl Foley and others. Foley was given a hearing before a United States Commissioner, who declined to inquire into the validity of the search warrant which he had not issued, and on the evidence of the witnesses produced bound him over to the District Court upon a charge of conspiracy. Thereupon Foley instituted the proceeding here under review. It is a petition entitled in the District Court of the United States for the Southern District of Florida, Karl Foley v. United States of America, and addressed to the judge of said court. It is brought by Karl Foley as a citizen of the district domiciled in the described dwelling in Miami and tells of the search of his home by the named prohibition agents under the search warrant issued by the judge, referring to it and the return upon it as of file in the court. It tells of the hearing before the Commissioner and his refusal to act upon the lawfulness of the warrant, and that Foley was bound over to the court, but although a reasonable time had elapsed no indictment had been brought against him. The petition claimed that the information on which the warrant had issued was unconstitutionally obtained in that neither Foley nor the telephone company to whom the wires belonged had consented to their being tapped; and that the property seized was being held by the marshal and clerk of the court, and by the district attorney, the last named proposing in the future to use it as evidence in a criminal trial in the court should petitioner be indicted. The prayers were that under 18 USCA § 625 the court would take the testimony of the witnesses in relation to the grounds for search warrant, that it would quash the warrant and would suppress the evidence thus unlawfully obtained and would order the return of the seized property to the custody of the petitioner. As parties it named the district attorney, the marshal, the clerk, and the prohibition agents. The district attorney accepted service of a notice that on a named date Foley would "move the court" for an order upon the petition, and he appeared at the hearing, the clerk and prohibition agents also being present. Foley's counsel there contended that the proceeding was before the judge as a committing magistrate who had issued the search warrant and was independent of any criminal case that might thereafter arise. He stated he had no additional witnesses, but wished to cross-examine those who made the affidavits for the issuance of the search warrant in order to show that they had no permission to tap the wires and that they did not recognize anybody's voice and could not have identified anyone prior to the search. The judge ruled that in issuing the search warrant there was no question of identifying persons but only the place and the *3 things to be seized, and that the question of identification of persons would arise only on a trial. Thereupon "the court having heard argument of counsel and being advised in the premises, it is ordered, adjudged and decreed that the petition be and the same is hereby denied." This appeal followed.
It is urged that the judgment is not a final one from which an appeal may be taken. There is some difficulty in classifying it. It does not concern a search incident to and justified by an arrest, but concerns a search warrant. This is not a case in which a prosecution was actually in progress in the District Court, although one was evidently imminent. The petition in one of its prayers refers to 18 USCA § 625, authorizing a summary hearing touching the issuance and execution of the search warrant before the officer who issued it, whether judge or commissioner. No review is provided by that statute. The judgment rendered in such a hearing would not seem to be appealable if by a Commissioner, nor does it bind a court subsequently trying a criminal case. Herter v. United States (C. C. A.) 33 F.(2d) 402, 65 A. L. R. 1240. It may be doubted whether such a decision by a judge as the mere issuer of a warrant would stand otherwise. But this petition is filed in the district court and formally entitled therein and addressed to its judge. The notice given warns of action by the court, and the judgment is a formal one by the court, and no doubt entered upon its minutes. Besides the prayer under the statute there are other separate prayers for the return of property alleged to be in the hands of the court's officers, the clerk, the marshal and the district attorney, and for the prevention of its use as evidence in the court by the district attorney. The prohibition agents were the parties to the search warrant and would have been the proper respondents in a hearing under section 625. The officers of the court were not parties to the search warrant and are joined in this petition because they had the property and were intending to use it, wrongfully as was claimed. As to them the proceeding could and should be one in the court to control their conduct as court officers. Though no indictment be pending, the court may reach forward to control the improper preparation of evidence which is to be used in a case coming before it, and can always by summary procedure restrain oppressive or unlawful conduct of its own officers. Go-Bart Importing Co. v. United States, 282 U. S. at pages 354, 355, 51 S. Ct. 153, 75 L. Ed. 374; Atlanta Enterprises v. Crawford, Marshal (D. C.) 22 F.(2d) 834; In re Film and Pictorial Representation of Dempsey-Tunney Fight (D. C.) 22 F.(2d) 837. We think this judgment is one by the district court exercising such summary jurisdiction. An appeal was entertained without question from the refusal of the District Judge to quash a search warrant which he had issued in Dumbra v. United States, 268 U. S. 435, 45 S. Ct. 546, 69 L. Ed. 1032. In Steele v. United States, 267 U. S. 499, 45 S. Ct. 414, 69 L. Ed. 757, a Commissioner issued the warrant but a motion to quash it and for the return of the seized property was made before and refused by the District Judge. An appeal was entertained from the order. Not only so, but it was said that the judgment of the judge on the motion to quash was res judicata in the criminal trial which followed, page 507 of 267 U. S., 45 S. Ct. 414. But it has since been said that the ruling of the judge on such questions is not conclusive in the criminal trial but the court may, if it is willing again to go into the means by which the evidence was secured, review the ruling and allow error assigned on it. Cogen v. United States, 278 U. S. at page 224, 49 S. Ct. 118, 73 L. Ed. 275. In the case last cited the reviewability of such a preliminary order is extensively examined, and the conclusion reached that the order there involved was interlocutory because the motion to return the seized property was made after indictment found. At page 225 of 278 U. S., 49 S. Ct. 118, 120, referring to applications in summary proceedings against officers of court it is said: "The independent character of the summary proceedings is clear, even where the motion is filed in a criminal case, whenever the application for the [return of] papers or other property is made by a stranger to the litigation, * * * or wherever the motion is filed before there is any indictment or information against the movant, like the motions in Perlman v. United States, 247 U. S. 7, 38 S. Ct. 417, 62 L. Ed. 950, and Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159." Because the present petition was filed when no indictment was pending we think the judgment on it is independently reviewable.
The court did not err in refusing to go into a cross-examination of witnesses on the question of identifying the persons using the telephones. The object of the search warrant, sanctioned by 18 USCA § 612(2), was the seizure of particular property concealed in the dwelling and used in the commission of a felony. By that statute it might be seized *4 "from the possession of the person by whom it was used in the commission of the offense, or from any person in whose possession it may be." No persons were named in the warrant and none need have been. Property, not persons, was sought and seized.
The warrant itself disclosed that it rested upon the intercepted telephone communications. Since evidence was refused on the point of consent to tap the wires, we assume there was no consent. By the common law of evidence, aside from self-incrimination, truth was received as truth no matter if it was discovered by reprehensible means. When, however, officers of the federal government break the Federal Constitution to get at the truth the federal courts refuse to hear it, esteeming the upholding of the constitutional guaranties against abuse of governmental power more important in such circumstances than the discovery of the truth. The deceitful and surreptitious obtaining by an officer of papers prevented their use as evidence though the force of government was not used, in Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647. But for this court it is settled that the surreptitious eavesdropping of federal officers by secretly tapping telephone wires is no worse than other eavesdropping, and does not require the discarding of the information secured. Olmstead v. United States, 277 U. S. 438, 48 S. Ct. 564, 72 L. Ed. 944, 66 A. L. R. 376. No physical invasion of Foley's premises is claimed.
The things seized were not mere evidence. They were things actually used in committing the crime of conspiracy charged, and considering the extent of the business done they were even necessary to its commission. Whether the business was buying and selling liquors or a brokerage between buyers in the United States and sellers in foreign lands, it was extensive and required bookkeeping and other records. Among the things seized were books of unfilled orders and ledgers of customers' accounts, and stock books showing liquors ordered, received, delivered and on hand which contained many pages and referred to scores of different brands. There were many invoices of shipments from Bimini, apparently current business. There were price lists covering more than a hundred brands of whiskys and other liquors. The typewriter and adding machine were shown to have been used in the business by the records made with them. We think all these clearly appear to be things used as a means of carrying on the very extensive conspiracy against the laws of the United States which was evidently in progress, and might lawfully be sought for and seized under a warrant describing them. "There is no special sanctity in papers as distinguished from other forms of property, to render them immune from search and seizure if only they fall within the scope of the principles of the cases in which other property may be seized, and if they be adequately described in the affidavit and warrant." Gouled v. United States, 255 U. S. at page 309, 41 S. Ct. 261, 265, 65 L. Ed. 647. In Marron v. United States, 275 U. S. 192, 48 S. Ct. 74, 72 L. Ed. 231, account-books and papers in sight when one was lawfully arrested were held properly seized because used to carry on the criminal enterprise, though there was no search warrant for them. Go-Bart Co. v. United States, 282 U. S. 344, 51 S. Ct. 153, 75 L. Ed. 374, and United States v. Lefkowitz, 285 U. S. 452, 52 S. Ct. 420, 76 L. Ed. 877, involved a forcible exploratory search dependent on an arrest. There was no search warrant. Neither case is in point. Foley faces a search warrant regularly issued upon abundant showing of probable cause, and his contention falls before it.
Judgment affirmed.
FOSTER, Circuit Judge, dissents.

On Petition for Rehearing.
PER CURIAM.
As neither of the judges who concurred in the judgment of the court in the above numbered and entitled cause is of opinion that the petition for rehearing should be granted, it is ordered that the said petition be, and the same hereby is, denied.