626 F.3d 187 (2010)
Daniel COLEMAN, Plaintiff-Appellant,
v.
MARYLAND COURT OF APPEALS; Frank Broccolina, State Court Administrator; Larry Jones, Contract Administrator, Defendants-Appellees.
No. 09-1582.
United States Court of Appeals, Fourth Circuit.
Argued: September 23, 2010.
Decided: November 10, 2010.
*188 ARGUED: Edward Smith, Jr., Law Office of Edward Smith, Jr., Baltimore, Maryland, for Appellant. Hugh Scott Curtis, Office of the Attorney General of Maryland, Baltimore, Maryland, for Appellees. ON BRIEF: Douglas F. Gansler, Attorney General, Kendra Y. Ausby, Assistant Attorney General, Office of the Attorney General of Maryland, Baltimore, Maryland, for Appellees.
*189 Before TRAXLER, Chief Judge, SHEDD, Circuit Judge, and James C. DEVER III, United States District Judge for the Eastern District of North Carolina, sitting by designation.
Affirmed by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge SHEDD and Judge DEVER joined.

OPINION
TRAXLER, Chief Judge:
Daniel Coleman appeals the dismissal of his amended complaint in this suit alleging, as is relevant here, violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), see 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2003 & Supp.2010), and of the Family and Medical Leave Act of 1993 ("FMLA"), see 29 U.S.C.A. §§ 2601-54 (West 2009 & Supp.2010). Finding no error, we affirm.

I.
Coleman's Title VII claim was dismissed for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). In reviewing such a dismissal, we accept the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. See Flood v. New Hanover Cnty., 125 F.3d 249, 251 (4th Cir.1997). Viewed through that lens, the facts for purposes of this appeal are as follows.
Coleman, an African-American male, was employed by the Maryland Court of Appeals from March 2001 to August 2007 and served as executive director of procurement and contract administration since early 2003. Coleman was supervised by Frank Broccolina, a white male, and Faye Gaskins, whose race is not specified. Larry Jones, whose race also is not specified, was a member of Coleman's staff and was related to Gaskins. In October 2005, Coleman investigated a matter involving Jones and Joyce Shue, a white female. Coleman's investigation "resulted in a five (5) day suspension" for Jones. J.A. 21. After Broccolina and Gaskins intervened, however, Jones's suspension was reduced to only one day. In retaliation for Coleman's investigation, Jones falsely alleged that Coleman had steered contracts to vendors in which Coleman had an interest, and Jones encouraged Broccolina to investigate. Broccolina, in turn, shared the allegations with others despite knowing that they were false.
During his employment, Coleman satisfied the performance standards of his position and received all applicable "raises and increments." J.A. 26. However, in early April 2007, he received a letter of reprimand from Gaskins concerning "a communication protocol." J.A. 25. Coleman's appeal of the reprimand was unsuccessful. Then, on August 2, 2007, Coleman sent Broccolina a sick-leave request "based upon a documented medical condition." J.A. 26. Broccolina contacted Coleman the next day and informed him that he would be terminated if he did not resign. Coleman alleges that he was fired for requesting sick leave and because he is black. He also alleges that the contract-steering charge played a role in his termination.
After exhausting his administrative remedies, Coleman initiated the present action. The complaint before us names Broccolina, Jones, and the Maryland Court of Appeals as defendants and alleges violations of Title VII and the FMLA.[1] On defendants' *190 motion, the district court dismissed the Title VII claim on the grounds that Coleman failed to state a claim for which relief could be granted, see Fed.R.Civ.P. 12(b)(6), and dismissed the FMLA claim on the basis that it was barred by Eleventh Amendment immunity, see Fed. R.Civ.P. 12(b)(1).

II.
Arguing that the complaint properly alleged both a claim for disparate treatment and a claim for retaliation, Coleman maintains that the district court erred in dismissing his Title VII cause of action. We disagree.
We review de novo the grant of a motion to dismiss under Rule 12(b)(6). See Sucampo Pharm., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 550 (4th Cir. 2006). When ruling on such a motion, "a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (citations omitted). A complaint "need only give the defendant fair notice of what the claim is and the grounds upon which it rests." Id. at 93, 127 S.Ct. 2197 (alteration and internal quotation marks omitted). However, to survive a motion to dismiss, the complaint must "state[] a plausible claim for relief" that "permit[s] the court to infer more than the mere possibility of misconduct" based upon "its judicial experience and common sense." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). In this regard, while a plaintiff is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), "[f]actual allegations must be enough to raise a right to relief above the speculative level," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). See also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.2009).
Title VII prohibits an employer from "discharg[ing] any individual, or otherwise. . . discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race." 42 U.S.C.A. § 2000e-2(a). Absent direct evidence, the elements of a prima facie case of discrimination under Title VII are: (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class. See White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir.2004). Title VII also prohibits employers from "discriminat[ing] against any of [their] employees . . . because [the employees] ha[ve] opposed any practice made an unlawful employment practice by [Title VII], or because [the employees] ha[ve] . . . participated in any manner in an investigation" under Title VII. 42 U.S.C.A. § 2000e-3(a). The elements of a prima facie retaliation claim under Title VII are: (1) engagement in a protected activity; (2) adverse employment action; and (3) a causal link between the protected activity and the employment action. See Mackey v. Shalala, 360 F.3d 463, 469 (4th Cir.2004).
Here, although Coleman's complaint conclusorily alleges that Coleman *191 was terminated based on his race, it does not assert facts establishing the plausibility of that allegation. The complaint alleges that Jones and Broccolina began their campaign against Coleman in retaliation for his investigation of Jones's conflict with Shue. The complaint further alleges that Coleman "was treated differently as a result of his race than whites" and specifically identifies Broccolina as a white person who was not disciplined despite having "outside business involvements." J.A. 21-22, 25 (emphasis omitted). However, the complaint fails to establish a plausible basis for believing Broccolina and Coleman were actually similarly situated or that race was the true basis for Coleman's termination.[2] The complaint does not even allege that Broccolina's "outside business involvements" were improper, let alone that any impropriety was comparable to the acts Coleman was alleged to have committed.[3] Absent such support, the complaint's allegations of race discrimination do not rise above speculation. Thus, the district court correctly concluded that the complaint failed to state a Title VII race discrimination claim. See Iqbal, 129 S.Ct. at 1949 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.").
The district court also correctly ruled that Coleman failed to state a Title VII retaliation claim. No facts in the complaint identify any protected activity by Coleman that prompted the retaliation of which he complains. Coleman maintains that his protected activity was his intervention in the conflict between Jones and Shue. However, the complaint does not explain why Coleman's investigation would be considered protected activity. We therefore affirm the dismissal of the Title VII claim.

III.
Coleman next contends that the district court erred in dismissing his FMLA claim on the basis of Eleventh Amendment immunity. Specifically, he argues that the district court erred in concluding that Congress unconstitutionally abrogated the states' Eleventh Amendment immunity with respect to the FMLA's self-care provision. We disagree.
The Eleventh Amendment bars suit in federal court against an unconsenting state and any governmental units that are arms of the state unless Congress has abrogated the immunity. See Alden v. Maine, 527 U.S. 706, 755-57, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). In order to do so, Congress must unequivocally declare its intent to abrogate and must act pursuant to a valid exercise of its power. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). The first prong of this test is clearly satisfied here. See Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 726, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) (explaining that "[t]he clarity of Congress' intent" to abrogate the states' immunity to FMLA suits "is not fairly debatable"). It is the second requirement that is at issue.
The Supreme Court has held that while Congress cannot validly abrogate a state's immunity from private suit under its Article I powers, it can do so under its *192 Fourteenth Amendment, § 5 authority. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 364, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). The Fourteenth Amendment provides that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Section 5 authorizes Congress to enact "appropriate legislation" to enforce these substantive guarantees. Id. § 5. This section authorizes Congress not only to codify the Supreme Court's holdings regarding the rights established by the Fourteenth Amendment, but also to prevent future violations of those rights. See City of Boerne v. Flores, 521 U.S. 507, 518, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Although Congress may "enact prophylactic legislation prohibiting conduct that is `not itself unconstitutional,' it may not substantively redefine Fourteenth Amendment protections." Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 484-85 (4th Cir.2005) (citing City of Boerne, 521 U.S. at 519, 117 S.Ct. 2157). The Supreme Court has held that to ensure Congress abides by this distinction, "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." City of Boerne, 521 U.S. at 520, 117 S.Ct. 2157.
As originally enacted, the FMLA authorized qualified employees to take up to 12 weeks of unpaid leave annually in four circumstances, three of which concern caring for family members: bearing and caring for a child, see 29 U.S.C.A. § 2612(a)(1)(A), adopting or providing foster care for a child, see id. § 2612(a)(1)(B), and caring for a spouse, child, or parent with a serious health condition, see id. § 2612(a)(1)(C). The fourth circumstance is when "a serious health condition . . . makes the employee unable to perform the functions of [his] position." Id. § 2612(a)(1)(D). Congress has subsequently amended the FMLA to also authorize leave because of an exigency arising out of the fact that an employee's spouse, child, or parent is on covered active duty, or has been notified of an impending call to such duty in the armed forces. See National Defense Authorization Act for Fiscal Year 2008, Pub.L. No. 110-181, § 585, 122 Stat. 3 (2008) (codified at 29 U.S.C.A. § 2612(a)(1)(E)). The FMLA creates a private right of action for equitable relief or money damages against any employer that denies its employee his FMLA rights. See id. §§ 2615(a), 2617(a).
In Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003), on which Coleman relies, the Supreme Court addressed whether the FMLA's third provision, relating to caring for a family member with a serious health condition, constituted a valid abrogation of the states' sovereign immunity. In concluding that it was, the Court determined that Congress had enacted the FMLA in response to "the States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits." Hibbs, 538 U.S. at 735, 123 S.Ct. 1972; see also id. at 731, 123 S.Ct. 1972 (describing the gender gap in state leave policies as being the result of "the pervasive sex-role stereotype that caring for family members is women's work"). The Court confirmed that a "heightened level of scrutiny" applied to gender discrimination, id. at 736, 123 S.Ct. 1972, which requires that classifications distinguishing between different genders be substantially related *193 to the achievement of important governmental objectives. See id. at 728, 123 S.Ct. 1972. The Court held that the test was satisfied in the case of § 2612(a)(1)(C) because it was "narrowly targeted at the fault-line between work and familyprecisely where sex-based overgeneralization has been and remains strongest." Id. at 738, 123 S.Ct. 1972. As Hibbs concerned only this family-care provision, § 2612(a)(1)(C), the Court did not discuss whether Congress validly abrogated states' immunity with regard to the self-care provision, § 2612(a)(1)(D).
The Court's analysis, focused as it is on the gender-related nature of § 2612(a)(1)(C), does not support the validity of Congress's abrogation of sovereign immunity for violations of § 2612(a)(1)(D).[4] And, the legislative history accompanying the FMLA shows that preventing gender discrimination was not a significant motivation for Congress in including the self-care provision; rather, Congress included that provision to attempt to alleviate the economic effect on employees and their families of job loss due to sickness and also to protect employees from being discriminated against because of their serious health problems. See Brockman v. Wyoming Dep't of Family Servs., 342 F.3d 1159, 1164 (10th Cir.2003); S.Rep. No. 103-3, at 11-12 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 13-14; H.R.Rep. No. 101-28(I), at 23 (1990). Moreover, even had Congress intended the self-care provision to be protection against gender discrimination, Congress did not adduce any evidence establishing a pattern of the states as employers discriminating on the basis of gender in granting leave for personal reasons. See Touvell v. Ohio Dep't of Mental Retardation & Developmental Disabilities, 422 F.3d 392, 402 (6th Cir.2005); Laro v. New Hampshire, 259 F.3d 1, 10-11 (1st Cir. 2001). Without such evidence, the self-care provision cannot pass the congruence-and-proportionality test. See Touvell, 422 F.3d at 402; Laro, 259 F.3d at 10-11.
Absent a showing that the self-care provision is congruent and proportional to a Fourteenth Amendment injury that Congress enacted the provision to remedy, Coleman is left to argue that we should simply evaluate the FMLA's immunity abrogation as a whole rather than considering the self-care provision individually. But we know of no basis for adopting such an undifferentiated analysis or concluding that the Hibbs Court did so. See Tennessee v. Lane, 541 U.S. 509, 530-31, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004) ("[N]othing in our case law requires us to consider Title II [of the Americans with Disabilities Act], with its wide variety of applications, as an undifferentiated whole."); Toeller v. Wisconsin Dep't of Corr., 461 F.3d 871, 879 (7th Cir.2006) ("[W]e shouldindeed mustlook at each provision of the [FMLA] separately, even though we should also evaluate each provision in context."). Indeed, the Hibbs Court took pains throughout its opinion to make clear that the case it was deciding concerned only the family-leave portion of the FMLA. See, e.g., Hibbs, 538 U.S. at 725, 123 S.Ct. 1972 ("We hold that employees of the State of Nevada may recover money damages in the event of the State's failure to comply with the family-care provision of *194 the Act."); id. at 737, 123 S.Ct. 1972 ("We believe that Congress' chosen remedy, the family-care leave provision of the FMLA, is congruent and proportional to the targeted violation." (internal quotation marks omitted)); id. at 740, 123 S.Ct. 1972 ("[W]e conclude that § 2612(a)(1)(C) is congruent and proportional to its remedial object.").
We note that since Hibbs was decided, each of the four circuit courts to consider the issue has concluded that Congress did not validly abrogate sovereign immunity as to the FMLA's self-care provision. See Nelson v. Univ. of Tex. at Dallas, 535 F.3d 318, 321 (5th Cir.2008); Toeller, 461 F.3d at 877-79; Touvell, 422 F.3d at 398-405; Brockman, 342 F.3d at 1164-65. We now join these circuits. Because we hold that Congress did not validly abrogate the states' immunity, we conclude that the district court properly dismissed Coleman's FMLA claim as barred by the Eleventh Amendment.

IV.
In sum, holding that Coleman's complaint fails to state a Title VII claim for which relief could be granted and that his FMLA claim is barred by sovereign immunity, we affirm the district court's dismissal of Coleman's action.
AFFIRMED
NOTES
[1]  The district court construed Coleman's complaint as asserting the FMLA claim against Broccolina and Jones in their official capacities only. Coleman does not challenge that interpretation on appeal.

Coleman's complaint also includes a state-law claim for defamation. The district court dismissed that claim as barred by the Eleventh Amendment and the Maryland Tort Claims Act. Coleman does not challenge the dismissal of that claim.
[2]  The complaint also conclusorily alleges that Coleman was given his letter of reprimand because of his race, but no factual allegations lend any plausibility to this claim either.
[3]  The notion that Broccolina's "outside business interests" might make him similarly situated to Coleman is also muddled by Coleman's allegation that Broccolina and Jones knew that the allegations of contract steering against Coleman were false.
[4]  Before Hibbs was decided, we held that Congress exceeded its authority in applying the FMLA to the States. See Lizzi v. Alexander, 255 F.3d 128, 134-36 (4th Cir.2001). Although Lizzi involved self-care leave, and thus would seem to be on point, the opinion's rationale was not specific to the self-care provision. Instead, it addressed congressional authority in more general terms, concluding that Congress "does not have the constitutional power to pass such a sweeping statute on the basis of [gender discrimination]." Id. at 135. That analysis is no longer valid in light of Hibbs.


441 F.Supp. 1121 (1977)
GARY W. et al.
v.
STATE OF LOUISIANA et al.
Civ. A. No. 74-2412.
United States District Court, E. D. Louisiana.
October 25, 1977.
As Amended October 31, 1977.
*1122 *1123 William E. Rittenberg, New Orleans, La., Stephen P. Berzon and Daniel Yohalem, Washington, D.C., for plaintiffs.
Carmack M. Blackmon, Baton Rouge, La., for State of Louisiana.
ALVIN B. RUBIN,[*] Circuit Judge:
The plaintiffs, who have obtained a final judgment for their attorneys' fees against the State of Louisiana, now seek to execute on that judgment. The state filed no appeal from the judgment, and concedes that it is final, but urges that the judgment is in effect uncollectible until the state chooses to pay it. Because the statute of the Congress that controls this action, adopted conformably to the Constitution, is the supreme law of the land, it is the duty of this court to enforce that law and to order the judgment satisfied.

I
On February 3, 1977, following extensive briefing and oral argument, this court ruled that the plaintiffs are entitled to attorneys' fees under the Civil Rights Attorneys' Fees Act of 1976, 90 Stat. 2641, 42 U.S.C.A. § 1988. Gary W. v. State of Louisiana, E.D.La.1977, 429 F.Supp. 711. On March 15, 1977, a judgment against the state defendants was entered in accordance with that opinion. Paragraphs 4 through 6[1] of that judgment ordered the Louisiana Department of Health and Human Resources (DHHR) to pay the plaintiffs' court costs and reasonable attorneys' fees.
The state defendants did not appeal the court's judgment. The time for appeal has long since passed. However, despite the plaintiffs' demands for payment, the state defendants have not complied with the judgment entered against them. The Louisiana State Legislature voted this summer not to appropriate funds sufficient to pay the plaintiffs' court costs and attorneys' fees as this court ordered over six months ago.
The state defendants now seek relief from the March 15 judgment, while the plaintiffs seek to enforce it.

II
The state defendants seek relief from judgment under Rule 60(b)(1), Fed.R. Civ.Proc., which permits a court to relieve a party of a final judgment against it on grounds of "mistake, inadvertence, surprise, or excusable neglect." The state takes the position that the court mistakenly, inadvertently, or by excusable neglect failed to consider the discretionary nature of attorneys' fees awarded under 42 U.S.C.A. § 1988.
When the issue was first presented in this court, the state did not offer in evidence any facts that would justify the denial of attorneys' fees to the plaintiff. It filed a brief contending that attorneys' fees should not be granted because the state defendants were not in bad faith. This had been the principle applied in Alyeska Pipeline Service Company v. The Wilderness Society, 1975, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141, but the Alyeska rule was changed by Congress when it enacted Public Law 94-559, amending 42 U.S.C.A. § 1988. The only other defenses asserted were the applicability of the Eleventh Amendment, the inapplicability of Public Law 94-559 because it was enacted after this suit was filed, and the claim that the attorneys' fees should be mitigated because the plaintiffs *1124 did not succeed in proving every issue they had raised initially. Those defenses were likewise discussed in the prior opinion. The state never contended, nor did it ever offer any evidence to show, that the court should, in the light of the principles embodied in Public Law 94-559, refuse to allow attorneys' fees. While the state now contends that the award of attorneys' fees was erroneous under the terms of that statute, it offers no evidence to support that conclusion.
The Fifth Circuit has recently announced the standard to guide discretion in awarding attorneys' fees under 42 U.S.C.A. § 1988. In Brown v. Culpepper, 5th Cir. 1977, 559 F.2d 274, the court said that a plaintiff in such an action, if successful, "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Brown, supra, 559 F.2d at 277. This was the rule adopted by the Supreme Court with respect to Title II of the Civil Rights Act of 1964, 78 Stat. 244, 42 U.S.C.A. § 2000a-3, in Newman v. Piggie Park Enterprises, 1968, 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263.
The state defendants have offered no evidence of special circumstances that would render the March 15 judgment unjust. Cf. Northcross v. Board of Ed. of the Memphis City Schools, 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973). The award was not predicated on a finding of bad faith. It was based on the thesis, since adopted in Brown, that Congress intended an award to be made unless there were special circumstances making the award unjust. Therefore, the defendants' motion for relief from judgment must be denied.

III
The next group of issues deals with the alleged procedural barriers to enforcement of the order. Faced with the state defendants' refusal to comply with the court's March 15 judgment, the plaintiffs have caused a writ of fieri facias to be issued to the United States Marshal for the Eastern District of Louisiana commanding him to seize the:
. . . rights and credits of the Louisiana Department of Health and Human Resources, particularly funds under the control of said Department deposited in the American Bank and Trust of Baton Rouge . . .
in an amount sufficient to satisfy that judgment. Plaintiffs now seek to execute that writ under Rule 69(a), Fed.R.Civ.Proc., by petitioning to make American Bank and Trust a garnishee in these proceedings; in the alternative, plaintiffs move for an order under Rule 70, Fed.R.Civ.Proc., directing the DHHR to pay the March 15 judgment, plus such additional fees and expenses as plaintiffs have incurred in securing compliance with that judgment. The state defendants, in turn, have moved to quash the writ.
The state defendants maintain that the plaintiffs are not entitled to execution under Rule 69(a), or to a Rule 70 order directing compliance with the March 15 judgment. The state's position is set forth in the following series of hypotheses:
1. The court cannot order the payment of a money judgment under Rule 70 because that rule concerns only the "performance of specific acts."
2. Consequently, any relief must be ordered under the terms of Rule 69.
3. Rule 69(a) provides that the procedure on execution or in aid of execution "shall be in accordance with the practice and procedure of the state in which the district court is held, . . . except any statute of the United States governs to the extent that it is applicable."
4. Because no federal statute prescribes a garnishment procedure, DHHR funds may be seized only in accordance with the "practice and procedure" of the State of Louisiana.
5. The "practice and procedure" of Louisiana includes art. XII, § 10(C) of the 1974 Constitution of the State of Louisiana, which provides:
The legislature shall provide a procedure for suits against the state, a state agency, or a political subdivision. It shall provide *1125 for the effect of a judgment, but no public funds shall be subject to seizure. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which judgment is rendered.
6. Because Louisiana law proscribes the seizure of public agency funds, relief cannot be awarded under Rule 69.
The court has parsed the state defendants' argument in detail because it is a delicately wrought chain of apparent logic that leads to an ineluctably wrong conclusion. The defendants would have the court read the Federal Rules of Civil Procedure in such fashion as to permit Louisiana or any other state to ignore a federal judgment against it merely by enacting a statute prohibiting the garnishment of state funds. If the State of Louisiana may be relieved from satisfying this judgment by a provision enacted in the past, albeit for a different purpose, and embedded in the Constitution, then any other state may achieve the same result.
The issue here is not one of judicial confrontation with the state. It is one of implementation of a Congressional mandate. Following the decision in Alyeska Pipeline Service Co. v. Wilderness Society, 1975, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141, the Congress might have chosen to take no legislative action. Or it might have decided to broaden the basis for an award of attorneys' fees against private litigants but not to permit their recovery from the states. Instead it chose to enact legislation granting the right to recover attorneys' fees against all litigants as a means of strengthening its efforts to protect individual rights under the powers conferred by Section 5 of the Fourteenth Amendment to the Constitution. When Congress determines to act pursuant to the powers conferred on it by the Fourteenth Amendment, its enactments take precedence over the laws of the states. Neither state law nor the Eleventh Amendment protects states from suits under such laws. Fitzpatrick v. Bitzer, 1976, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614.
Although Congress has spoken clearly, the state defendants in effect contend that a judgment against a state pursuant to the statutory command is merely hortatory, and the state may elect not to satisfy it. But the statutes of the Congress and the judgments of the federal courts enforcing them are not precatory. They are, as the Constitution declares, the supreme law of the land. U.S.Const. art. VI.
The Fifth Circuit has recently upheld an order issued under Rule 70 that directed state defendants to pay a money judgment. In Gates v. Collier, 5th Cir., 1977, 559 F.2d 241, the court directed the payment of attorneys' fees to successful plaintiffs under 42 U.S.C.A. § 1988, the statute involved here. This is a recent, fully considered construction. This trial court would be bound by that interpretation even were its views different. Gates is authority both for the award of attorneys' fees against the state, and for the propriety of using Rule 70 for such a monetary allowance.
The same procedure was approved in Gilbert v. Johnson, 5th Cir. 1974, 490 F.2d 827, where the court held that the plaintiff properly sought monetary relief for unlawful dismissal from his position with a Veterans Administration Hospital under Rule 70. Cf., Finney v. Hutto, 8th Cir. 1977, 548 F.2d 740. These cases indicate that Rule 70 may be used as a means to collect a money judgment rendered in an equitable proceeding. Consequently, the relief the plaintiffs seek is permissible under Rule 70.
The difficult problems of construing Rule 69 need not be faced because relief is available under Rule 70. However, perhaps supererogatorily, those problems will be discussed so that the appellate court will have my views before it should that court reach the issue. Rule 69(a) provides, in part:
The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the *1126 state in which the district court is held, . . . except that any statute of the United States governs to the extent that it is applicable.
The defendants correctly insist that the state "practice and procedure" to which Rule 69(a) refers includes state exceptions of particular property from execution, such as Louisiana's constitutional proscription against the seizure of public funds. La. Const. art. XII, § 10(c). But if a federal statute is applicable, federal statutory exemptions govern execution practice, Drafter's Committee Note of 1937 to Rule 69(a), 7 Moore's Federal Practice ¶ 69.01[2] (2d Ed. 1975). It would be anomalous to interpret the rule so that an applicable federal statute imports the federal exemptions of property from execution, while the state "practice and procedure" referred to in the same sentence does not include the protection of state exemptions. Cf., United States v. Miller, 3d Cir. 1956, 229 F.2d 839.
If the plaintiff relies on the state procedure, the state exemption is applicable. On the other hand, if the provisions of 42 U.S. C.A. § 1988 are applicable, then that "statute of the United States governs." It is literally true that § 1988 says nothing about the means of collecting the attorneys' fees it authorizes. Further, those federal statutes cited by the 1937 committee as controlling under Rule 69 speak of execution directly, while § 1988 does not.
However, a remedial statute should not be read as if it were a lexicon for scriveners. "The duty of ascertaining [an enacted law's] meaning is difficult enough at best, and one certain way of missing it is by reading it literally . . .." Address by Judge Learned Hand, April 10, 1959, in Leflar, Appellate Judicial Opinions 73 (1974). While § 1988 does not mention the method of its enforcement, the origin and purpose of the 1976 amendment suggest that Congress intended both to create the entitlement to the fees and to provide a means of enforcing this remedy. The statute was adopted to provide attorneys' fees in situations where they were not available under the Alyeska rule. It was intended to apply to states and state officials. And it was intended to be effective against them, not to be hortatory. The Senate report recites:
As with the cases brought under 20 U.S.C. § 1617, the Emergency School Aid Act of 1972, defendants in these cases are often State or local bodies or State or local officials. In such cases it is intended that the attorneys' fees, like other items of costs, will be collected either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party).

S.Rep. No. 94-1011, 94th Cong., 2d Sess. (1976), U.S.Code Cong. & Admin.News, 1976, pp. 5908, 5913. (Emphasis added.) Within the last month, the Fifth Circuit has twice held that judicial interpretation of § 1988 is to be guided by this passage. Gates, supra, at 243; Universal Amusement Company v. Vance, 5th Cir. 1977, 559 F.2d 1286, at 1301 & n. 36. See also, Finney v. Hutto, 8th Cir. 1977, 548 F.2d 740, 742. The evident purpose of the statute compels us to construe § 1988, not state procedure, as being applicable for purposes of Rule 69.
This conclusion is buttressed by the history of Rule 69. That rule was originally drafted to follow 28 U.S.C. § 729 (1940), a statutory predecessor to 42 U.S.C. § 1988. 7 Moore's Federal Practice ¶ 69.01[2] (2d Ed. 1975). At that time § 1988 said nothing about attorneys' fees but provided merely:
The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes *1127 of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.
It then specifically contemplated that state and federal law would play complementary roles in securing civil rights. It is reasonable to believe that, in amending § 1988, Congress intended to alter those respective roles, and to give extra encouragement to plaintiffs who seek to enforce civil rights in federal courts. Congress thus gave further emphasis to the federal interest in civil rights enforcement. The same federal interest that led to the creation of the right must extend to an adequate means of enforcing it. Construing Rule 69 to permit the recovery of attorneys' fees against states notwithstanding a state proscription against the seizure of public funds is consistent with that interpretation.
Conversely, state procedure was held to govern federal execution of judgments in cases where there was no significant federal interest in the remedy. In Yazell v. United States, 1966, 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d 404 aff'g, United States v. Yazell, 5th Cir. 1964, 334 F.2d 454, the Supreme Court held that the law of coverture in Texas precluded the United States from collecting on a Small Business Administration disaster loan from the separate property of the debtor wife. The court said:
We do not here consider the question of the constitutional power of Congress to override state law in these circumstances by direct legislation . . .. We decide only that this Court, in the absence of specific congressional action, should not decree in this situation that implementation of federal interests requires overriding the particular state rule involved here.
382 U.S. at 352, 86 S.Ct. at 506.
Here, however, Congress has acted. Cf., Huddleston v. Dwyer, 1944, 322 U.S. 232, 64 S.Ct. 1015, 88 L.Ed. 1246 holding that state law controls the question whether a county must levy a tax to pay off bonds on a cause of action arising under state law.
The plaintiffs have stated in oral argument that they have no preference with respect to the type of relief granted, while the state defendants have stated that, if relief is to be granted, they would prefer an order issue pursuant to Rule 70.
State defendants were given an opportunity, even after these motions were heard, to suggest a manner in which they would satisfy the judgment. But they have not offered any kind of compliance with the judgment, direct or indirect, soon or after an interval. This court would not be fulfilling its duty if it failed to enforce the constitutional statutes of the Congress. Pursuant to that duty, it grants the plaintiffs the relief they seek in accordance with the procedure set forth in Rule 70.

IV
In accordance with this opinion, an order shall issue directing state defendants to pay plaintiffs' attorneys from DHHR funds those fees and costs specified in the March 15, 1977 judgment, plus interest.
In addition, the plaintiffs seek attorneys' fees and costs to compensate them for the present action to enforce the March 15 judgment. The Fifth Circuit Court of Appeals has not decided whether such relief is available on facts such as those before the court. The Court of Appeals has, however, held that an award of attorneys' fees under Title II of the Civil Rights Act of 1964, supra, may include compensation for the defense of an appeal on the propriety of attorneys' fees. Miller v. Amusement Enterprises, 5th Cir. 1970, 426 F.2d 534, 539. The state defendants here have contested the plaintiffs' right to attorneys' fees through resistance, rather than appeal. The cost of overcoming that resistance, like the cost of defending an appeal successfully, *1128 is rightly compensable under 42 U.S.C.A. § 1988, the terms of which are identical to the provisions regarding attorneys' fees in Title II.
The parties have stipulated that, if this amount is recoverable, the sum due is $2,322.00 to the Children's Defense Fund, and $1,000.00 to William Rittenberg. These amounts will be added to the judgment.
NOTES
[*]   Sitting as District Judge by designation of Chief Judge John R. Brown.
[1]  Paragraphs 4 through 6 read as follows:

4. The Department of Health and Human Resources shall pay the Children's Defense Fund of the Washington Research Project $174,519.88 for attorneys' fees and litigation expenses incurred through December 22, 1976, together with interest at the legal rate from date of Judgment.
5. The Department of Health and Human Resources shall pay William Rittenberg $30,397 for attorney's fees incurred through December 22, 1976, together with interest at the legal rate from date of Judgment.
6. The Department of Health and Human Resources shall pay the court costs of plaintiffs and plaintiff-intervenor as taxed by the clerk of the court.


991 F.2d 810
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Daniel G. AQUILINO, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 92-3631.
United States Court of Appeals, Federal Circuit.
March 12, 1993.

Before ARCHER, Circuit Judge, COWEN, Senior Circuit Judge, and MICHEL, Circuit Judge.
PER CURIAM.

1
Daniel G. Aquilino petitions for review of the decision of the Merit Systems Protection Board, which we affirm on the basis of the Administrative Judge's (AJ) opinion.   See Docket No. DC0831920408-I-1 (July 17, 1992).

2
Mr. Aquilino argues to this court that the current statutory provision regarding the required deposit for electing a survivor annuity when the annuitant has married after retirement is inequitable and that the Office of Personnel Management failed to inform him when this current legislation was pending.   As the AJ's decision noted, there was no statutory or regulatory requirement mandating that OPM inform retired annuitants, such as Mr. Aquilino, of the pendency of this legislation.   Further, any perceived inequity in the current statute is a matter for the Congress, and cannot be rectified by the OPM, the MSPB or this court.


                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-3415
                                     ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
            v.                         * District Court for the
                                       * District of Minnesota.
Pedro Sera,                            *
                                       *
            Defendant - Appellant.     *
                                  ___________

                              Submitted: June 14, 2001
                                  Filed: September 24, 2001
                                   ___________

Before MURPHY, HEANEY, and BEAM, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

        Pedro Sera, a Mexican national, was sentenced to 70 months after pleading
guilty to one count of conspiracy to distribute and possess with intent to distribute 448
grams of methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846. Sera
later filed this petition to vacate, set aside, or modify his sentence under 28 U.S.C. §
2255. The district court1 denied the petition but issued a certificate of appealability
on whether Sera's counsel had been ineffective for not moving for a downward

      1
       The Honorable Paul A. Magnuson, Chief Judge for the United States District
Court for the District of Minnesota.
departure on the basis of his willingness to waive resistance to deportation and his
status as a deportable alien. We affirm.

      Sera entered into a plea agreement in which he acknowledged he had sold a
pound or 453.6 grams of methamphetamine. The government indicated in the
agreement that it would seek to hold him responsible for an additional 37 ounces or
1049 grams. The agreement also contemplated a criminal history category of I and a
three level reduction for acceptance of responsibility. The presentence report
recommended that Sera be held accountable for a total of 1245.8 grams, which would
have involved a 10 year mandatory minimum under 21 U.S.C. § 841(b)(1)(A).

        Sera objected to the presentence report, arguing that there was only evidence to
tie him to 448 grams and a lesser mandatory minimum of five years under 21 U.S.C.
§ 841(b)(1)(B). The court conducted an evidentiary hearing at which a narcotics agent
testified that a cooperating defendant had helped him purchase a pound of
methamphetamine from Sera. The agent also testified that the same cooperating
individual had told him that he had bought approximately 37 ounces from Sera during
the previous four months. On cross examination of the agent, Sera's counsel brought
out the fact that no physical evidence linked his client to these 37 ounces.

       The court found that 448 grams of methamphetamine should be attributed to Sera
and assigned him a base offense level of 30 under U.S. SENTENCING GUIDELINES
MANUAL (U.S.S.G.) § 2D1.1(5). It then applied a three level reduction for acceptance
of responsibility and reached an adjusted offense level of 27. Together with a criminal
history category of I, this led to a sentencing range of 70 - 87 months. See id. at §5A.
The court sentenced him to 70 months.

      Sera argues he is entitled to resentencing because his counsel was ineffective in
not moving for a downward departure based on his willingness to waive resistance to
deportation and the effect on his sentence of being a deportable alien. Sera does not

                                          -2-
say in what ways his sentence would be more severe because of his status, but it is
possible he has in mind such potential factors as not being eligible for a minimum
security institution, certain prison programs, or transitional release to community
confinement. Sera argues that failure to seek a departure on these grounds was below
the standard of a reasonable criminal defense attorney and that he was prejudiced
because the motion could have succeeded if made. The government responds that Sera
is not entitled to resentencing because his counsel made a strategic decision to
concentrate on reducing the quantity of methamphetamine for which his client would
be held responsible. It also says that he cannot show prejudice because it was within
the court's discretion to grant a departure, the Bureau of Prisons has discretion over
conditions of confinement, and his sentence was within the 57 - 71 month range that
would have resulted from a successful motion.

       To succeed on an ineffective assistance of counsel claim, a petitioner must show
that counsel's performance was deficient and that the deficient performance prejudiced
the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney's
performance is deficient if it "fell below an objective standard of reasonableness." Id.
at 687-88. In evaluating an attorney's performance, a court must begin with "a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance" because individual criminal defense attorneys might employ
different trial strategies. See id. at 689. Courts should avoid "the distorting effects of
hindsight" and try to evaluate counsel's conduct by looking at the circumstances as
they must have appeared to counsel at the time. Id. The burden is on the petitioner
to show that counsel's representation was not within the range of sound defense
strategy. See id. at 690. Most ineffective counsel claims turn on their facts rather than
on any bright line rule. See Payne v. United States, 78 F.3d 343, 348 (8th Cir. 1996).

       Sera has not shown that effective counsel must have moved for a departure based
on his willingness to waive deportation or his status as a deportable alien. In this
circuit a sentencing court may grant a downward departure under U.S.S.G. § 5K2.0 for

                                           -3-
a defendant's willingness to waive resistance to deportation, see United States v. Cruz-
Ochoa, 85 F.3d 325, 325-26 (8th Cir. 1996), but the decision to depart or not is soundly
within the district court's discretion. See United States v. Hernandez-Reyes, 114 F.3d
800, 803 (8th Cir. 1997). This court has not yet decided whether the effect on
incarceration of being a deportable alien can warrant a downward departure in a drug
conspiracy case, but it has recently held that deportable alien status cannot be a basis
for downward departure in an illegal reentry case. See United States v. Cardosa-
Rodriguez, 241 F.3d 613, 614 n.2 (8th Cir. 2001) (reserving the question whether it
could be a departure basis in other types of cases). Many courts dealing with
nonimmigration convictions have held that the consequences of deportable alien status
are not valid bases for downward departure. See United States v. Bautista, 258 F.3d
602, 606-08 (7th Cir. 2001); United States v. Charry Cubillos, 91 F.3d 1342, 1344-45
(9th Cir. 1996); United States v. Nnanna, 7 F.3d 420, 422 (5th Cir. 1993) (per curiam);
United States v. Restrepo, 999 F.2d 640, 644-47 (2d Cir. 1993); United States v.
Alvarez-Cardenas, 902 F.2d 734, 737 (9th Cir. 1990). See also United States v.
Leandre, 132 F.3d 796, 808 (D.C. Cir. 1998) (no error to deny departure based on
deportable alien status); United States v. Veloza, 83 F.3d 380, 382 (11th Cir. 1996)
(same). Failure to move for a downward departure on these bases cannot be said to be
outside the broad range of reasonable assistance in this case where counsel chose to
pursue a successful alternate strategy at sentencing and § 2255 counsel has not even
identified what factors related to Sera's status might support such a departure.

      Sera's counsel was successful in obtaining a significant reduction in his sentence
by concentrating on disputed factual issues related to drug quantity. If Sera had been
found responsible for all the drugs which the government attributed to him, the court
would have been required to sentence him to at least ten years. By successfully
persuading the court that Sera should be held responsible for only 448 grams, counsel
reduced the mandatory minimum exposure to five years. By negotiating a three level
reduction for acceptance of responsibility and reducing the mandatory minimum,
counsel obtained a 50 month reduction in Sera's sentence. Counsel would have had to

                                          -4-
request departures related to his status during the same hearing at which he successfully
challenged drug quantity. We cannot say that it was not sound strategy to avoid the
risk of diverting the court's focus from drug quantity. Counsel achieved a favorable
result with his strategy. Moreover, the court would have had discretion whether or not
to grant any such departure motion, and its comments at sentencing suggest that it had
taken account of all factors to fashion a favorable sentence in light of all the
circumstances.2

      Since Sera has not shown that his counsel's performance was deficient or that it
prejudiced him, we affirm the judgment of the district court.

       A true copy.

              ATTEST:

                      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

       2
       The court referred to Sera's status as a deportable alien in explaining its
sentence after finding him responsible only for a drug quantity insufficient to reach the
ten year mandatory minimum level:

       Mr. Sera, there is one other additional factor that the Court does not take
       into consideration . . . . I am mindful . . . at the time you complete your
       incarceration, you will be deported to your home country. The reality is,
       prior to that deportation, you will be incarcerated. And if I had taken all
       of this into consideration, I would have had to give you another four years
       of imprisonment.

(Sent. Tr. at 28).

                                          -5-


249 S.W.3d 293 (2008)
Caren BRASWELL, Plaintiff-Respondent,
v.
MISSOURI STATE HIGHWAY PATROL, Defendant-Appellant, and
Treasurer of the State of Missouri, as Custodian for the Second Injury Fund, Defendant-Respondent.
No. 28465.
Missouri Court of Appeals, Southern District, Division Two.
April 14, 2008.
*296 Mary O. Thompson, Springfield, for Appellant.
William W. Francis, Jr., Ryan E. Murphy, Springfield, for Respondent.
NANCY STEFFEN RAHMEYER, Judge.
The Missouri State Highway Patrol ("Employer") appeals the grant of temporary benefits to Caren Braswell ("Employee"), as a result of injury incurred while Employee was on duty as a trooper for Employer. Employer makes two claims of error, first:
The Commission erred in allowing Employee to escape the requirements of § 287.120.8 RSMo (1992) on appeal from the ALJ's ruling, because in so doing, the Commission allowed Employee to mislead and surprise Employer by pleading one theory of compensability and recovering under another, in that the theory of compensability Employee advanced in the Claim for Compensation and at the Hardship Hearing was based on extraordinary and unusual stress under § 287.120.8 RSMo (1992).[[1]]
Employer's second point of error contends:
The Commission erred in reversing the ALJ's ruling because the finding that Employee's mental injury was caused by the tasing incident on February 1, 2004, is against the overwhelming weight of the evidence, in that the evidence, taken as a whole, does not support this finding of causation.
Mindful that this is an appeal from a temporary award, we find that neither of Employer's points state a claim of error which this Court can review; thus, we dismiss the appeal.
Employer's first claim of error takes issue with the process followed by the Labor and Industrial Relations Commission ("the Commission") in reviewing the ruling of the Administrative Law Judge ("ALJ"). Specifically, Employer argues that the pleading's, Employee's Claim for Compensation's, "original and exclusive theory of recovery at the Hardship Hearing was under the statute governing work stress claims  § 287.120.8 RSMo (1992)." Employer states that Employee's trial brief used "specific terms of art taken directly from § 287.120.8"; Employer supports its complaint with cites to trial testimony concerning the "unusual," "extraordinary," and "stressful" events which led to the claim for workers' compensation benefits. Employer claims "surprise" by Employee's abandonment of its theory on appeal to the Commission. Employer further states that Employee changed her theory of compensability, "in effect attempting *297 to amend the Claim after the close of the evidence" and further complains that the Commission "chose not to address this issue." Employer misunderstands our standard of review.[2]
With few exceptions, our review is of the final award of the Commission, and not that of the ALJ. Section 287.495.1; Muller v. St. Louis Housing Authority, 175 S.W.3d 191, 194 (Mo.App. E.D.2005). The only record reviewed by this Court is that which is certified by the Commission as containing all documents and papers in its file concerning the claim being reviewed. Miller v. Penmac Personnel Services, Inc., 68 S.W.3d 574, 578 (Mo.App. S.D. 2002).[3] If, as here, the award of the Commission attaches and incorporates an award and decision of the ALJ, we may consider the findings, but only so far as they are consistent with the decision of the Commission. Booth v. Trailiner Corp., 21 S.W.3d 869, 871 (Mo.App. S.D.2000). Appellate review of a final award of the Commission is directed to questions of law. Section 287.495.1.[4] An award of the Commission must be affirmed if the evidentiary record contains sufficient competent evidence to support the award. Id. The whole record is considered to determine if there is sufficient competent and substantial evidence to support the award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). Furthermore, "[w]e accord the [C]ommission the same deference that is due to the court's judgment in a non-jury trial and are obliged to affirm if there is basis in the record for the decision." Parker v. Springfield Ry. Services/Anheuser-Busch, Inc., 897 S.W.2d 103, 108 (Mo.App. S.D. 1995).
In addition to our limited standard of review, we have further restraints on our ability to review decisions of the Commission. As noted, this is a review of an award from a hardship hearing. In a workers' compensation case, this Court has no appellate jurisdiction except as expressly conferred by statute. Id.
Section 287.495 authorizes an appeal from the "final award of the [C]ommission" to the appellate court. "A `final award' is one which disposes of the entire controversy between the parties." Hillenburg v. Lester E. Cox Medical Center, 879 S.W.2d 652, 655 (Mo.App. S.D.1994).[] "An order lacks finality where it remains tentative, provisional, contingent, subject to recall, revision or reconsideration by the issuing agency." Id. at 655 (citing Lewis v. Container Port Group, 872 S.W.2d 134, 136 (Mo. App. E.D.1994); Blanford v. Robinett's Motor & Truck Serv., Inc., 865 S.W.2d 874, 876 (Mo.App. E.D.1993)). "No appeal lies from a temporary or partial award" made pursuant to section *298 287.510. Hillenburg, 879 S.W.2d at 655-56.
Alcorn v. McAninch Corp., 236 S.W.3d 111, 114 (Mo.App. S.D.2007). Without jurisdiction, an appeal must be dismissed. Muller, 175 S.W.3d at 193. We have a duty to determine sua sponte whether we have jurisdiction to hear an appeal. Id.
As we further noted in Alcorn, there are two exceptions to the rule that temporary awards are unreviewable:
First, where an award designated "temporary and partial" is not entered pursuant to section 287.510 but is an award of permanent total disability pursuant to section 287.200.2. Abrams v. Ohio Pac. Express, 819 S.W.2d 338, 343 (Mo. banc 1991); Smith v. Ozark Lead Co., 741 S.W.2d 802, 808-10 (Mo.App. S.D. 1987).
Alcorn, 236 S.W.3d at 114-15. That exception is not at issue in this case. The second judicially-created exception allows for a limited review where an employer claims it is not liable for paying any compensation and is disputing all liability. See e.g., Woodburn v. May Distrib. Co., 815 S.W.2d 477, 480 (Mo.App. S.D. 1991); Hillenburg, 879 S.W.2d at 656; Stufflebean v. Crete Carrier Corp., 895 S.W.2d 115, 116 (Mo.App. W.D. 1995). Thus, it has been stated, "a court can review the issues on which liability turns, such as notice or whether an employee's injuries are work-related." See generally Korte v. Fry-Wagner Moving & Storage Co., 922 S.W.2d 395, 398 (Mo.App. E.D. 1996) (internal citations omitted); Hillenburg, 879 S.W.2d at 656; Eubanks v. Poindexter Mechanical Plumbing & Heating, 901 S.W.2d 246, 247 (Mo.App. S.D. 1995).
Id. at 115.
In support of its first point, Employer cites a case in which the appellate court affirmed an award in favor of an injured worker for permanent total disability and nursing services. See Groce v. Pyle, 315 S.W.2d 482 (Mo.App.K.C.1958). Employer cites Groce for the general proposition that "[a] sense of fairness and understanding requires that not only an employer but also the Commission be advised of the nature of the employee's claim." Id. at 492-93. First, the quote from Groce does not assist Employer. Before us is an appeal from a hardship hearing, not the final award as in Groce. Second, Employer does not contend that the Commission was misled; it complains that the ALJ was confused by Employee's pleadings. Groce is not on point.
In this case, the Commission specifically noted: "The [ALJ] denied benefits by applying the provisions of section 287.120.8 RSMo, to conclude that [E]mployee did not sustain an injury due to an accident arising out of and in the course of her employment." The Commission then analyzed section 287.120.8 and stated that it did not apply in a case involving a mental injury arising from a traumatic event and that Employee's claim was based upon an incident that occurred on February 1, 2004. Thus, the Commission determined that "[i]f [E]mployee's claim of mental injury can be proven to be based upon the traumatic [event], and not from work[-]related stress, the compensability of [E]mployee's claim must be determined under section 287.120.1." Thus, the Commission determined that the ALJ was wrong in its legal analysis on an issue raised by Employee in her petition for review and on Employee's original claim. Employer is not challenging any liability for benefits in its first point; it is challenging the administrative process the Commission used to reach its conclusions of law. Such a claim of error in this award for temporary benefits is unreviewable by this Court and we have no jurisdiction to review the claim. Point I is dismissed.
*299 Likewise, Employer's second point is unreviewable. Employer contends that the finding that Employee's mental injury was caused by an incident on February 1, 2004, is against the overwhelming weight of the evidence in that the evidence, taken as a whole, does not support a finding of causation. The point violates Rule 84.04(d)(2)(C) because it fails to "explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." When briefs are not in conformity with the applicable rules, they do not sufficiently advise the courts of the meritorious issues presented. Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978). This Court is then forced to decide a case based on inadequate briefing and is asked to take on an advocacy role by "undertaking additional research and briefing to supply the deficiency." Id. This is a role this Court will not assume.
While Employer may raise the issue that it is denying all liability, thus providing jurisdiction for review, "`[a]rguments raised in the points relied on which are not supported by argument in the argument portion of the brief are deemed abandoned and present nothing for appellate review.'" State ex rel. Greene County v. Barnett, 231 S.W.3d 854, 857-58 (Mo. App. S.D.2007) (quoting Luft v. Schoenhoff, 935 S.W.2d 685, 687 (Mo.App. E.D. 1996)). The error in the point relied on and the reliance on its argument in the brief are particularly troubling in this case because Employer's argument fails to flush out the factual basis for Employer's claim that the overwhelming weight of the evidence as a whole does not support a finding of causation and it is further contradicted by Employer's claim in its first point. Employer argued it was prejudiced in its first point in that "[i]n preparation for the Hardship Hearing, counsel for Employer made a strategic decision not to hire an expert witness to refute medical causation," yet in its second point Employer contends the decision on medical causation was against the overwhelming weight of the evidence. To support that contention, Employer relies upon "a common sense determination" about the cause of Employee's current mental condition.
The Commission rejected Employer's "common sense" argument, specifically noting:
[t]he Commission does not agree with the contention of [E]mployer that even a lay person unfamiliar with medical intricacies could see that Employee's mental stress disorder was not caused by the tasing incident of February 1, 2004. In order to make such a finding, the Commission would need to disregard and ignore testimony from three experts in the field, and the Commission's opinion would be based on mere personal conjecture unsupported by competent evidence.
The Commission further stated, "[c]learly[,] medical causation concerning a medical condition such as post-traumatic stress disorder and major depression are not within common knowledge or experience of lay people, and such mental disorders must be established by scientific or medical evidence showing a cause and effect relationship, or lack thereof." The Commission is correct that it could not rely on personal conjecture unsupported by competent evidence. Houston v. Roadway Express, Inc., 133 S.W.3d 173, 179 (Mo. App. S.D.2004).
Finally, in support of its "argument," Employer failed to cite one single case where "common sense" was sufficient to overcome the testimony of three experts on the issue of causation. "`If a party fails to support a contention with relevant authority or argument beyond conclusions, *300 the point is considered abandoned.'" Barnett, 231 S.W.3d at 858 (quoting Luft, 935 S.W.2d at 687). As noted, the Commission explicitly rejected Employer's claim that common sense could overcome the experts' opinions on causation and yet Employer persists in its argument in this Court. While it is somewhat baffling that Employer would pursue the same legal argument with no legal support in this Court that it did unsuccessfully with the Commission, our immediate concern is whether Employer's claim should be reviewed at all.
As we noted in Alcorn, a narrow, judicially-created exception to the need for a final judgment has been cited. In such a situation, we must commit some inquiry into the facts of a case in order to determine whether jurisdiction exists despite the facial denial of any liability by the employer on appeal. Where an order lacks finality, "it remains tentative, provisional, contingent, subject to recall, revision or reconsideration" and this Court has no jurisdiction to hear such an appeal. Hillenburg, 879 S.W.2d at 655.
Alcorn, 236 S.W.3d at 117.
This Court has indicated in the past that we have jurisdiction to review cases in which the employer challenges all liability; however, as we noted in Alcorn, although the exception is generally stated, the cases have dismissed the appeal or affirmed the temporary judgment. Id. at 118 n. 6. In Marrone v. Modine Heat and Transfer, 918 S.W.2d 315 (Mo.App. S.D.1996), this Court reviewed appellate decisions allowing a limited review of liability in an appeal from a hardship hearing. Id. at 317-18. We noted, "[a]lthough [the review of liability in a temporary or partial award of workers' compensation benefits] goes beyond the Supreme Court's holding in Abrams, 819 S.W.2d 338, we note the Supreme Court denied applications for transfer in Hillenburg, 879 S.W.2d 652, and Stufflebean, 895 S.W.2d 115.[[5]]" Id. at 318. In this appeal, we continue to voice our skepticism of our jurisdiction to review the appeals from temporary orders without any statutory authority to do so. The policy reasons for such a review may be sound, but the legislature has not created an exception for review from a hardship hearing.
In any event, given the record before us, we find it inappropriate to expand a judicially-created exception of the need for a final judgment in this case where (1) the point relied on does not comply with Rule 84.04 in that it fails to "explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error," (2) the argument gives absolutely no indication of what evidence supports its claim that an examination of the record does not support causation but instead relies on "common sense," and (3) Employer provides no law to support its claim that the trier of fact may use "common sense" as sufficient evidence to rebut the evidence proffered by three experts. We decline to exercise our discretion, if we have any, to review Employer's second point. The appeal is dismissed.
LYNCH, C.J., BURRELL, J., concur.
NOTES
[1]  All references to statutes are to RSMo 2000, unless otherwise specified. All rule references are to Missouri Court Rules (2007), unless otherwise specified.
[2]  Employer actually failed to even state the standard of review in its brief per Rule 84.04(e). Perhaps a review of that standard of review would have alerted Employer to the deficient claim of error.
[3]  We note several cases overruled by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). To the extent they are in conflict with the holding therein, they are cited in support of principles of law not affected by the Hampton ruling. Id. at 224-32.
[4]  Section 287.495 states in pertinent part,

The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
(1) That the [C]ommission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(3) That the facts found by the [C]ommission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.
[5]  No application for transfer was made in Woodburn, 815 S.W.2d 477, or Smith v. Fabricated Metal Products, 883 S.W.2d 537 (Mo. App. E.D.1994).


                                                                 [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 10-14660            ELEVENTH CIRCUIT
                                                                      OCTOBER 19, 2011
                                        Non-Argument Calendar
                                      ________________________           JOHN LEY
                                                                          CLERK

                          D.C. Docket No. 8:09-cr-00478-VMC-MAP-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff-Appellee,

                                                versus

DENZIL JACKSON,
a.k.a. Jacko,

llllllllllllllllllllllllllllllllllllllll                         Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (October 19, 2011)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

         A Middle District of Florida jury found Denzil Jackson guilty of conspiracy
to distribute marijuana, in violation of 21 U.S.C. § 846, from, according to the

indictment, “at least in 2006, through . . . June 12, 2008.” And the district court,

after determining that the Sentencing Guidelines called for a prison sentence of

between 235 and 293 months, sentenced him to a term of 235 months. He now

appeals his conviction and sentence.

       Jackson challenges his conviction on two grounds. The first is based on

questions the prosecutor put to Lisa Reid during the Government’s case in chief.

Her testimony established that Jackson and co-conspirator Shorter had been

involved in marijuana trafficking in New York. Jackson contends that the

questions were improper, that the prosecutor engaged in prosecutorial misconduct.

He did not object to the questions, however, nor did he move the court post-

verdict for a new trial. Instead, he asks us to grant him a new trial on the ground

that the district court somehow committed plain error.

       Jackson cites no case that would have informed the district court during the

questioning that it interrupt the prosecutor’s questioning and declare a mistrial1 or

post-verdict that it should sua sponte set aside the jury’s verdict and grant a new

trial. This argument for reversal therefore fails.

       1
          Had the court declared a mistrial—on the ground of prosecutorial misconduct—the
legal effect of its action would have been to acquit Jackson.

                                              2
      The second ground for reversal is based on questions the prosecutor put to

Jackson when he took the stand to testify in his own defense. Prior to trial, the

Government served him with a contingent subpoena requiring him to provide it

with his business records if he decided to testify at trial. He testified but failed to

produce his records. On direct examination, he testified that he had kept business

records for Jackson Security and had filed federal income tax returns. He said that

the business records consisted solely of bank statements, which showed

expenditures made using the company’s credit card.

      On cross-examination, the prosecutor asked him what other records he had

to show that Jackson Security was a legitimate business. He said that his bank

statements constituted all of the company’s business records; he had no other

documents evidencing the company’s expenditures. He admitted that he had not

brought his income tax returns with him—though they had been subpoenaed. The

prosecutor asked him why he had violated the subpoena, and Jackson’s counsel

objected, contending that the question was “burden shifting,” that the Government,

itself, could have obtained the tax returns. The court overruled the objection,

stating that it was “a legitimate line of questioning.” Then, in response to the

question, “So, you just didn’t bring your tax returns to court today?”, Jackson said:

“I didn’t know that I ha[d] to bring them to court today.”

                                           3
      We find no error in this line of questioning. Jackson testified on direct

examination that he had gone from making deliveries for UPS to owning a security

company, Jackson Security, that he had provided legitimate services for co-

conspirator Mitchell through the company, and that the deposits into the

company’s bank account had represented his salary and expenses for the services

that he had provided. The Government was therefore entitled on

cross-examination to call into question the plausibility of Jackson’s story. The

prosecutor’s questions were intended to show that, through the lack of business

records, Jackson Security was merely a front, not a legitimate business. In sum,

nothing in the challenged questioning even implied that Jackson had to produce

his business records to prove his innocence. And both the prosecutor and the

court reminded the jury that the Government, not Jackson, had the burden of

proving his guilt.

      Jackson challenges his sentence as substantively unreasonable because it

was based, at least in part, on his decision to exercise his constitutional right to a

jury trial. He contends that this improper basis was further demonstrated, during

sentencing, by the district court’s repeated references to his perjured testimony.

He acknowledges that pleading guilty is beneficial for a defendant at sentencing.

However, the discrepancy between his sentence and those received by the co-

                                           4
conspirators who did plead is greater than that suggested by the acceptance-of-

responsibility offense level reduction and reflects instead the court’s decision to

punish him for going to trial. Lastly, the court ignored the evidence he presented

in mitigation and sentenced him with only deterrence and punishment in mind.

      We review the substantive reasonableness of a sentence under a deferential

abuse-of-discretion standard. United States v. Irey, 612 F.3d 1160, 1188 (11th

Cir. 2010) (en banc), cert. denied, 131 S.Ct. 1813 (2011). The court abuses its

discretion by failing to consider relevant factors that were due significant weight,

giving significant weight to an improper or irrelevant factor, or committing a clear

error of judgment in considering or weighing the proper factors. Id. at 1189.

However, a district court does not abuse its discretion when it merely attaches

“great weight” to a single, permissible factor or set of factors. Gall v. United

States, 552 U.S. 38, 56-59, 128 S.Ct. 586, 600-02, 169 L.Ed.2d 445 (2007).

When conducting this review, we must take into account the totality of the facts

and circumstances. Id. at 51, 128 S.Ct. at 597. Although a sentence within the

Guidelines sentencing range is not presumed to be reasonable, we expect that such

a sentence ordinarily will be reasonable. United States v. Hunt, 526 F.3d 739, 746

(11th Cir. 2008).

      Section 3553(a) provides that the district court must consider “the need to

                                          5
avoid unwarranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). For the

purposes of evaluating whether an unwarranted sentencing disparity exists, we

have held that defendants who have pled guilty and cooperated with the

Government are not similarly situated to those who proceed to trial and do not

provide assistance. United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir.

2009), cert denied, 130 S.Ct. 2342 (2010). This remains the case even where the

sentence received by the cooperating defendants is “substantially shorter.” Id.

      Jackson’s sentence is substantively reasonable, as the district court

acknowledged that Jackson had a constitutional right to proceed to trial, and

considered his taking the stand and presenting dishonest testimony in the context

of refusing to grant him a downward variance, not as a reason for increasing his

sentence. Thus, the court did not abuse its discretion by giving significant weight

to an improper factor. See Irey, 612 F.3d at 1189. Moreover, in comparing

Jackson to the co-conspirators who had pled guilty, it was reasonable for the court

to find that the co-conspirators were not similarly situated to Jackson and that no

unwarranted disparity would be created by refusing to grant the requested

downward variance, even though the difference in sentences was substantial. See

Docampo, 573 F.3d at 1101. Otherwise, the court properly weighed the § 3553(a)

                                          6
factors, clearly taking account of Jackson’s history and characteristics, including

his past as a “law-abiding citizen,” but ultimately finding that the seriousness of

the offense weighed most heavily in its sentencing calculation. 18 U.S.C.

§§ 3553(a)(1), (2)(A). Moreover, placing particular emphasis on a single

permissible § 3553(a) factor does not represent an abuse of discretion. See Gall,

552 U.S. at 56-59, 128 S.Ct. at 600-02.

      AFFIRMED.

                                          7