CLD-248                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 10-4193
                                  ___________

     TOMMIE H. TELFAIR; CATRINA R. GATLING, Associated Aggrieved,

                                        v.

   OFFICE OF THE U.S. ATTORNEY, Agent(s) for the Government, and Defense
                            Counselor(s)

                              Tommie H. Telfair,
                                               Appellant
                    ____________________________________

                  On Appeal from the United States District Court
                            for the District of New Jersey
                        (D.C. Civil Action No. 10-cv-2958)
                  District Judge: Honorable Garrett E. Brown, Jr.
                   ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(b)
      or Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                  July 28, 2011

            Before: RENDELL, FUENTES and SMITH, Circuit Judges

                        (Opinion filed: September 1, 2011 )

                                  ___________

                                   OPINION
                                  ___________

                                        1
PER CURIAM

       Tommie Telfair appeals pro se and in forma pauperis from the United States

District Court for the District of New Jersey’s dismissal of his cause of action, the denial

of his motion for reconsideration, and the issuance of limitations on his right to file

documents and future civil actions in the District Court. For the reasons that follow, we

will summarily affirm the District Court’s August 9, 2010 order. We will also summarily

affirm the October 10, 2010 order to the extent that it denies Telfair’s motion for

reconsideration, but we will vacate the filing restrictions and remand for further

proceedings on that issue.

                                             I.

       The procedural history of this case and the details of Appellant’s claims are well-

known to the parties and were thoroughly explained in the District Court’s opinion.

Accordingly, the claims need not be discussed at length. In short, Telfair was charged

and found guilty of conspiracy to distribute and to possess and distribute 1 kilogram or

more of heroin, and distribution and possession with intent to distribute 100 grams or

more of heroin. (D.N.J. 08-cr-0757.) His apparent girlfriend, Catrina Gatling, was later

charged with one count of harboring a felon and making false statements to the DEA.1

Meanwhile, Telfair has filed several civil actions in the District of New Jersey, which

concern his and/or Gatling’s arrest and prosecution. (D.N.J. 08-cv-0731, 09-cv-2806, 10-

cv-0048.)

1
  Gatling pleaded guilty to the charge of harboring a felon. We agree with the District
Court that there is no indication that Gatling is knowingly involved in this cause of
action.
                                             2
       In June 2010, Telfair commenced the civil action at issue by filing a largely

incoherent document entitled “Grievance Form,” purportedly under the District Court’s

Local Civil Rule 104.1, which listed himself as the “grievant” and Gatling as an

“associated grievant.” He listed the “Office of the U.S. Attorneys’ the Agent(s) for the

Government, and Defense Counselor(s)” as the “entities grieved of.” Telfair stated that

he, Gatling, and “their children” have suffered injury “as a result of Ms. Gatling being

used as collateral through Grievant(s) entire litigation(s),” and is “now being used as a

unilateral punishment for the grievant and/or where the government is trying to dissolve

Ms. Gatling’s litigation in order to escape further liability.” (emphasis omitted) He then

requests that Gatling’s prosecution be “enjoined or stayed.” The document appears to

make claims that Telfair’s defense counsel and the prosecutors ensured that he had an

unfair trial and violated his due process rights in several ways. Telfair thereafter filed a

nearly identical second grievance form.

       On August 9, 2010, the District Court issued an order dismissing Telfair’s

grievance with prejudice, explaining that he lacked standing to pursue a grievance on

behalf of Gatling’s constitutional rights. It then concluded that no further investigation of

Telfair’s claims were warranted under Local Civil Rule 104.1(e)(2).

       Within ten days, Telfair filed a voluminous motion for reconsideration of the

District Court’s order.   He stated that he was actually “challeng[ing] his continued

detention,” and that his arguments on behalf of Gatling were “nevertheless simultaneous

to [his] chief litigation, where she is being subject to tortuous conduct derivative of [his]

litigation.” (emphasis omitted) He then reiterated that Gatling’s arrest and prosecution

                                             3
were improper and violated her constitutional rights. He also attempted to set forth

several additional claims, stating, among other things, that the attorneys involved in his

and Gatling’s prosecutions have engaged in professional misconduct and other misdeeds,

and that his arrest and trial were fundamentally unfair. Telfair then filed a “response” to

his own motion for reconsideration that seemed to directly challenge his arrest and

prosecution.

       On October 10, 2010, the District Court denied Telfair’s motion for

reconsideration, issuing an 84-page opinion that impressively untangles Telfair’s

extensive litigation history. It determined that the “grievance” was not bona fide, that it

had no authority to engage in a disciplinary review over “DEA agents, police officers, jail

officials” and others, as Telfair requested, and that the allegations regarding various

attorneys did not warrant further investigation or an opportunity for Telfair to submit a

viable grievance. The district court also noted that his claims were a mix of civil rights

and habeas challenges that had already been dismissed in other proceedings, and that his

claims regarding his conviction could only be raised in a direct appeal or collateral

proceedings. Further, the district court reiterated that Telfair had no standing to bring

claims on behalf of Gatling.

       Finally, the District Court determined that Telfair had abused the legal process by

the volume and content of his filings, which show, among other things, “his apparent

                                            4
disregard for judicial decisions.”2 It therefore issued a limited preclusion order pursuant

to 28 U.S.C. § 1651(a). As to Telfair’s current actions, the District Court required him to

seek leave from the presiding judge “to make any pro se submission before actually

making such submission.” If he did not comply, the document would be stricken from

the docket and not considered by the court. As to any of Telfair’s already terminated

actions, he was ordered not to make any filing except for a due notice of appeal. With

regard to any new matter that Telfair sought to initiate while acting pro se and proceeding

in forma pauperis, he was required to seek leave from the Clerk to initiate such matter. If

he failed to do so, the District Court would not consider the document, and the matter

would be administratively terminated. The order exempted civil rights complaints in

which Telfair asserts bona fide claims and details facts evincing that he is experiencing

imminent and ongoing danger to his life or health.         The order also exempted the

submission of a 28 U.S.C. § 2255 motion made in good faith and not prematurely.

       Telfair now appeals.

                                            II.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Because Telfair’s

timely appeal from the denial of his motion for reconsideration “brings up the underlying

judgment for review,” we will review the District Court’s dismissal of the grievance as

well as its denial of the motion for reconsideration. North River Ins. Co. v. CIGNA

Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995) (internal citation omitted). We

2
  The District Court noted that, in the District of New Jersey alone, Telfair had filed
2,245 pages of documents while “systematically raising and re-raising the same claims
and . . . filing the same documents many times over.”
                                            5
review an order denying a “motion for reconsideration for abuse of discretion, but we

review the District Court’s underlying legal determinations de novo and factual

determinations for clear error.” Howard Hess Dental Labs Inc. v. Dentsply Int’l, Inc.,

602 F.3d 237, 246 (3d Cir. 2010). We review for abuse of discretion a decision to

impose restrictions upon a plaintiff’s right to commence future litigation. Abdul-Akbar

v. Watson, 901 F.2d 329, 331 (3d Cir. 1990).

       The District Court has the inherent authority to discipline attorneys who appear

before it, and we review decisions regarding the regulation of attorneys for abuse of

process. Richardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1386 (3d Cir. 1972); D.N.J.

L. Civ. R. 104.1(e)(1) (stating that “attorney[s] authorized to practice law or appearing

before this Court” are subject to the District Court’s disciplinary authority). Further, we

generally give deference to a district court’s interpretation of its local rules unless the rule

in question is identical in relevant respects to the Federal Rules of Appellate Procedure.

Government of the Virgin Islands v. Mills, 634 F.3d 746, 750 (3d Cir. 2011).

       We will summarily affirm the dismissal of Telfair’s “grievance” and denial of his

motion for reconsideration because his appeal from those matters presents “no substantial

question.” 3d Cir. LAR 27.4 and I.O.P. 10.6. The District Court appropriately dismissed

Telfair’s grievance pursuant to Local Civil Rule 104.1(e)(5), as the allegations against the

attorneys involved in his criminal prosecution were meritless on their face and did not

warrant any further investigation pursuant to Local Civil Rule 104.1(e)(2).

       Further, as the District Court concluded, this cause of action was an ethics

application in name only, as the majority of Telfair’s allegations challenged the propriety

                                               6
of his (and Gatling’s) arrest and prosecution and/or were litigated previously. As has

repeatedly been explained to Telfair, challenges to his conviction and sentence may only

be brought in a direct appeal or in proper collateral proceedings. Likewise, to the extent

that any civil claims “would necessarily imply the invalidity of his conviction or

sentence,” they are barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994).

Additionally, as the District Court determined, Telfair lacks standing to bring 42 U.S.C.

§ 1983 claims on behalf of Gatling. See Whitmore v. Arkansas, 495 U.S. 149, 162-63

(1990) (explaining limitations of “next friend” standing).

       Just as the District Court properly dismissed Telfair’s complaint, it properly

denied his motion for reconsideration. He presented no basis for reconsideration, nor

does he have a meritorious argument on appeal. See Max’s Seafood Café ex rel. Lou-

Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (stating that the rationale for a

motion for reconsideration is “to correct manifest errors of law or fact or to present newly

discovered evidence.”).

       We also consider the District Court’s decision to restrict Telfair’s right to file

documents and future suits in the District of New Jersey. Orders restricting the filing of

documents from certain litigants are within a district court’s power under the All Writs

Act, 28 U.S.C. § 1651. In re Oliver, 682 F.2d 443, 445 (3d Cir. 1982). A “district court

has authority to require court permission for all subsequent filings once a pattern of

vexatious litigation transcends a particular dispute. ” Chipps v. U.S.D.C. for the M.D. of

Pa., 882 F.2d 72, 73 (3d Cir. 1989) (emphasis omitted). We have, however, held that a

district court must comply with certain procedural requirements before issuing this type

                                             7
of injunction against a pro se litigant. Significantly for purposes of this case, we have

explained that “the District Court must give notice to the litigant to show cause why the

proposed injunctive relief should not issue.” Brow v. Farrelly, 994 F.2d 1027, 1038 (3d

Cir. 1993) (citations omitted).

       We agree with the District Court that Telfair’s litigation practices likely constitute

an abuse of the judicial system, warranting a limitation on his access to the courts.

However, Telfair is entitled to notice before such an injunction is issued so that he may

have an opportunity to show cause why he should not be enjoined. See id. Given the

absence of proper notice here, we will vacate the injunction imposed and remand so that

Telfair can be afforded an opportunity to respond.

       For the foregoing reasons, we will summarily affirm the District Court’s August 9,

2010 order. We will also summarily affirm the order entered October 15, 2010 insofar as

it denied Telfair’s motion for reconsideration. We will vacate that order to the extent that

the District Court imposed restrictions on Telfair’s access to the courts, and remand that

issue only for further proceedings consistent with this Opinion. Appellant’s pending

motions are denied.

                                             8


            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                           June 4, 2002 Session

               STATE OF TENNESSEE v. JIMMY WAYNE DUDLEY

                     Direct Appeal from the Circuit Court for Madison County
                             No. 99-252    Roy B. Morgan, Jr., Judge

                         No. W2001-01381-CCA-R3-CD - Filed May 16, 2003

A Madison County grand jury indicted the defendant for aggravated assault. Subsequently a trial jury
convicted the defendant as charged. By the time of the sentencing hearing, the parties had reached
an agreement involving a pending probation revocation matter, a pending assault charge, and the
instant conviction. With respect to the probation revocation, the trial court ordered the defendant to
serve four years at 30% as a standard offender. On the assault conviction, the court ordered the
defendant to serve eleven months and twenty-nine days at 75%. Finally, the defendant received an
agreed upon four-and-one-half-year sentence to be served at 30% as a standard offender for the
aggravated assault conviction at issue in this case.1 The sentences were ordered run in such a manner
that the defendant by agreement received an effective sentence of eight and one-half years. The
defendant later filed a motion for new trial and an amended motion for new trial unsuccessfully
raising five issues. Through this appeal the defendant continues to assert that 1) the evidence is
insufficient to support his aggravated assault conviction; 2) the trial court erred in not allowing the
defense to present evidence that the victim’s bodily injury resulted from another incident, not the
defendant’s purported use of a deadly weapon; and 3) the trial court erred in admitting a photograph
allegedly showing the victim’s injuries and in admitting a shirt allegedly worn by the victim at the
time of the offense as these items were not provided to the defense in pre-trial discovery. However,
after reviewing the record and relevant authorities, we find that these contentions lack merit or have
been waived. We, thus, affirm the lower court’s denial of relief.

                   Tenn. R. App. P. 3; Judgment of the Trial Court is Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT, JR., JJ., joined.

Didi Christie, Brownsville, Tennessee, for the appellant, Jimmy Wayne Dudley.

        1
           Other conditions including certain restitution and a jury-imposed fine of five hundred dollars accompanied
this sentence.
Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Jerry
Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                              OPINION

                                        Factual Background

          On December 20, 1998, Jimmy Bowman, Danny Dudley, and the defendant went to Cody’s,
a country-western bar in Jackson, Tennessee. Also there for a Christmas/birthday celebration were
Kevin Fowler, Deva Fowler, Jimmy Pierce, Jennifer Tuten and their friends. In the early morning
hours a dispute arose based on a comment allegedly made to Deva Fowler by Jimmy Bowman.
Deva’s husband Kevin went to Bowman demanding an apology. Though later denying that he would
ever have made the inappropriate comment, Bowman apologized. At this point, the Fowlers and
Bowman along with Randy Hall, a manager at the time at Cody’s, seemed to believe that trouble had
been averted. Nevertheless, soon thereafter a fight broke out between the defendant and Jimmy
Pierce, the victim in this case.
          According to Pierce the defendant approached him and inquired what was happening
(presumably with Bowman and the Fowlers). Pierce responded, “Man, I think there was a problem
. . . but everything is cool now” and told about the apology. Pierce stated that the defendant then
indicated that if Pierce had a problem with Bowman, that Pierce had a problem with the defendant.
Pierce testified that immediately thereafter the defendant hit him on the left cheekbone with a beer
bottle. Pierce recounted that after inflicting the blow, the defendant still had the broken bottle in his
hand; thus, the victim admitted, he had fought back against the defendant because he “wasn’t in
favor of being stabbed with” the remainder of the bottle. As a result of the altercation, the victim
suffered facial injuries including a deep cut to the cheekbone requiring sutures to close.
          In presenting its case, the defense called Jimmy Bowman and Danny Dudley. Beyond
providing information about the incident involving the Fowlers, Bowman stated that on the night in
question, the club was noisy and crowded making him wonder “how anybody can say what they saw
‘cause . . . everything was going chaos [sic]” at the time. Bowman did relate that he had not seen a
broken beer bottle in the defendant’s hand at any point during the incident. However, he also
acknowledged that he had not seen who had started the fight and that he would not know if the
defendant had struck the victim in the face with a beer bottle. Dudley, the defendant’s brother and
a University of Florida fan, indicated that earlier that night in the patio area of Cody’s, Pierce had
begun a verbal altercation over the University of Tennessee and the University of Florida football
programs. Dudley further stated that he had gone inside to avoid conflict. Once inside, he was nearby
when the discussion took place between the Fowlers and Bowman. Like Bowman, this witness
acknowledged that he had not seen the fight between Pierce and the defendant begin, but added that
to his knowledge the defendant had not started a fight. He also testified that he had not seen the
defendant holding a broken beer bottle that night.
          The jury convicted the defendant of aggravated assault. Through the instant appeal the
defendant raises four claims seeking relief from this conviction.

                                                  -2-
                                             Sufficiency

         The defendant first asserts that the evidence is insufficient to support his conviction. When
a defendant challenges the sufficiency of the evidence, this Court is obliged to review that claim
according to certain well-settled principles. A verdict of guilty, rendered by a jury and “approved by
the trial judge, accredits the testimony of the” State’s witnesses and resolves all conflicts in the
testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris,
839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked with a
presumption of innocence, the jury verdict of guilty removes this presumption “and replaces it with
one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of
proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. Id. The
relevant question the reviewing court must answer is whether any rational trier of fact could have
found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.
App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence in evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. While the trier of fact must be
able to “determine from the proof that all other reasonable theories except that of guilt are excluded,”
case law provides that “a criminal offense may be established exclusively by circumstantial
evidence.” State v. Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); see also, e.g., State v.
Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987).
         Turning to the language of the aggravated assault statute, Tennessee Code Annotated section
39-13-102, in pertinent part, provides that “[a] person commits aggravated assault who: (1)
[i]ntentionally or knowingly commits an assault as defined in § 39-13-101 and: . . . (B) [u]ses or
displays a deadly weapon.” Tenn. Code Ann. § 39-13-102(a)(1)(B). According to the language of
the defendant’s indictment, the relevant portion of section 39-13-101 refers to causing another bodily
injury. See id. § 39-13-101(a)(1). Furthermore our code defines bodily injury as “includ[ing] a cut,
abrasion, bruise, burn or disfigurement; physical pain or temporary illness or impairment of the
function of a bodily member, organ, or mental faculty” and defines a deadly weapon as “[a] firearm
or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily
injury; or . . . [a]nything that in the manner of its use or intended use is capable of causing death or
serious bodily injury.” Id. § 39-11-106(a)(2), (5).
         In the instant case, witnesses testified that the defendant had approached and struck the
victim in the face with a beer bottle without the victim’s first making any aggressive movement
toward the defendant. The victim indicated that he suffered a deep laceration requiring sutures to the
cheek hit by the bottle. Thus, viewing the evidence in the light most favorable to the State, the proof

                                                  -3-
supports a finding that the defendant intentionally or knowingly caused the victim bodily injury by
use of a deadly weapon.2 This issue lacks merit.

          Excluded Potential Proof Regarding the Cause of the Victim’s Bodily Injury

         In his second issue, the defendant avers that the trial court erred in preventing him from
eliciting testimony that the victim’s injuries had been “caused by an event other than the
[d]efendant’s alleged use of a deadly weapon.” More specifically, the defendant contends that the
victim’s injuries actually resulted from an altercation outside of Cody’s on the night in question. The
State responds that the defendant has waived this matter by failing to make the relevant offers of
proof.
         We agree that “in order to reverse a trial court’s ruling to exclude evidence, a substantial right
of a party must be affected and, if not apparent from the context, ‘the substance of the evidence and
the specific evidentiary basis supporting admission’ must be made in an offer of proof.” State v.
Robinson, 73 S.W.3d 136, 150 (Tenn. Crim. App. 2001) (quoting Tenn. R. Evid. 103(a)(2)).With
this in mind, we again consider the record in the instant case.
         Defense counsel attempted to pursue this line of questioning on two occasions at trial: first
with Deva Fowler and then with the victim. The prosecution objected in the first instance, and the
trial court sustained the objection. When the State subsequently believed that defense counsel’s line
of questioning was returning to this area, a second bench conference on this matter occurred in which
the prosecutor reminded the court of its earlier ruling. During this exchange the trial court cautioned
defense counsel saying, “. . . you know what the ruling is. . . . I assume he’s not going to get into
that.” In both instances, defense counsel then abandoned this topic and did not seek to make an offer
of proof regarding how the witnesses would have responded.
         From the record before us, we have no indication of what responses these two State witnesses
would have made to counsel’s questioning. Although it appears that questions concerning how the
victim received his wounds could have been elicited relevant information, lacking an offer of proof,
we cannot appropriately evaluate the defendant’s contention on this point. See Tenn. R. Evid.
103(a)(2); and See e.g., State v. James McKinley Cunningham, No. M1999-01995-CCA-R3-CD,
2000 WL 1520247, at *5 (Tenn. Crim. App. at Nashville, Oct. 13, 2000).

                                      Admission of Contested Evidence

        The defendant next asserts that the trial court erred in admitting a photograph of the victim’s
injured face and in admitting a shirt allegedly worn by the victim at the time of the offense. For both
of these claims, the defendant argues that the items should have been excluded because the State
failed to provide them in pre-trial discovery.

         2
             Under appropriate circumstances a bottle can satisfy the dead ly weap on element of aggravated assault. See,
e.g., State v. Albert King, No. 01C01-9301-CC-00042, 1993 WL 539139, at *2 (Tenn. Crim. App. at Nashville, Dec.
30, 1 993 ).         .

                                                          -4-
        Tennessee Rule of Criminal Procedure 16(a)(1)(C) governing the discovery of documents
and tangible objects states that
                    [u]pon request of the defendant, the State shall permit the defendant
                    to inspect and copy or photograph books, papers, documents,
                    photographs, tangible objects, buildings or places, or copies or
                    portions thereof, which are within the possession, custody or control
                    of the State, and which are material to the preparation of the
                    defendant's defense or are intended for use by the State as evidence
                    in chief at the trial, or were obtained from or belong to the defendant.

Tenn. R. Crim. P. 16(a)(1)(C) (emphasis added). However, even if a defendant demonstrates that the
prosecution failed to comply with the mandates of discovery, “evidence should not be excluded
except when it is shown that a party is actually prejudiced by the failure to comply with the discovery
rules and the prejudice cannot be otherwise eradicated.” State v. Leon Goins, No. W1999-01681-
CCA-R3-CD, 1999 WL 1531111, at * 2 (Tenn. Crim. App. at Jackson, Dec. 27, 1999); see also State
v. Garland, 617 S.W.2d 176, 185 (Tenn. Crim. App. 1981).
         In objecting at trial to the admission of the photographic evidence, defense counsel in the
instant case claimed that he had asked the prosecution if it had any photographs because the State’s
file indicated that some existed.3 Defense counsel added that the prosecutor had claimed to have
none. A later comment by the State suggests that the photographs mentioned in the file were not
those provided by the victim and that the defense did not make “a specific request” for the State to
obtain those photographs. However, in the hearing of the defendant’s new trial motion, the
prosecution stated, “That photograph is referenced in the discovery materials.”
         More specifically addressing the timing of providing the defense the photographs for review,
the prosecutor stated that the photographs at issue had been given to him that morning by the victim
Mr. Pierce. Defense counsel had already acknowledged that the prosecution had shown him the
contested photographs the morning of trial. After clarifying that the photos had not been in the
possession of law enforcement, the trial court allowed the State to introduce one of them.
         Regarding the aforementioned shirt with blood on it, a similar exchange took place. Defense
counsel again complained that this article had not been provided to him in discovery.4 He argued
that “there’s no way of knowing whether that’s deer blood or possum blood or whatever” on the
soiled shirt. The trial court asked the prosecutor if it was his contention that “the [d]efendant [sic]
has had his shirt and produced it today when he came to court?” The State replied, “I had it today.
I had it today when he [the victim] brought it in.” The trial court then found the shirt admissible if
the victim could identify the item and whether its condition accurately reflected its condition on the
night of the offense. The victim later testified that the shirt, with a few additional wrinkles, looked
as it had that night.

         3
             W e observe that the record does no t contain a cop y of discovery material referencing pho tographs.

         4
            The defendant also objected based upon a lacking chain of custody claim. H e pursued this claim in his new
trial motion bu t has not raised it in this appeal.

                                                            -5-
       After reviewing the record, we find that the defendant has failed to show that the State had
possession, custody, or control of these items. Furthermore, were we to find that the State had not
complied with discovery, the defendant has failed to argue how he was in any way prejudiced by this
non-compliance. Moreover, he made no motion for a continuance to further examine these items.
For these reasons we determine that the defendant’s claim merits no relief.

                                           Conclusion

      For the foregoing reasons we find that the defendant’s issues lack merit or are waived.
Accordingly, we AFFIRM the lower court’s actions.

                                                     ___________________________________
                                                     JERRY L. SMITH, JUDGE

                                               -6-


                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-2520
                         ___________________________

                                   Veronica Delph

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

          University of Arkansas for Medical Sciences; Melvin Kirkwood

                       lllllllllllllllllllllDefendants - Appellees
                                        ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                              Submitted: June 17, 2020
                                Filed: June 22, 2020
                                   [Unpublished]
                                   ____________

Before ERICKSON, WOLLMAN, and STRAS, Circuit Judges.
                        ____________

PER CURIAM.

     Veronica Delph appeals the district court’s1 adverse grant of summary
judgment in this employment discrimination action. Having carefully reviewed the

      1
       The Honorable D.P. Marshall Jr., Chief Judge, United States District Court for
the Eastern District of Arkansas.
record and the parties’ arguments on appeal, we find no basis for reversal. See Banks
v. John Deere & Co., 829 F.3d 661, 665 (8th Cir. 2016) (standard of review).
Accordingly, we affirm. See 8th Cir. R. 47B.
                        ______________________________

                                         -2-


517 F.Supp. 1314 (1981)
Alan GOLDSTEIN, Plaintiff,
v.
Patricia Roberts HARRIS, Secretary of the Department of Health and Human Services, Defendant.
No. 80 Civ. 5170.
United States District Court, S. D. New York.
July 16, 1981.
*1315 Kresky, Sinawski & Davis, for plaintiff by Harry S. Kresky, New York City.
John S. Martin, Jr., U. S. Atty., S. D. N. Y., for defendant by Asst. U. S. Atty. Harvey J. Wolkoff, New York City.
SOFAER, District Judge:
Plaintiff Alan Goldstein commenced this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), for judicial review of a final determination of the Secretary of Health, Education and Welfare (now Health and Human Services) that plaintiff was not entitled to disability benefits and that he must repay benefits he had previously received. Both plaintiff and the Secretary have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. *1316 Because the Secretary's decision was predicated on an erroneous interpretation and misapplication of the Act, the case is remanded to the Secretary for a determination based on proper legal standards.
On October 24, 1975, plaintiff, a dentist, filed an application for disability insurance benefits. He claimed that he had been unable to work since May 2, 1975 because he had Hodgkins disease. At about the same time, plaintiff commenced part-time work in a dental clinic. Plaintiff claims that he called a local Social Security Office and was told by an employee that he could return to work on a trial basis without sacrificing his disability benefits. Plaintiff continued to work part-time at dental clinics until he opened a private practice in April 1978.
On November 28, 1975, plaintiff's application for disability benefits was accepted by the Bureau of Disability Insurance of the Social Security Administration ("SSA"). Plaintiff and his family received $12,630.60 in benefits before the SSA determined, in late 1977, that plaintiff was not entitled to further benefits and had to repay all benefits that he had previously received. This termination was based on a finding that, because plaintiff had returned to work in October 1975, he had never been disabled "for a sufficient period of time to qualify for benefit payments under the law." Transcript of SSA Record at 83 [hereinafter cited as "Tr. (page)"].
On November 21, 1979, following a lengthy series of administrative proceedings, an Administrative Law Judge ("ALJ") affirmed the termination of benefits and the order that plaintiff repay all past benefits. The ALJ noted that section 223(d)(1) of the Act defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1). The ALJ reasoned that plaintiff's return to work at the dental clinic constituted a return to "substantial gainful activity" within twelve months of the onset of the alleged disability, and that plaintiff therefore could not be considered ever to have been under a disability. This determination was predicated on a finding that plaintiff's part-time earnings exceeded those set forth in the Social Security Act regulations as demonstrating a capacity to engage in substantial gainful activity. 20 C.F.R. § 404.1574 (1981). The ALJ also determined that plaintiff was not "without fault" and therefore was not, under the statute and regulations, entitled to a waiver of repayment of improperly received benefits. 42 U.S.C. § 404(b); 20 C.F.R. § 404.507.
The ALJ's determination was based, in part, upon an erroneous premise. First, the ALJ failed to apply the proper legal standard in determining whether plaintiff's return to part-time work could be considered a period of trial work within the meaning of the Act. Section 222(c) permits a disabled individual to engage in trial work beginning in the month in which he becomes eligible to receive disability insurance benefits, and concluding either nine months thereafter or when the disability ends (whichever is earlier). 42 U.S.C. § 422(c). The Act and regulations, however, provide that, for purposes of determining whether an individual's disability has terminated, the Secretary may not consider services rendered during a period of trial work. 42 U.S.C. § 422(c)(2); 20 C.F.R. § 404.1592(a). The ALJ properly stated that "only an individual entitled to disability insurance benefits may be given the benefits of a period of trial work." Tr. 27. But the ALJ erred in concluding that, because plaintiff returned to work within twelve months of the onset of the alleged disability, he was never entitled to disability insurance benefits and thus never eligible for a trial-work period. Id.
The Act defines disability as an impairment "which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1) (emphasis added). The statute thus contemplates that a person can be *1317 declared to be disabled on the basis of the expectation of a lengthy period of impairment, even before the twelve month period has elapsed. Kendrick v. Califano, 460 F.Supp. 561, 567 (E.D.Va.1978); McMillen v. Califano, 443 F.Supp. 1362, 1367 (N.D.N.Y. 1978). Once a person becomes eligible for disability-insurance benefits  i. e., five months after the onset of the disability, 42 U.S.C. § 423  he may commence a trialwork period. Id. § 422(c). Under the ALJ's reasoning, however, a person could never safely commence trial work, because the Secretary could subsequently view such work as demonstrating that the recipient had never been disabled. This result would contravene the general rule that the Social Security Act be considered a "remedial statute to be broadly construed and liberally applied." Gold v. Secretary of Health, Education & Welfare, 463 F.2d 38, 41 (2d Cir. 1972) (quoting Haberman v. Finch, 418 F.2d 664, 667 (2d Cir. 1969)). Moreover, this approach would undermine the purpose of section 222(c)(1) of the Act, 42 U.S.C. § 422(c)(1), to "encourage return to work by eliminating the threat that the return will terminate benefits." Reynolds v. Secretary of Health, Education & Welfare, Unempl. Ins. Rep. (CCH) ¶ 17,250, at 2096 (S.D.N.Y. 1979).
Even if plaintiff's part-time work were not deemed to constitute trial work within the meaning of section 222(c), 42 U.S.C. § 422(c), the ALJ erred in holding that the fact that plaintiff's earnings exceeded the amounts set forth in the regulations conclusively demonstrated that he had engaged in substantial and gainful activity. Earnings in excess of the specified amounts do not preclude a finding of disability, but merely create a rebuttable presumption of substantial and gainful activity. Simms v. Harris, Unempl. Ins. Rep. (CCH) ¶ 17,234 (D.C.Cir.1980); Swafford v. Harris, Unempl. Ins. Rep. (CCH) ¶ 17,334 (D.Tenn. 1980). The ALJ must also consider the nature of the work performed, the adequacy of performance, any special employment conditions, and the amount of time spent working. 20 C.F.R. § 404.1573; Russel v. Department of Health & Human Services, Unempl. Ins. Rep. (CCH) ¶ 17,371 (S.D.N.Y. 1980). The last factor is especially important with respect to a professional, who can earn high hourly wages relative to the average wage-earner.
This case must therefore be remanded. The Secretary must decide whether plaintiff was eligible to receive disability insurance benefits  and thus was eligible to begin trial work  at the time he commenced part-time work at the dental clinic. In order to make this determination, the Secretary must first decide whether plaintiff, at the time of the alleged onset of the disability on May 2, 1975, was suffering from an impairment that could be expected to last for at least twelve months. If such disability existed, then the plaintiff became eligible for a period of trial work on October 2, 1975, five months after the disability began. McMillen v. Califano, supra, 443 F.Supp. at 1367.
Defendant's contention that plaintiff was required to wait until November 1, 1975 before commencing trial work must be rejected. This claim is based on the statutory language that provides that a person becomes eligible for disability insurance benefits beginning with the first month after the five month waiting period required by the statute. 42 U.S.C. § 423(c). Defendant reads this language as requiring a claimant to wait until the beginning of a new calendar month before starting trial work. This interpretation is contrary to the remedial purposes of the Act, Gold v. Secretary of Health, Education & Welfare, supra, and is against the weight of authority on this issue, see, e. g., Otworth v. Finch, 435 F.2d 542, 543 (6th Cir. 1970); McMillen v. Califano, supra, 443 F.Supp. at 1367.
The Secretary may, however, consider whether plaintiff's application for benefits was filed before he commenced part-time employment. The regulations provide that a trial-work period "cannot begin before the month in which you file your application for benefits." 20 C.F.R. § 404.1592(e). Without such a rule, the Secretary would be unable to monitor trial work so as to ensure *1318 that the rehabilitative purposes of the Act were promoted, Sigmon v. Califano, 617 F.2d 41 (4th Cir. 1980), and would be hindered in reducing the occurrence of fraudulent claims.
The courts that have applied this regulation have confronted situations in which the trial work began in a calendar month prior to the month in which the application was filed. Sigmon v. Califano, supra; McMillen v. Califano, supra, 443 F.Supp. at 1367 n.5; Sanborn v. Weinberger, 383 F.Supp. 859, 869-70 (D.Del.1974). Here, by contrast, the application for benefits apparently was filed in the same month in which the plaintiff went back to work. Plaintiff filed the application for benefits on October 24, 1975. The ALJ found that "the claimant returned to his former employment as a dentist in October, 1975." Tr. 29. This conclusion is fairly supported by the record, particularly by the introduction of earnings statements showing that plaintiff earned $400 from the dental clinic in October 1975. Plaintiff's statement at his hearing that he was paid $50 twice a week, suggests that plaintiff returned to work early in October. If that is true, then some of the work occurred prior to plaintiff's filing of the application.
The language of the regulation indicates that a period of trial work can begin at any time during a month in which an application is eventually filed. But this Court declines to decide that issue without the benefit of defendant's conclusions on the particular facts of this case and its expertise as to the application of 20 C.F.R. § 404.1592(e). Any work undertaken by plaintiff that was not properly part of a trial-work period may be taken into consideration by the Secretary in determining whether plaintiff was engaged in substantial and gainful activity during the period of alleged disability. But in resolving this issue, the Secretary must consider the other relevant factors outlined above.
If the Secretary determines that plaintiff was never disabled, then plaintiff may have to repay the benefits that he previously received. The ALJ properly applied section 204(b) of the Act, which provides that "[i]n any case in which more than the correct amount of payment has been made, there shall be no ... recovery by the United States from ... any person who is without fault if such ... recovery would defeat the purpose of this subchapter or would be against equity and good conscience." 42 U.S.C. § 404(b). Plaintiff contends that he was without fault, because he was told by an SSA employee that he could work at the dental clinic without jeopardizing his right to receive benefits.
The regulations require that, in determining whether an overpaid individual is at fault, the SSA "will consider all pertinent circumstances, including his age, intelligence, education, and physical and mental condition." 20 C.F.R. § 404.507. The regulations further provide that fault existed if the incorrect payment resulted from:
(a) An incorrect statement made by the individual which he knew or should have known to be incorrect; or
(b) Failure to furnish information which he knew or should have known to be material; or
(c) With respect to the overpaid individual only, acceptance of a payment which he either knew or could have been expected to know was incorrect.
Id.
The ALJ's conclusion that plaintiff was not without fault is supported by substantial evidence. Although the ALJ did not specify the precise ground for this decision, it is apparent from his opinion that he based the decision on plaintiff's failure to provide material information. The ALJ found:
When he filed his application herein, the claimant agreed to notify the Social Security Administration if he returned to work. He alleges that he did make a telephone call to report employment. But he also concedes that it was a "quick call" and that all details were not discussed. He made no other effort to advise the Social Security Administration of his earnings for a period in excess of one year. *1319 Tr. 29. All of these findings are fully supported by the evidence in the record, and it is therefore clear that plaintiff did not meet his obligation to keep the SSA informed of changes in his employment status. Cf. Kendrick v. Califano, supra (reversing Secretary's finding that claimant was not without fault where there was uncontroverted evidence that claimant, his mother, and a third person, had discussed claimant's return to work with SSA employees); Michalak v. Weinberger, 416 F. Supp. 1213 (S.D.Tex.1976). The ALJ's determination that plaintiff was not without fault made it unnecessary to decide whether recovery of the overpayment would defeat the purposes of the Act or would be against equity and good conscience.
On the other hand, the ALJ's conclusion may well have been based in part upon his failure to review the evidence of plaintiff's illness or the actual extent of plaintiff's work. Moreover, neither plaintiff nor the SSA sought to locate the person with whom plaintiff spoke. In light of the need to remand this case for new findings, the ALJ should also review the issue of plaintiff's fault. He should consider whether the entire record, when complete, would warrant reconsideration or modification of the order to repay the entire amount plaintiff received  especially in light of plaintiff's assertion that he has had a relapse and cannot afford to make repayment. The Court will retain jurisdiction of this case and place it on the suspense calendar.
Remanded for reconsideration consistent with this opinion.
SO ORDERED.


363 F.3d 740
Youssef Al TAWM, Petitioner,v.John ASHCROFT, U.S. Attorney General, Respondent.
No. 03-1040.
United States Court of Appeals, Eighth Circuit.
Submitted: February 13, 2004.
Filed: April 13, 2004.

COPYRIGHT MATERIAL OMITTED Rachael Groneck, St. Louis, MO, for appellant.
Blair T. O'Connor, Dept. of Justice, Washington, D.C., for appellee.
Before LOKEN, Chief Judge, BOWMAN, and WOLLMAN, Circuit Judges.
WOLLMAN, Circuit Judge.

1
Youssef Al Tawm, a native citizen of Lebanon, petitions for review of a final order of the Board of Immigration Appeals (BIA). The BIA affirmed the decision of the Immigration Judge (IJ) without opinion, see 8 C.F.R. § 1003.1(a)(7) (2004),1 denying Al Tawm's application for asylum, withholding, and protection under the Convention Against Torture. For the reasons stated below, we deny the petition.

I.

2
Al Tawm entered the United States on October 5, 2000, without a visa. He remained in the United States, and the INS initiated removal proceedings against him on October 31, 2000. He did not dispute his removability, but applied for political asylum, claiming that he had suffered past persecution and that he had a genuine fear of future persecution because of his membership in the Lebanese Forces, a Lebanese Christian group opposing Syrian domination in Lebanon. The group was paramilitary until 1994, when the government disbanded it and placed its leader in prison.

3
Al Tawm provided documentary evidence that he is Catholic and that he is a member of the Lebanese Forces Party. He also provided a number of articles reporting the mistreatment of Lebanese Forces members and other activists, consisting of round-up arrests and detentions from September 2000 to August 2001. At the hearing, the IJ heard testimony from Al Tawm and from Nicholas Chahoud, his uncle and a leader within the Lebanese Forces in North America. Chahoud testified that there are approximately 10,000 Lebanese Forces members, consisting of about 70-75 percent of Maronite Christians in Lebanon. Although he has not returned to Lebanon since 1993, Chahoud testified to his belief that Al Tawm would be arrested and tortured if returned to Lebanon.

4
Al Tawm testified, both by affidavit and in person, that he joined the Lebanese Forces in 1988. Although he had no rank in the Forces, he worked as an information gatherer, and then as a recruiter. He testified that he experienced two brief detentions by the Syrian Secret Service in 1994 and 1998. He claims that the Secret Service stopped him in 1994, held him for four or five hours, accused him of being an agent of Israel, and beat him lightly before releasing him without charge. He claims that Syrian agents again detained him for a few hours in 1998 after he helped with a successful political campaign for the Lebanese Forces, beating, questioning, and threatening him before letting him go. After he was released, Al Tawm went to a hospital in Beirut and received an ointment for swelling. He recovered fully within a week. He alleges that other members of his extended family have also been detained.

5
Al Tawm testified that after the second arrest in 1998, he went to live with his sisters in a suburb of Beirut. During the two years he lived with them, he did not work. He remained part of the Lebanese Forces, helping to prepare for annual ceremonies, but had no encounters with the police or military. He left Lebanon on September 26, 2000, with the help of a smuggler, planning to enter the United States.

II.

6
We treat the IJ's decision as a final agency action for purposes of judicial review when the BIA affirms without an opinion. Wondmneh v. Ashcroft, 361 F.3d 1096, 1098 (8th Cir.2004). We affirm factual findings if they are supported by substantial evidence, Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir.2002), and reverse the administrative decision only if the evidence shows that "a reasonable fact-finder would have to conclude that the requisite fear of persecution existed." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also Habtemicael v. Ashcroft, 360 F.3d 820, 824 (8th Cir.2004). We do not substitute our own judgment for that of the agency. We review legal conclusions de novo, although we are obliged to give due deference to the agency's interpretation of the immigration laws. Eusebio v. Ashcroft, 361 F.3d 1088, 1090 (8th Cir.2004).

7
To be eligible for asylum, Al Tawm must show persecution or a well founded fear of future persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). We assume a rebuttable presumption that an applicant will face future persecution if he shows he suffered past persecution. See Eusebio, 361 F.3d 1088, 1090; 8 C.F.R. § 208.13(b)(1) (2004). An action rises to the level of persecution if it involves "the infliction or threat of death, torture, or injury to one's person or freedom, on account of" one of the enumerated grounds in the refugee definition. Regalado-Garcia, 305 F.3d at 787. The mere presence of some physical harm does not require a finding of past persecution.

8
Although Al Tawm was a member of the Lebanese Forces and was detained twice, those incidents were four years apart, lasted only a few hours each, and did not result in serious injury. Brief periods of detention do not necessarily constitute persecution, and we have rejected claims involving equally serious or more serious abuse than that claimed by Al Tawm. See. e.g., Eusebio, 361 F.3d 1088, 1091 (asylum-seeker was briefly beaten and detained during rallies, his home was damaged and looted, and he was arrested for his speech as a teacher); Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003) (asylum-seeker suffered a one-time three-day imprisonment and a beating that caused facial swelling).

9
If an asylum-seeker fails to demonstrate past persecution, he must independently establish a well-founded fear of future persecution, based on both objective and subjective elements. Francois v. INS, 283 F.3d 926, 930 (8th Cir.2002). He must genuinely fear persecution and must provide credible, specific evidence that a reasonable person in his position would fear persecution if returned. Id. Al Tawm failed to show that his fear of future persecution was either well founded or reasonable. The IJ reasonably found that country conditions in Lebanon are not such that Al Tawm's fear is objectively reasonable. Although there is evidence that politically motivated arrests of particularly prominent anti-Syrian Christian leaders have occurred, as well as brief detentions of numerous activists, many Christian opposition groups remain active. In addition, Al Tawm's family has continued to live in Lebanon without incident. He also lived there for two years after the second incident, still an active member of the Lebanese Forces, without any harassment. Cf. Manivong v. District Director, INS, 164 F.3d 432, 433 (8th Cir.1999) (noting fear of future persecution may not be objectively reasonable if immigrant attends school and works in his home country and his family lives there for years without incident).

10
Withholding of removal involves a higher degree of certainty that persecution will occur than that required for asylum eligibility. Before the government will grant withholding, the alien must present evidence to establish that it is "more likely than not that the alien would be subject to persecution on one of the specified grounds." INS v. Stevic, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). This standard requires an objectively established "clear probability." Id., at 430, 104 S.Ct. 2489. Because Al Tawm has failed to carry the burden of proof to demonstrate he is eligible for asylum, he also fails under the higher burden of proof required for withholding. See Habtemicael, 360 F.3d at 825.

11
Al Tawm has also failed to carry the similar burden required under the Convention Against Torture, under which he bears the burden of proof to establish that he is eligible for relief because it is more likely than not that he will be tortured if he returns to Lebanon. See Perinpanathan v. INS, 310 F.3d 594, 599 (8th Cir. 2002); 8 C.F.R. § 208.16(c)(2) (2004). Our review of the record leads us to agree with the IJ that Al Tawm has not suffered past torture and that he has not provided evidence that non-leader Lebanese Forces members are likely to be tortured by Syrian forces upon return.

12
Finally, Al Tawm challenges the BIA's choice to affirm the IJ's decision without an opinion. Immigrants denied asylum by the IJ have a right to administrative appeal, See 8 U.S.C. § 1101(a)(47). Nevertheless, the BIA does not abuse its discretion when it adopts the decision of an IJ, because the reasoning in the IJ's opinion is sufficient to satisfy the requirement that the agency set out the basis for its decision. Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir.2003). The BIA may affirm without an opinion under 8 C.F.R. § 1003.1(a)(7) (2004), which provides that such an affirmance is permissible if one member of the BIA determines that the IJ's decision is correct and any error is harmless, that the issue is squarely controlled by precedent or law, and that any factual or legal questions are insubstantial. Id. We conclude that it was not inappropriate for the BIA to make the choice to utilize that procedure in this case.

13
The petition for review is denied.

Notes:

1
 This section was renumbered. It was previously 8 C.F.R. § 3.1See 68 Fed.Reg. 9830-9832 (Feb. 28, 2003).


                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                         AUG 27 1997
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 97-1008
                                                  (D.C. No. 96-CR-253-B)
 TROY LAMONT HOLLOWAY,                                   (D. Colo.)

           Defendant - Appellant.

                               ORDER AND JUDGMENT *

Before BRORBY, EBEL, and KELLY, Circuit Judges. **

                Troy Lamont Holloway appeals from his sentence for attempted

possession of cocaine base in violation of 21 U.S.C. §§ 844(a) and 846. Our

jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

       Mr. Holloway pled guilty to a single-count information charging him with

“attempt to possess more than 5 grams of a mixture or substance containing a

       *
        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.
       **
         After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
detectable amount of cocaine base (commonly known as ‘crack cocaine’ or

‘crack’)” and was sentenced to 60 months of imprisonment. See Fed. R. Crim. P.

11(e)(1)(C). On appeal, he raises one issue: “[w]hether [s]entencing was

improper because the government did not affirmatively show that the cocaine

derivative that was seized was of such a nature to qualify for application of the

‘crack’ sentencing guidelines.” See U.S.S.G. § 2D1.1(c).

      We review the district court’s factual findings for clear error and its

application of the Sentencing Guidelines de novo. United States v. Kissick, 69

F.3d 1048, 1051 (10th Cir. 1995). After reviewing the record, we hold that the

district court’s finding that the substance was crack cocaine was not clearly

erroneous and that the court correctly applied the Sentencing Guidelines.

      Mr. Holloway specifically pled guilty to attempted possession of crack

cocaine. The district court was entitled to rely upon that admission. See, e.g., 2

R. 10-14, 21-24. Mr. Holloway cites United States v. James, 78 F.3d 851 (3d

Cir.), cert. denied, 117 S. Ct. 128 (1996), for the proposition that the government

retains the burden to show that the substance at issue is crack even after the

defendant enters a plea of guilty. James is distinguishable because the only

references to “crack cocaine” in that case were made by the prosecutor, while “the

indictment, the defendant, and the court at the plea colloquy sp[oke] in terms of

cocaine base.” Id. at 856. In contrast, the substance at issue in this appeal was

                                         -2-
described as “cocaine base (commonly known as ‘crack cocaine’ or ‘crack’)”

throughout the proceedings. See, e.g., 1 R. 2; 2 R. 12, 21-22. The district court

also relied upon Mr. Holloway’s admissions, recorded in the presentence report,

that he had been addicted to crack cocaine since his early twenties and that he

usually smoked three to four grams of crack each day. 3 R. 12-13. The court’s

finding is further supported by Mr. Holloway’s letters of mitigation, describing

himself as a crack addict. Id.

      Mr. Holloway argues that the district court incorrectly applied the enhanced

penalties for crack-related crimes because sodium bicarbonate was not present in

the substance found in his possession. Note (D) to the Drug Quantity Table of the

guidelines provides that:

      “Cocaine base,” for the purposes of this guideline, means “crack.”
      “Crack” is the street name for a form of cocaine base, usually
      prepared by processing cocaine hydrochloride and sodium
      bicarbonate, and usually appearing in a lumpy, rocklike form.

U.S.S.G. § 2D1.1(c), Note (D). Mr. Holloway reads this definition to require that

any substance identified as “cocaine base” must be shown to contain sodium

bicarbonate before it may be treated as “crack” for sentencing purposes.

      Notes or commentary to the sentencing guidelines are considered binding

authority unless either violative of the Constitution or a federal statute, or clearly

inconsistent with the guideline the commentary purports to explain. Stinson v.

United States, 508 U.S. 36, 45 (1993). Therefore, we must construe the

                                          -3-
Guidelines’ use of the term “cocaine base” in accordance with the definition set

out in Note D. Because Mr. Holloway’s interpretation would require us to ignore

the word “usually” in that definition, we reject it.

      We interpret the qualifier “usually” in the phrase “usually prepared . . .

with sodium bicarbonate” as an acknowledgment that other methods of crack

preparation exist and that not all forms of “cocaine base” need contain sodium

bicarbonate to qualify as crack for sentencing purposes. Indeed, it appears that

the method which uses sodium bicarbonate is the least sophisticated and yields the

lowest purity. See James, 78 F.3d at 856-57; United States v. Fulton, 960 F.

Supp. 479, 494 (D. Mass. 1997). Although the laboratory report does not indicate

the presence of sodium bicarbonate in the cocaine base tested, the district court

was correct to apply the enhanced penalties for crack-related crimes to Mr.

Holloway’s case.

      AFFIRMED.

                                        Entered for the Court

                                        Paul J. Kelly, Jr.
                                        Circuit Judge

                                          -4-


                                                                                United States Court of Appeals
                                                                                Fifth Circuit
                                                                                F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                December 23, 2004
                               FOR THE FIFTH CIRCUIT
                                                                                Charles R. Fulbruge III
                                 __________________________                                Clerk
                                        No. 03-60966
                                 __________________________

NATIONAL FEDERATION OF RETIRED PERSONS,
                                                                                Petitioner,

versus

SOCIAL SECURITY ADMINISTRATION,

                                                                                Respondent.

                 ___________________________________________________

                           Petition for Review from the Decision
                            of the Social Security Administration
                                          (A-03-16)
                 ___________________________________________________

Before GARZA, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

         Petitioner National Federation of Retired Persons (“NFRP”) appeals the decision of the

Departmental Appeals Board (“DAB”) to levy a fine on NFRP for the latter’s use of snap mailers in

violation of section 1140 of the Social Security Act. Section 1140 states that “[n]o person may use,

in connection with any item constituting an advertisement, solicitation, circular, book, pamphlet, or

other communication . . . [prohibited words] in a manner which such person knows or should know

         *
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
would convey, or in a manner which reasonably could be interpreted or construed as conveying, the

false impression that such item is approved, endorsed, or authorized by the Social Security

Administration . . . .” 42 U.S.C. § 1320b-10(a). In an initial review, the Administrative Law Judge

(“ALJ”) found both that NFRP knew or should have known the mailers could create a false

impression as to their origin, and that a reasonable person could have been similarly misled by the

solicitations; in particular, the mailers included numerous mentions of “SSA”, “Social Security”, and

“SSI”, and displayed images, such as the Capitol building, typically associated with governmental

bodies. The DAB affirmed this ruling, finding that there were not sufficient countervailing features

of the mailers to override its otherwise misleading nature and rejecting challenges to the ALJ’s legal

test.

        In this appeal, NFRP renews its argument that the ALJ’s legal conclusions were not justified

under the statute. For the cogent reasons given by the DAB, we reject NFRP’s contention. By

failing to point to any feature of the mailers that undermines the DAB’s factual conclusions, NFRP

implicitly concedes that part of the DAB’s order. Finally, we reject NFRP’s argument that section

1140 is unconstitutionally overbroad and vague. See J&B Entm’t, Inc. v. City of Jackson, Miss., 152

F.3d 362, 367 n.6 (5th Cir. 1998) (citing Greyned v. City of Rockford, 408 U.S. 104, 108–09

(1972)). Consequently, the DAB’s decision is AFFIRMED.


                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

 WILLIAM ROBERT DIXON,                           No. 15-16728

                  Plaintiff-Appellant,           D.C. No. 3:13-cv-00586-RCJ-VPC

   v.
                                                 MEMORANDUM *
 ROBERT LeGRAND, Warden; et al.,

                  Defendants-Appellees.

                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                           Submitted February 14, 2017**

Before:       GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.

        Nevada state prisoner William Robert Dixon appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional

claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We may affirm on any

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
basis supported by the record, Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.

2008), and we affirm.

      Summary judgment on Dixon’s access-to-courts claim was proper because

Dixon failed to raise a genuine dispute of material fact as to whether defendants’

alleged refusal to request Dixon’s legal materials from Ohio in a timely manner

caused his injury. See Lewis v. Casey, 518 U.S. 343, 348-49 (1996) (access-to-

courts claim requires actual prejudice to contemplated or existing litigation, such

as inability to meet a filing deadline or to present a claim); see also Harper v. City

of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) (“In a § 1983 action, the

plaintiff must . . . demonstrate that the defendant’s conduct was the actionable

cause of the claimed injury.”).

      The district court properly granted summary judgment on Dixon’s claim

alleging denial of mail because Dixon failed to raise a genuine dispute of material

fact as to whether he properly exhausted administrative remedies or whether

administrative remedies were effectively unavailable to him. See Woodford v.

Ngo, 548 U.S. 81, 90 (2006) (“[P]roper exhaustion of administrative remedies . . .

means using all steps that the agency holds out, and doing so properly (so that the

agency addresses the issues on the merits).” (emphasis, citation, and internal

quotation marks omitted)); Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir.

2015) (a prisoner who does not exhaust administrative remedies must show that

                                           2                                     15-16728
“there is something particular in his case that made the existing and generally

available administrative remedies effectively unavailable to him . . . .”).

      We do not consider documents not filed with the district court. See United

States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).

      We do not consider issues or arguments not specifically and distinctly raised

in the opening brief or arguments and allegations raised for the first time on appeal.

See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      All pending motions and requests are denied.

      AFFIRMED.

                                           3                                  15-16728


996 So.2d 659 (2008)
BOYD RACING, LLC d/b/a Delta Downs Race Track & Casino
v.
Rufus R. FRUGE as Director of Calcasieu Parish Sales and Use Tax Department.
No. 08-581.
Court of Appeal of Louisiana, Third Circuit.
November 5, 2008.
*661 Geneva Landrum, Louisiana Department of Revenue & Taxation, Baton Rouge, LA, for Defendant-Appellee, Louisiana Department of Revenue and Taxation.
Benjamin Wakefield Mount, Bergstedt & Mount, Lake Charles, LA, Jaye A. Calhoun, Michael H. Rubin, Paul Slocomb West, Juliann Louise Keenan, McGlinchey Stafford, PPLC, Baton Rouge, LA, for Plaintiff-Appellant, Boyd Racing, LLC.
Russell Joseph Stutes Jr., Stutes & Lavergne, LLC, W. Todd Fontenot, Fontenot & Fontenot, Lake Charles, LA, for Defendant-Appellee, Calcasieu Parish Sales and Use Tax Department Louisiana Department of Revenue and Taxation.
Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
PICKETT, Judge.
The appellant in these consolidated cases, Boyd Racing, LLC, appeals a judgment of the trial court finding that Delta Downs Race Track & Casino is not exempt from sales taxes for purchases made in connection with its expenditures related to its slot machine casino and hotel projects.

STATEMENT OF THE CASE
Boyd Racing operates Delta Downs Race Track & Casino in Vinton, Louisiana. In 1997, the legislature passed the Pari-Mutual Live Racing Facility Economic Redevelopment and Gaming Act (the Act). La.R.S. 27:351, et seq. This legislation allowed Delta Downs to operate a slot machine casino on the premises of the horse racing track with the approval of the voters of Calcasieu Parish. Following voter approval, Delta Downs opened its slot machine casino in February 2002.
On November 21, 2003, Boyd Racing filed a lawsuit in Calcasieu Parish to recover sales and use taxes assessed by the Calcasieu Parish Sales and Use Tax Department (Calcasieu Parish) and paid by Boyd Racing under protest (Docket number XXXX-XXXX). Boyd Racing claimed it was not required to pay sales and use taxes on the materials it purchased in conjunction with the renovation of its premises and construction and furnishing of the slots casino, restaurants, stores, and hotel. Calcasieu Parish alleged these taxes were due on purchases made from January 1, 1999 through July 31, 2002. Boyd Racing argued that La.R.S. 4:168 excluded these purchases from the sales and use taxes imposed by the state.
Louisiana Revised Statutes 4:168 appears in Chapter 4 of Title 4, which governs horse racing in this state. It states:
The license fees, commissions, and taxes imposed in this Part are in lieu of all other such licenses, sales, excise and occupational taxes to the state or to any parish, city, town, or other political subdivision thereof.
On December 28, 2005, the Louisiana Department of Revenue and Taxation (LDR), through its Secretary Cynthia Bridges, filed a suit in Calcasieu Parish to recover the general state sales tax for similar purchases made by Boyd Racing between July 1, 2002 and August 31, 2005, as well as interest and attorney fees (Docket number XXXX-XXXX). On April 19, 2006, the trial court consolidated the two suits.
On December 16, 2003, Boyd Racing had filed suit against LDR in East Baton *662 Rouge Parish seeking to recover the general state sales tax and interest thereon that Boyd Racing paid under protest following an administrative determination that the taxes were in fact owed. LDR assessed these sales taxes for the period June 1, 2001 through June 30, 2002. On May 31, 2006, the case was transferred to Calcasieu Parish (Docket number 2006-2888). On June 30, 2006, the trial court consolidated this suit with the first two.
Boyd Racing, Calcasieu Parish, and LDR all filed motions for summary judgment in the first two suits. The trial court heard the motions in open court on June 6, 2002. On June 15, 2006, the trial court found that La.R.S. 4:168 did not apply to the purchases made for the slot machine casino in open court, and signed a judgment granting partial summary judgment to Calcasieu Parish and LDR on October 10, 2006.
On September 1, 2006, after the trial court ruled on the motions for summary judgment and before the judgment was signed, Boyd Racing filed a petition seeking to recover sales and use taxes, interest, and penalties assessed by Calcasieu Parish and paid under protest for the period between January 1, 2002 and August 31, 2005 (Docket number XXXX-XXXX). This suit was consolidated with the other three. In its answer to the suit, Calcasieu Parish sought attorney fees.
On December 17, 2007, the trial court held a hearing to determine if Calcasieu Parish could assess penalties in the fourth matter and whether an award of ten percent in attorney fees to Calcasieu Parish and LDR was excessive. The trial court found in favor of Calcasieu Parish and LDR on both issues. The trial court signed a judgment in conformity with its decision on January 25, 2008. The trial court also made clear that its ruling granting partial summary judgment applied to all four cases. The judgment included an allocation method for taxable and nontaxable transactions which was agreed upon by the parties.
Boyd Racing now appeals the judgment of the trial court.

ASSIGNMENTS OF ERROR
The appellant, Boyd Racing, asserts four assignments of error:
1. The trial court failed to correctly interpret La.R.S. 4:168 by failing to conclude that the statute relieves Delta Downs Racetrack and Casino from paying state and parish use/sales tax on all purchases.
2. The trial court erred by failing to determine the ten percent attorney fees on each consolidated case were excessive.
3. The trial court erred by failing to determine that the attorney fees imposed for legal work done on behalf of Calcasieu Parish were in contravention of Rule 5.4(a) of the Rules of Professional Conduct.
4. The trial court erred in failing to determine that the penalties assessed by Calcasieu Parish for the second audit were unreasonable and unlawful.

DISCUSSION

Application of Louisiana Revised Statute 4:168
An appellate court reviews judgments granting a motion for summary judgment using a de novo standard of review. Gray v. Am. Nat. Prop. & Cas. Co., 07-1670 (La.2/26/08), 977 So.2d 839. Likewise, the proper interpretation of a statute is a question of law which is reviewed on appeal de novo. Cleco Evangeline v. Louisiana *663 Tax Com'n, 01-2162 (La.4/3/02), 813 So.2d 351.
Louisiana Revised Statutes 4:168 appears in Chapter 4, Part I of Title 4. This part, titled "Horse Racing," creates and empowers the state racing commission to govern horse racing and sets licensing and wagering requirements and rules. The statute also sets licensing fees payable to the state and the parish for those involved in the conduct of the races and for the holding of races, a per person attendance tax, and taxes on the wagering pools. Louisiana Revised Statutes 4:168 states:
The license fees, commissions, and taxes imposed in this Part are in lieu of all other such licenses, sales, excise and occupational taxes to the state or to any parish, city, town, or other political subdivision thereof.
Boyd Racing argues that as the operator of a horse racing facility, it is excused from paying state and parish sales and use taxes, even on the construction and operation of a slot machine casino. Calcasieu Parish argues that the slot machine casino and hotel, which were authorized under Title 27 of the Revised Statutes, are distinct from the horse racing facility and that Boyd Racing is required to pay the sales and use taxes for purchases made.
By its own terms, La.R.S. 4:168 creates a trade-off for horse racing facilities. In exchange for the payment of the taxes and fees imposed for its horse racing activities, the facilities do not have to pay state and local use taxes. In this respect, we find the language of the statute determinative of the issue before us. The statute specifically says that the fees "imposed in this Part are in lieu of" state and local sales and use taxes.
The statute allowing the horse racing facilities to operate slot machine casinos appears in Title 27. In furtherance of the legislation's stated goals of furthering the horse breeding industry, the statute does provide for significant contributions to the purses for horse races and to horsemen's groups from the net proceeds of the slot machine casino. But Title 27 contains no trade-off provision similar to La.R.S. 4:168. The Act did not create any new burdens for Boyd Racing under Title 4, Chapter 4, Part I. As such, we find that La.R.S. 4:168 does not apply to excuse Boyd Racing from paying sales and use taxes associated with the operation of a slot machine casino authorized under Revised Statutes Title 27.
Boyd Racing argues that the same rationale for allowing the taxes paid under the horse racing laws to offset the sales and use taxes normally paid to state and local governments exists in the statute allowing a slot machine casino at a race track. Boyd Racing points out that the taxes imposed on its slot machine casino are significantly higher than those paid by other casinos in the state, and that eighteen percent of its net proceeds from the casino are required to be paid in some way to the horse racing industry. These higher taxes, it argues, should be offset by excusing them from the payment of state and local sales and use taxes. We disagree.
Finally, Boyd Racing argues that the horse racing facility and the slot machine casino at Delta Downs should not be considered two separate entities. Instead, it argues that the slot machine casino can only operate at Delta Downs because it is a horse racing facility. Thus, it argues La.R.S. 4:168 should be read to offset all purchases made by Boyd Racing, whether they are racing related or not, because without the racing facility there would be no non-racing purchases. Again, we disagree. We find that the Act allowed Delta Downs to operate a slot machine casino *664 at the situs of its racetrack, but enacted an entirely new set of regulations for operating the slot machine casino, specifically with regard to the taxes and fees which had to be paid for the operation of the slot machines. In defining those taxes and fees, the legislature did not create an offset similar to La.R.S. 4:168, and we will not create one.

Attorney Fees
Boyd Racing argues in its second and third assignments of error that the attorney fees awarded in this case are excessive. First, it argues that the attorney fees are excessive because the final amount awarded does not take into account the fact that Calcasieu Parish and LDR had the same attorneys. The statute allowing the award of attorney fees to the state is La.R.S. 47:1512, which states:
The collector is authorized to employ private counsel to assist in the collection of any taxes, penalties or interest due under this Sub-title, or to represent him in any proceeding under this Sub-title. If any taxes, penalties or interest due under this title are referred to an attorney at law for collection, an additional charge for attorney fees, in the amount of ten per centum (10%) of the taxes, penalties and interest due, shall be paid by the tax debtor.
Similarly, Calcasieu Parish Tax Ordinance Section 6.09 states:
DELINQUENT INTEREST AND PENALTIES. If the amount of tax due by the dealer is not paid on or before the twentieth (20th) day of the month next following the month for which the tax is due, there shall be collected with said tax, interest upon said unpaid amount at the rate of one and one-quarter (1 1/4%) percent per month, or fractional part thereof. In addition, there shall be collected a penalty equivalent to five (5%) percent per month, or fraction thereof, not to exceed twenty-five (25%) in aggregate, of the tax due, when such tax is not paid on or before the twentieth (20th) day of the month next following the month for which the tax is due. Both interest and penalty will be computed from the first day of the month next following the month for which the tax is due. In the event of suit, attorney's fees will be charged the dealer at the rate of ten (10%) percent of the aggregate of tax, interest and penalty. All interest and penalties due for subsequent months will be assessed and due as of the first day of each succeeding month. The District Attorney is authorized to employ private counsel to assist in the collection of any sales and use taxes, penalties or interest due under this Ordinance, or to represent him in any proceeding under this Ordinance.
The ten percent fee imposed by the court is statutory, but the supreme court has held that the fee must be reasonable. City of Baton Rouge v. Stauffer Chemical Co., 500 So.2d 397 (La.1987). "A trial court has much discretion in fixing attorney fees, and its award will not be modified on appeal, absent an abuse of discretion." J. Ray McDermott, Inc. v. Morrison, 96-2685, p. 4 (La.App. 1 Cir. 11/7/97), 702 So.2d 364, 367, writs denied, 97-3061, 97-3063 (La.2/13/98), 709 So.2d 754.
The trial court heard evidence about the contingency nature of the attorney fees awarded to the state and the amount of work done in the case. The trial court also heard evidence from an expert in commercial litigation regarding the reasonableness of the fee. This evidence supports the findings of the trial court. We find no abuse of discretion on the part of the trial court.
Boyd Racing also argues that Calcasieu Parish was charged on an hourly *665 basis by its attorneys (for a total of about $90,000.00, according to the transcript), and if it is allowed to collect the full ten percent of the taxes, interest and penalties (about $270,000.00), Calcasieu Parish will receive a windfall. It also argues that Calcasieu Parish cannot share attorney fees with the attorney, as such an arrangement would be a violation of Rule 5.4(a) of the Rules of Professional Conduct. We have found no abuse of discretion in the trial court's award of attorney fees, and these arguments do not change our determination. The language of the statute allows Calcasieu Parish to recover attorney fees of ten percent of the taxes, interest and penalties, regardless of the actual compensation for the attorney, as long as such an amount is reasonable. "Liability for these attorney's fees does not depend upon whether the fees have been incurred in a collection case or in defense of a taxpayer's suit for a refund." Lake Charles Memorial Hosp. v. Parish of Calcasieu, 98-519, p. 6 (La.App. 3 Cir. 12/9/98), 728 So.2d 454, 457, writ denied, 99-71 (La.3/12/99), 739 So.2d 213. The attorney fee in such a case is awarded to the parish directly for the purpose of hiring an attorney. We will not comment on whether Rule 5.4(a) is implicated in this case since this court lacks the authority to determine whether there has been a violation of the Rules of Professional Conduct.

Penalties
Finally, Boyd Racing argues that it should not be required to pay penalties in lower court docket number XXXX-XXXX, asserting a good faith defense. This court has repeatedly held that a good faith defense is not available in tax delinquency cases, given the supreme court's decision in St. John the Baptist Parish School Board v. Marbury-Pattillo Construction Co., Inc., 259 La. 1133, 254 So.2d 607 (1971). See Mercury Cellular Tel. Co. v. Calcasieu Parish, 00-318 (La.App. 3 Cir. 12/13/00), 773 So.2d 914, writ denied, 01-126 (La.3/16/01), 787 So.2d 314; Lake Charles Memorial Hosp., 728 So.2d 454. We find that the narrow exception to this rule articulated in BP Oil Co. v. Plaquemines Parish Government, 93-1109 (La.9/6/94), 651 So.2d 1322, is inapplicable in the instant case.

CONCLUSION
The judgment of the trial court is affirmed. Costs of this appeal are taxed against Boyd Racing, LLC.
AFFIRMED.


In the Gunited States Court of Federal Claims

No, 19-1354T

(Filed: January 16, 2020)

(NOT TO BE PUBLISHED)
)
SIMOUANG THOUNSAVATH, J
)
Plaintiff, )
)
V. )
)
UNITED STATES, )
)
Defendant, )
)

Simouang Thounsavath, pro se, Providence, Rhode Island.

Margaret E. Sheer, Trial Attorney, Court of Federal Claims Section, Tax Division, United
States Department of Justice, Washington, D.C. With her were Richard E. Zuckerman, Principal
Deputy Assistant Attorney General, David I. Pincus, Chief, Court of Federal Claims Section, and
G. Robson Stewart, Assistant Chief, Court of Federal Claims Section, Tax Division, United
States Department of Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Senior Judge.

Plaintiff, Simouang Thounsavath, alleges that his “assets [were taken] without
{jlurisdiction.” Compl. at 1, Plaintiff's complaint references an Order of Dismissal for Lack of
Jurisdiction from the United States Tax Court, attached to plaintiffs complaint, where the Tax
Court determined that it lacked jurisdiction to hear a similar suit from plaintiff, because “no
notice of deficiency or notice of determination was issued to petitioner for taxable years 2018
and 2019 that would permit petitioner to invoke the [c]ourt’s jurisdiction.” Compl. Ex, A at 1.
As compensation, plaintiff seeks $450,000. Compl. Ex. B at 1. Pending before the court is
defendant’s motion to dismiss pursuant to Rule 12(b)(1) of the Rules of the Court of Federal
Claims (“RCFC”) for lack of subject-matter jurisdiction.

Because this court lacks subject-matter jurisdiction, Mr. Thounsavath’s claims must be
DISMISSED.

BACKGROUND

Mr. Thounsavath’s complaint is relatively concise, stating only that “Defendant took all
Plaintiff]’s] Assets without Jurisdiction, Please see attach[ed] exhibit ‘A,’” and “Defendant took
Plaintiff[’s] assets without Jurisdiction from Plaintiff.” Compl. at 1, 2 (capitalization in
original), Exhibit A is an order of dismissal from the United States Tax Court for a case before
that court filed by Mr. Thounsavath. In that case, plaintiff sought to dispute a Notice of
Deficiency and Notice of Determination Concerning Collection Action submitted by the Internal
Revenue Service (“IRS”). Def.’s Mot. to Dismiss (“Def.’s Mot.) Ex. A at 1, ECF No. 8.
Because the Tax Court determined that the IRS had not issued a notice of deficiency or
determination regarding plaintiff's claims, the court dismissed the case for lack of jurisdiction.
Compl. Ex. A at 1. Plaintiff relies on the Tax Court’s dismissal of his claims for lack of
jurisdiction to form the basis for his claim here that the government lacks jurisdiction to assess
taxes against him.

STANDARDS FOR DECISION

The Tucker Act provides this court with jurisdiction to entertain “any claim against the
United States founded either upon the Constitution, or any Act of Congress or any regulation of
an executive department, or upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The
Tucker Act does not grant a plaintiff substantive rights. J re United States, 463 F.3d 1328, 1333
(Fed, Cir, 2006). Rather, to establish jurisdiction, “a plaintiff must identify a separate source of
substantive law that creates the right to money damages.” Misher v. United States, 402 F.3d
1167, 1172 (Fed. Cir. 2005) (en banc in relevant part) (citing United States v. Mitchell, 463 U.S.
206, 216 (1983); United States v. Testan, 424 U.S. 392, 398 (1976)). “Where the court has not
been granted jurisdiction to hear a claim, the case must be dismissed.” Trevifio v. United States,
113 Fed, Cl. 204, 207 (2013) (citing Arbaugh y. ¥ & H Corp., 546 U.S. 500, 514 (2006))}. As
plaintiff, Mr. Thounsavath must establish jurisdiction by a preponderance of the evidence.
Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir, 2011) (citing Reynolds
v. Army & Air Force Exch. Serv,, 846 F.2d 746, 748 (Fed, Cir, 1988)).! “Ifa court lacks
jurisdiction to decide the merits of a case, dismissal is required as a matter of law.” Gray v.
United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514
(1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir, 1985)); see also RCFC 12(h)G)
(“If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.”).

‘A court may “grant the pro se litigant leeway on procedural matters, such as pleading
requirements.” MeZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007) (citing
Hughes v, Rowe, 449 U.S. 5, 9 (1980) (“An unrepresented litigant should not be punished for his
failure to recognize subtle factual or legal deficiencies in his claims.”)). But this leniency cannot
extend to lessening jurisdictional requirements. See Kelley v. Secretary, United States Dep’t of
Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987) (“[A] court may not... take a liberal view of . . .
jurisdictional requirement[s] and set a different rule for pro se litigants only.”).

ANALYSIS

The government posits three main arguments as to why this court lacks jurisdiction.
First, the government argues that Mr. Thounsavath “confuses the Tax Court’s ability to hear a
case, viz., the Tax Court’s jurisdiction, with the government’s ability to collect taxes.” Def.’s
Mot. at 4. Second, the government contends that jurisdiction over Mr. Thounsavath’s claims
contesting its authority to assess taxes “is reserved specifically to the federal district courts.” /d.
at 5 (citing 26 U.S.C. §§ 7432, 7433) (other citations omitted). Lastly, the government asserts
that plaintiff has “fail[ed] to meet the jurisdictional requirements of [26 U.S.C.] § 7422(a).” id.

On each of these points, the government’s arguments are persuasive. While the Tucker
Act does provide this court with jurisdiction to hear suits for refimds of federal taxes, actions
involving the improper assessment of liens or unauthorized collection actions by the IRS may
only be heard in federal district courts. See 26 U.S.C. $§ 7432, 7433. Further, the Tax Court’s
order dismissing Mr, Thounsavath’s case at that court “was not a ruling on the merits of his
claim or the propriety of the taxes assessed or of the IRS’ attempt to collect those taxes.”
Patterson v. United States, No. 19-843T, 2019 WL 4053952 at *4 n.8 (Fed. Cl. August 27,
2019). Instead, the Tax Court was merely ruling on whether it had the authority to hear Mr,
Thounsavath’s claims. Thus, Mr. Thounsavath’s argument that the government lacked
jurisdiction to assess taxes against him does not state a claim over which this court has
jurisdiction. See Lovett vy. United States, 145 Fed. Cl, 175, 179 (2019).

Further, plaintiff has failed to satisfy the jurisdictional requirements of 26 U.S.C. §
7422(a). Particularly, plaintiff has not filed a “claim for refund or credit” for either 2018 or
2019, as required by the statute. Id. Additionally, the government notes that it has “no record
that plaintiff ever filed a federal personal income tax return, let alone a return claiming a refund
ot a separate administrative claim for refund.” Def.’s Mot. at 5, Asa result, plaintiff's claims
are not within this court’s jurisdiction.

CONCLUSION

For the reasons stated, the government’s motion to dismiss Mr. Thounsavath’s complaint.
is GRANTED. The court lacks subject-matter jurisdiction over Mr. Thounsavath’s claims, The
complaint shal! be DISMISSED without prejudice. The clerk is directed to enter judgment
accordingly.

No costs.

It is so ORDERED. 77

Charles F, Lettow
Senior Judge