821 F.Supp. 601 (1992)
CABO DISTRIBUTING CO., INC. and Black Death USA, Plaintiffs,
v.
Nicolas BRADY, et al., Defendants.
No. C-92-2591 DLJ.
United States District Court, N.D. California.
October 22, 1992.
*602 *603 George G. Weickhardt of Adams, Duque & Hazeltine, San Francisco, CA, for plaintiffs.
Peter Modlin, U.S. Dept. of Justice, Washington, DC, for defendants.

ORDER
JENSEN, District Judge.
On September 18, 1992, the Court heard plaintiffs' motion for summary judgment and defendants' motion to dismiss or, in the alternative, for summary judgment. At the hearing, George G. Weickhardt of Adams, Duque & Hazeltine appeared for plaintiffs and Peter Modlin of the Department of Justice appeared for defendants. Having considered the papers submitted and the arguments of counsel, the Court GRANTS plaintiffs' motion for summary judgment and DENIES defendants' motion to dismiss or for summary judgment for the following reasons.

BACKGROUND
The facts of this case are complex and have been described in detail in this Court's order dated July 22, 1992, 821 F.Supp. 582, setting forth the basis of the preliminary injunction it entered on July 10, 1992. Much of the factual background is repeated here for completeness.
This is an action over the right to sell vodka under the label "Black Death Vodka." Plaintiff Black Death USA is a California corporation which owns all rights to "Black Death Vodka." Plaintiff Cabo Distributing Company, Inc. ("Cabo") is a California corporation which imports and distributes the vodka. See Declaration of Federico Cabo, ¶¶ 1, 3 [hereinafter "Cabo Declaration"]. Defendants are the United States Department of the Treasury, the Bureau of Alcohol, Tobacco and Firearms ("BATF" or "Agency"), and officials of these agencies.

A. Development of "Black Death Vodka".

"Black Death Vodka" was originally made by the Sigurdsson family in Iceland in the early 1900's. See Cabo Declaration, ¶ 5. The name "Black Death" apparently is a translation of a colloquial name for vodka used in Iceland and Scandinavia and does not refer to the plague which ravaged Europe from 1347 into the Nineteenth Century. Id. ¶¶ 5-6. According to one of the declarations submitted to the Court, the name developed during Iceland's prohibition era. When people would drink excessive quantities of bootleg vodka, they would sometimes fall in the street and lay there in a drunken stupor. Remaining there for hours or days, these derelicts would appear to be dead to passersby. The name "black death" was used to describe the bootleg distilled spirits which caused this maudlin condition. See Declaration of Terry Cates, ¶ 10 [hereinafter "Cates Declaration"] (recounting explanation told to him by Thomas Lines of Cabo Distributing Company).
The Sigurdsson family recipe emerged from the shadows of Icelandic anonymity in 1975 when Valgier Tomas Sigurdsson moved to Europe. Cabo Declaration, ¶ 6. He began to produce "Black Death Schnapps" in 1985 and "Black Death Vodka" in 1986. Id. Winning several international awards for quality, Sigurdsson was selling "Black Death Vodka" in over forty countries within a few years. Id. ¶¶ 6-7. In every country where it is sold, the "Black Death" label is used. Id. ¶ 7.
In 1989, Cabo acquired the right to import "Black Death Vodka" into the United States. Id. ¶ 8. Pursuant to federal law, Cabo applied to the BATF for approval of the label. Three applications were submitted to the BATF: one for labels on single liter bottles, one for labels on 750 milliliter bottles, and one for labels on 50 milliliter bottles. See id.; Applications for and Certification/Exemption of Label/Bottle Approval, submitted July 20, 1989 (Exhibits B-D to Cabo Declaration). After reviewing these applications, the *604 BATF approved the "Black Death" labels on June 24, 1989. Id.
All of the labels are substantially the same. On the front of the bottle, the words "Black Death Vodka" appear in large type surrounding a grinning skull wearing a top hat.[1] On the rear of the bottle, there is a mandatory government warning regarding the dangers of alcohol consumption and the statement "Don't Drink and Drive." See id.
Once the labels were approved, Cabo began to promote and market "Black Death Vodka" in the United States. Between July 1, 1989 and April 1, 1992, Cabo Distributing Company spent over $1 million promoting and marketing the vodka.[2]Id. ¶¶ 11-12. In this promotional campaign, Cabo apparently targeted young alcohol drinkers by using such techniques as selling bottles in miniature coffins and associating the vodka with slogans such as "Drink in Peace." See Letter from United States Surgeon General Antonio Novello to William Earle at BATF, dated July 2, 1992 (attached to Exhibit G to Declaration of George G. Weikhardt); Wall Street J., Apr. 3, 1992, at B1 ("Lines [at Black Death USA] agrees that the vodka has a youthful target market"). In addition, Cabo hired Saul Hudson, who is also known as "Slash" in his role as lead singer of the musical quartet "Guns 'n Roses," to promote "Black Death Vodka." See Cabo Declaration, ¶ 12. These marketing efforts were successful, and by the beginning of 1992, the spirits were being distributed by Cabo in California, Illinois, Pennsylvania, Maryland, Florida, New Jersey, and New Mexico.[3]See Cabo Declaration, ¶ 11.
On April 1, 1992, Federico Cabo incorporated Black Death USA for the purpose of purchasing the rights to "Black Death Vodka" from Valgier Sigurdsson. Sigurdsson agreed to sell the rights to the vodka for approximately $3.3 million, of which $550,000 in cash was paid in April and $2.75 million was guaranteed in royalties. See Cabo Declaration, ¶ 12. Although a copy of the agreement has not been submitted to the Court, plaintiffs assert that the royalty payments are guaranteed regardless of how much vodka is actually sold. Id. Plaintiffs assert that this purchasing decision, as well as the money invested in the advertising campaign, was made in reliance on the BATF's approval of the "Black Death" labels. Id. ¶ 11.

B. Revocation of the "Black Death" Label.

In early 1992, plaintiffs' advertising campaign began to concern members of the health care community and of the public that "Black Death Vodka" was improperly encouraging alcohol abuse on the part of young people. Among others, the United States Surgeon General, Antonia Novello, made statements on the "Today Show" in which she criticized plaintiffs' decision to market the vodka to young people. See Wall Street J., Apr. 3, 1992, at B1 (Exhibit J to Cabo Declaration). When the BATF learned of this criticism of "Black Death Vodka," it decided to reexamine its approval of the label. See Cates Declaration, ¶ 12 ("... while we were looking at the label in and of itself, we were aware of the publicity surrounding the product, and this may have played a role in our decision to take a second look at the label."). Terry Cates, who is Chief of the Industry Compliance Division of the BATF, was quoted in the Wall Street Journal as stating that "[h]ad we known the direction of the point-of-sale advertising was going to take, I submit we wouldn't have approved [the label]." Wall Street J., Apr. 3, 1992, B3.
*605 On April 1, 1992, Terry Cates sent a letter to Federico Cabo regarding the label. The letter stated that the BATF had "reexamined the matter" and decided that the labels were in violation of BATF regulations; plaintiffs were given ten days to stop selling vodka under the "Black Death" label.
Cates stated that the labels violated the regulations in two ways. First, he stated that the reference to the Black Death, which "was a plague which killed millions of people," combined with the skull image, created an impression "that the product is inherently unsafe for human consumption at any level." See Letter from Terry Cates to Federico Cabo, dated Apr. 1, 1992, at 2 (Exhibit G to Cabo Declaration).
Second, Cates stated that the label "mocks the real health risks which may result from the consumption of alcohol by making an obviously false claim about the dangers of alcohol consumption." Id. This parody had the "overall effect of undermining the effect of the Surgeon General's warning on the label of the vodka. Id.
The Bureau stated that its decision to revoke approval of the label was based on its authority pursuant to the Federal Alcohol Administration Act ("FAA Act"), 27 U.S.C. § 205(e). This statute authorizes the BATF to promulgate regulations of alcoholic beverage labels which will "prohibit deception of the consumer." The BATF's regulations require the Bureau to reject labels which "convey[] erroneous impressions as to the age, origin, identity, or other characteristics of the product." 27 C.F.R. § 5.34(a). According to Cates, the "Black Death" label mislead the consumer into thinking either (or both) that the vodka was poison or that there are no substantial risks associated with the consumption of alcohol. Letter from Terry Cates to Federico Cabo, dated Apr. 1, 1992, at 2 (Exhibit G to Cabo Declaration). The latter message also had the effect of undermining the message contained in the Surgeon General's warning printed on the rear label. Id.
Plaintiffs arranged to meet with the government regulators on April 7, 1992 in Washington, D.C. At this meeting, plaintiffs were represented by Federico Cabo, Thomas Lines, and James Cooper, who were all shareholders and directors of Black Death USA, and George Weickhardt, their attorney. The Bureau was represented by Terry Cates, John J. Manfreda, who is the Associate General Counsel of the BATF, Candace Moberly, who is the Chief of the Product Compliance Branch, and others.
In their discussion of the April 1 letter, the Bureau officials stood by their reasoning that the "Black Death" label was misleading. They stated that they had made this decision without reference to any consumer survey, but rather on their administrative expertise in determining whether a label is misleading on its face. See Cates Declaration, ¶¶ 8-9; Cabo Declaration, ¶ 16. Plaintiffs stated that they believed the Bureau was not justified in revoking approval of the labels and that they wanted more time to respond to the letter. Cates Declaration, ¶ 7. The Bureau agreed to postpone their revocation of the labels until June 11, 1992 in order to give plaintiffs time "to provide written arguments and evidence to show that the [label approvals] should not be cancelled"; this extension was confirmed in an April 8 letter. See id. ¶ 13; Letter from Terry Cates to Federico Cabo, dated April 8, 1992 (Exhibit J to Cabo Declaration).
The parties met a second time on April 30 to discuss revocation of the label approval. At this meeting, plaintiffs were represented by Cabo and Lines and the Bureau was represented by Cates, Moberly, and a BATF staff attorney. According to the Bureau, plaintiffs approached this meeting with an eye to negotiating a settlement of the dispute rather than setting up litigation. See Cates Declaration, ¶ 14 ("At the outset of this meeting, Mr. Lines noted that they had not brought their counsel to this meeting, and that they hoped that this matter could be resolved without resorting to expensive and time-consuming litigation."); see also Cabo Declaration, ¶¶ 18-19.
Plaintiffs offered to do three things to correct any misconceptions created by the "Black Death" label. First, they offered to put a qualifying statement on the back of the bottles explaining that "Black Death Vodka" *606 was not associated with the bubonic plague and encouraging consumers not to drink and drive. See Cabo Declaration, ¶ 18; Exhibit K to Cabo Declaration (text of proposed statement). Second, they offered to include a warning against alcohol abuse and underage drinking in future advertising. See Cabo Declaration, ¶ 19; Exhibit L (text of proposed statement). Third, they offered to distribute copies of "Black Death's Survival Guide" to "social hosts and hospitality professionals." This pamphlet would provide information about the health effects of alcohol abuse and make suggestions about how to identify underage drinkers. See Cabo Declaration, ¶ 19; Exhibit M (draft of the pamphlet).
The Bureau officials rejected these offers. According to Cates, plaintiffs were told that such efforts would be laudable in and of themselves but would be insufficient to overcome the negative impressions created by the label. See Cates Declaration, ¶ 15. The Bureau claims that its decision was not yet final at this point, however, and that they would continue to consider offers from plaintiffs. Id. ¶ 16. A temporary license was issued by the Bureau in order to permit plaintiffs to sell off existing stocks of vodka bottled under the "Black Death" label; plaintiffs were given until September 11, 1992 to do so. See Cabo Declaration, ¶¶ 20, 24; Exhibits S-T to Cabo Declaration (temporary permits); Declaration of Candace Moberly, ¶¶ 16-19 [hereinafter "Moberly Declaration"].
Plaintiffs present a different account of the meeting. They state that Cates rejected these offers out of hand, and told them that "Whatever you say doesn't make any difference to me. Your label is dead. I have already decided to cancel it." See Cabo Declaration, ¶ 20. Plaintiffs also claim that Cates told them that the Bureau had already made its final decision on the labels and that further papers would be futile. Id. Cates allegedly also backed off the Bureau's claim that consumers would believe that the vodka was associated with the bubonic plague, and stated that the Bureau's problem with the label focused around the term "Death." Id.
Once the Bureau had rejected the offer of corrective labelling and advertising, the parties began to discuss alternative names for the product. Plaintiffs stress in their papers that they only began to suggest alternative names when it became clear that the BATF would not permit them to continue using the name "Black Death Vodka." Lines suggested that the name "Black Hat" could be used. When the Bureau received applications for labels under that name on May 8, 1992, they were approved.
Plaintiffs allege that this entire process violated their rights under the Administrative Procedure Act ("APA") and the Constitution by revoking the approval without cause. They claim that the BATF made its decision before receiving any input from them, both before April 1 and before April 30. This early regulatory decision came in spite of the fact that plaintiffs never waived any of their rights to the name "Black Death."
The Bureau apparently believed, on the other hand, that the parties had settled the dispute in the April 30, 1992 meeting. This is reflected in statements by Candace Moberly, the expedited approval of the "Black Hat" label, and plaintiffs failure to actually submit anything in writing prior to June 11, 1992.
Sometime in June, plaintiffs began to have second thoughts about their situation. Although they had received approval for "Black Hat," plaintiffs came to the conclusion that they needed to continue to use the "Black Death" label. First, plaintiffs concluded that consumers would be unable to identify the new vodka as being the same vodka sold under the "Black Death" label. There is an assertion in one of the declarations that the BATF would not permit the new "Black Hat" labels to state that the product was formerly sold under the "Black Death" label. Cabo Declaration, ¶ 31. Second, plaintiffs claim that V.T. Sigurdsson refused to put his name on any bottles without the name "Black Death." Third, plaintiffs assert that under the purchase agreement in which they acquired the "Black Death" name from Sigurdsson, they are required to only sell the vodka under the name "Black Death."
*607 Apparently the real reason for the reassessment is the fact that "Black Death Vodka" sales have begun to skyrocket. Due to the publicity surrounding the decision of the BATF in this case, "Black Death Vodka" sales have reportedly jumped significantly, with Cabo now pushing for nationwide distribution of the vodka and the introduction of "Black Hat Tequila," which would feature a smiling skull wearing a sombrero. See Montreal Gazette, May 17, 1992, at B5; London Guardian, May 13, 1992 (both attached to BATF Final Decision).
Whatever the reason, plaintiffs petitioned the BATF for reconsideration of their decision in June. The Bureau refused and issued a "final decision" on July 6, 1992. See Exhibit G to Weickhardt Declaration. When plaintiffs received this document, they filed an action for to temporarily enjoin defendants from revoking the certificate of label approval ("COLA").
On July 10, 1992, this Court issued a preliminary injunction prohibiting the BATF from revoking plaintiffs' certificates of label approval. Plaintiffs now bring this motion for summary judgment. Defendants bring cross-motions to dismiss, or in the alternative, for summary judgment.

DISCUSSION

A. Legal Standards.

1. Summary Judgment Standard.

Rule 56 governs motions for summary judgment. This rule states that summary judgment may be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(e).
In a motion for summary judgment, "[i]f the party moving for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrates the absence of any genuine issues of material fact," the burden of production then shifts so that "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" T.W. Electrical Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catreit, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1983); Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir.), cert. denied, 479 U.S. 949, 107 S.Ct. 435, 93 L.Ed.2d 384 (1986)) (emphasis in original).
On cross motions for summary judgment, the burdens faced by the opposing parties vary with the burden of proof they will face at trial. To succeed on summary judgment plaintiff must prove each element essential of the claims upon which it seeks judgment by undisputed facts. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (party with burden "must establish beyond peradventure all of the essential elements ..." (emphasis original)). In an influential article, Judge Schwarzer has phrased plaintiff's as follow: "Where the moving party has the burden [of proof at trial ...,] his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-488 (1984).
In contrast, defendant' motion for summary judgment faces a lighter burden. Because the defendant does not bear the burden of proof at trial, the defendant need only point to the insufficiency of the plaintiff's evidence to shift the burden to the plaintiff to raise genuine issues of fact as to each claim by substantial evidence. T.W. Electrical Service, Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987) citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1983); Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir.), cert. denied, 479 U.S. 949, 107 S.Ct. 435, 93 L.Ed.2d 384 (1986). If plaintiff fails to raise a genuine issues of fact, then summary adjudication in favor of the defendant will be granted.
*608 When judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and is required to draw all inferences in a light most favorable to the nonmoving party. T.W. Electrical, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir.1991). Regardless of who is the moving party, each party must "establish the existence of the elements essential to [its] case, and on which [it] will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552. The standard for judging a motion for summary judgment is the same standard used to judge a motion for a directed verdict: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).
In meeting their burdens of proof, each party must come forward with admissible evidence. Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49 (2nd Cir.1985); Thornhill Publishing Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979). Hearsay statements found in affidavits are inadmissible. See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir.1980). Plaintiffs must ultimately persuade the Court in opposing summary judgment that they will have sufficient admissible evidence to justify going to trial.

2. Motion to Dismiss Standard.

Motions to dismiss are governed by Federal Rule of Civil Procedure 12. Under Rule 12(b)(6), a defendant may seek to dismiss the complaint for "failure to state a claim upon which relief can be granted." The Court's analysis under Rule 12(b)(6) requires it to determine whether the facts alleged in the complaint would entitle the plaintiff to a legal remedy. As a primary objective of the legal system is to obtain a determination on the merits, rather than a dismissal based on the pleadings, motions to dismiss for failure to state a claim pursuant to Rule 12(b)(6) are generally viewed with disfavor. The Supreme Court has held that a complaint should not be dismissed unless it appears "beyond doubt" that plaintiff can prove no set of facts in support of the claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Thus, the question presented by a motion to dismiss is not whether plaintiff will prevail in the action, but whether she is entitled to offer evidence in support of her claim. Scheuer v. Rhodes, 416 U.S. 232, 235, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). In answering this question, the Court must assume that plaintiff's allegations are true and must draw all reasonable inferences in plaintiff's favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). Even if the face of the pleadings indicates that the chance of recovery is remote, the Court must allow plaintiff to develop her case at this stage of the proceedings. United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir.1981).
If the Court chooses to dismiss the complaint, it must then decide whether to grant leave to amend. In general, leave to amend is only denied if it is clear that amendment would be futile and "`that the deficiencies of the complaint could not be cured by amendment.'" Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987) (quoting Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980) (per curiam); see, Poling v. Morgan, 829 F.2d 882, 886 (9th Cir.1987) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)) (futility is basis for denying amendment under Rule 15).

B. Analysis.

1. Procedural Due Process.

Plaintiffs argue that the BATF's revocation of the "Black Death Vodka" label violated their right to procedural due process. In order for a person to enjoy the protection of *609 the Due Process Clause of the Fifth Amendment, he or she must have a protected life, liberty or property interest. See U.S. Const., amend. V ("No person shall ... be deprived of life, liberty, or property, without due process of law").

a. Protected Property Interest.

This Court in its July 19, 1992 order issuing a preliminary injunction stated that:
Certificates of label approval such as those in question here create property interests because they are given for a potentially unlimited period of time and because their continued existence is essential to plaintiffs' livelihood. As such, the licenses create "important interests" which cannot be "taken away without the procedural due process required by the [Fifth] Amendment." See Bell v. Burson [402 U.S. 535, 539] 91 S.Ct. 1586, 1589 [29 L.Ed.2d 90] (1971) (citing Sniadach v. Family Finance Corp. [395 U.S. 337] 89 S.Ct. 1820 [23 L.Ed.2d 349] (1969), and Goldberg v. Kelly [397 U.S. 254] 90 S.Ct. 1011 [25 L.Ed.2d 287] (1970)); Richardson v. Town of Eastover, 922 F.2d 1152, 1156-57 (4th Cir.1991).
The parties dispute whether the label "Black Death" is a property interest protected under the Due Process Clause. Plaintiffs argue that they have invested substantial time and money in promoting their brand name, "Black Death." They claim that "Black Death" is their trademark, and cite Stork Restaurant v. Sahati, 166 F.2d 348 (9th Cir.1948), in support of the proposition that a trademark is a protected property right.
Defendants, on the other hand, point out that a protected property interest exists only where the individual has a "legitimate claim of entitlement" to the property, Board of Regents v. Roth, 408 U.S. 564, 570, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972), not merely where there is an "action which will cause grievous loss of any kind." Plaintiffs' Motion for Summary Judgment Brief, at 13. Defendants argue that plaintiffs have no legitimate entitlement to a "Black Death" label because trademarks, which are protected under the Fifth Amendment, are entirely distinct from COLAs, which are not. Defendants' Opposition Brief, at 7.
The Court finds the defendants' argument unpersuasive. A trademark or trade dress is "one of the visible mediums by which a good is identified, bought or sold and known to the public." Coca Cola Bottling Co. v. Coca Cola Company, 269 F. 796 (D.C.Del.1920) (emphasis added). COLAs are certificates of label approval which enable parties to use certain labels on their bottles for purposes of identifying the product and informing consumers about the contents. Plaintiffs have clearly spent substantial amounts of time and money promoting their "Black Death Vodka" and building consumer recognition and goodwill in their label much like a trademark.[4] Ensuring adequate protection of plaintiffs' procedural rights is of particular concern in this case because plaintiffs have indisputably relied on the Government's previous approval of the label. Plaintiffs therefore have a legitimate entitlement to the label "Black Death," and are therefore afforded certain procedural protections under the Fifth Amendment.

b. Procedural Requirements to Ensure Due Process.

Given that COLAs are a protected property interest under the Due Process Clause, plaintiffs must next establish that the BATF violated the procedural requirements mandated by the Constitution. The procedural requirements of the Due Process Clause vary according to context. At an absolute minimum, due process requires that an agency give a person adequate notice that a decision is being considered and give that person an opportunity for a hearing. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 426, 102 S.Ct. 1148, 1153, 71 L.Ed.2d 265 (1982) (citing Mullane v. Central Hannover Bank & Trust Co., 339 U.S. 306, 311, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950)). Whether a person must be given additional procedural protections depends on the importance of the private interests, the length and finality of a deprivation of a protected interest, the likelihood *610 of government error, and the magnitude of the government interests involved. Id. 455 U.S. at 434, 102 S.Ct. at 1157 (citing cases).
There is some support for the idea that revocation of a government license requires the revoking agency to afford a hearing where the licensee can present evidence and confront and cross-examine adverse witnesses. See, e.g., Willner v. Committee on Character & Fitness, 373 U.S. 96, 102, 83 S.Ct. 1175, 1180, 10 L.Ed.2d 224 (1963); see also 4 Jacob Stein, Glenn Mitchell & Basil Mezines, Administrative Law, § 41.02, at 41-8 (1992). Plaintiffs are entitled to a formal adjudicatory hearing prior to cancellation of the COLAs where (1) they meet the test in Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 903, 47 L.Ed.2d 18; 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and (2) there are material facts in dispute. Plaintiff's Motion for Summary Judgment Brief, at 12-17; Defendant's Opposition Brief, at 8.
Specifically, Eldridge discusses three factors courts consider in determining whether an adjudicatory hearing is necessary: (1) the private interest that will be affected by the official action, (2) the risk of erroneously depriving the interest, and (3) the government's interest, including the fiscal and administrative burdens required by the additional procedural requirements.
Regarding the first factor, the plaintiffs convincingly argue that the private interest that will be affected by the official action is substantial, especially when one considers that the economic viability of plaintiffs' business may depend on the label "Black Death Vodka." Defendants respond that "plaintiffs are not being deprived of the right to engage in the business of importing or selling their vodka.... [They] remain free to do so under a differently designed label. Plaintiffs would have the Court believe that without the `Black Death' label, they face immediate financial ruin."
The Court finds the defendants' argument unconvincing. The economic viability of the plaintiffs' business depends on their use of the name "Black Death Vodka." They have developed substantial name recognition and goodwill in their label and while plaintiffs may not face "immediate financial ruin," it is likely that sales will decrease and plaintiffs will suffer significant economic injury if they cannot import and sell vodka using the "Black Death" label. The sales of "Black Death Vodka" have recently skyrocketed due to plaintiff's advertising investments and at least in part, the publicity surrounding the BATF's decision in this case.
The second factor of Eldridge concerns the fairness and reliability of the existing pretermination procedures and the probable value, if any, of additional procedural safeguards. On the one hand, some procedural safeguards were followed: plaintiffs were notified of the reasons for the proposed cancellation, given several opportunities to submit evidence, and provided opportunities to meet with agency officials. On the other hand, the risk of an erroneous deprivation of the protected interest was substantial because the BATF has no written procedures or substantive criteria to govern cancellation of labels. While notice of the revocation was certainly given to plaintiffs in the form of the April 1 Letter and communications that followed in April, May, June and July of 1992, plaintiffs were given an inadequate opportunity for a hearing. The initial notice to plaintiffs stated that the Bureau had already made its decision and that plaintiffs had to stop selling their product within ten days. See April 1 Letter, at 1. If due process requires that plaintiffs be given an opportunity for a hearing, that hearing must come before the Bureau has made its final decision.[5]
*611 Beyond this, the subsequent meetings between officials at the BATF and plaintiffs' representatives had serious deficiencies. There was no written record of the meetings; thus the Court cannot resolve the factual disputes between the parties regarding what was said at the meetings. Moreover, the Bureau conducted these meetings in a way which apparently confused plaintiffs as to their significance and scope: for example, the parties dispute whether plaintiffs had a right to submit further materials after the April 30 meeting or whether the Bureau had made its final decision by that time. Next, the concession made at the hearing before this Court that the BATF did not consider new evidence raises serious questions as to the constitutional adequacy of the hearing. If a person entitled to due process is offered only an opportunity to confront an assertion of administrative expertise rather than identified evidence, the BATF would seem to be required to identify the expert, the field of expertise, and the foundation for the opinion, rather than offer a simple pronunciamento. Such ad hoc procedures frustrate the important public concerns behind the requirement of due process. In this context, due process requires more than the opportunity to present your own case, it must include the ability to confront the case against you. Notice that the agency relied upon "administrative expertise" for its decision without an articulated foundation for that conclusion simply does not permit the exercise of the right of confrontation required by due process.
Finally, the BATF's decision was not made on the basis of an evidentiary record. Although the BATF may be able to review initial label applications solely on the basis of its administrative expertise, this expertise does not necessarily provide a sufficient basis to revoke the right to use a label, especially after a certificate holder has heavily invested in that label. Plaintiffs were neither informed of the expertise of the decision makers who revoked their label nor provided a written record of the revocation process so that they might understand the process and question the decision.
Regarding the third factor in the Eldridge test, there is little indication that the procedural requirements would create that great of a burden on the government. Defendants argue that the government has a strong interest in protecting consumers from misleading alcohol labels and that the imposition of additional procedures, such as requiring the BATF to conduct quasi-judicial hearings before revoking erroneously issued COLAs, would hinder the BATF in carrying out its functions. The Court finds these arguments unpersuasive. There is nothing before this Court which suggests that revocation by the BATF of COLAs it has previously approved is a frequent occurrence. To the contrary, the lack of any regulation process for this action suggests that it is not. This Court is not persuaded that the time and effort necessary to provide such a process would create any great burden on the agency, financial or otherwise.
The parties also disagree as to whether there were material facts in dispute regarding the revocation of the COLA, and therefore, whether a pre-termination hearing was required. Defendants argue that there were no material facts in dispute. They state, "[BATF] relied entirely upon its administrative expertise in reaching its decision to revoke the COLA's. In such situations, where the only matters to be decided are of law and policy, due process does not require an evidentiary or trial-type hearing. Connecticut State Department of Public Welfare v. Department of HEW, 448 F.2d 209, 212 (2d Cir.1971); Yee-Litt v. Richardson, 353 F.Supp. 996, 998 (N.D.Cal.1973)." Defendants' Opposition Brief, at 8.
But "administrative expertise" itself is a disputed material fact. Whether the purported expert is qualified to render an expert opinion, whether the supposed expert has reasonably relied on data used by experts in the field, and whether the opinion is supportable by facts are all disputed evidentiary material facts necessarily included in the ultimate disputed factthe opinion itself. Defendants argue that Mr. Cates and Ms. Moberly along with their staff at the BATF had substantial expertise to review the record and make the decision to revoke the "Black Death" COLA. But, plaintiffs were never told what expertise these individuals or their *612 staff had, nor were they provided a written record of the procedures employed or actions taken in the exercise of authority revoking the "Black Death" label. Defendants argue that the expertise of Mr. Cates and Ms. Moberly comes from "decades of reviewing labels," but this general assertion of supposed expertise misses the point. The expertise relied upon to revoke the "Black Death" COLA apparently relates to knowledge of consumer perception and behavior, and to the assessment of the likelihood of consumer confusion in the market caused by the label and associated advertising of the product. It does not relate to the assumed expertise of Mr. Cates and Ms. Moberly to discern misimpressions conveyed by the label as to the product in the container.
Thus, in light of the plaintiffs' ability to meet the test in Eldridge, the existence of material facts in dispute, and the failure to provide an adjudication hearing before cancellation of the COLA, the Court finds that the plaintiffs have been deprived of their constitutional right to procedural due process.

2. Statutory Authority of the BATF.

Under the APA, agency decisions may be "h[e]ld unlawful and set aside" if they are "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2) (West 1977). Plaintiffs argue that the BATF acted outside its statutory authority because "there is absolutely no delegation of authority to suspend or revoke COLAs in the FAA." Plaintiffs' Motion for Summary Judgment Brief, at 24. Defendants respond by arguing that the BATF has implied authority under the FAA to cancel a label that was erroneously issued.
The Court finds that there is no express delegation of authority in the BATF to suspend or revoke previously granted COLAs. While there is delegated authority to approve COLAs, the authority to revoke COLAs does not automatically derive from the authority to approve COLAs. Without statutory authority or regulatory authority, the BATF cannot cancel a certificate of label approval.
In Jeager v. Simrany, 180 F.2d 650 (9th Cir.1950), for example, the Immigration and Naturalization Service ("INS") issued a certificate of lawful entry to plaintiff. The INS subsequently attempted to revoke the certificate on the grounds that it was procured by falsification. Id. at 651. The Ninth Circuit held that the INS lacked the authority to revoke the certificate. The Court noted that the INS had specific statutory authority to cancel certain certificates, but that such authority for the relevant certificate was not included in the statute. Id. at 652-53. While the Ninth Circuit speculated that it may have been "an oversight on the part of Congress" not to have included the relevant certificate, it held that it was not up to the courts to cure the situation. Id. at 653.
The BATF contends that it has implied authority to "reconsider and rectify errors even though the applicable statute and regulations do not expressly provide for such reconsideration." Defendants cite Gun South, Inc. v. Brady, 877 F.2d 858, 862-63 (11th Cir.1989), in support of their argument. In Gun South, the BATF temporarily suspended an import permit for semiautomatic weapons upon discovering that it had previously issued the permit in error. The court upheld the decision by the BATF to revoke the license to import assault rifles because the initial approval was in error.
While there is some authority in support of the argument that agencies may reconsider their decisions even absent express statutory authority providing for such review, "an agency may undertake such reconsideration only if it does so within a reasonable time period and affords the claimant proper notice of its intent to reconsider the decision." Dun & Bradstreet v. U.S. Postal Service, 946 F.2d 189, 193 (2d Cir.1991) (citing Bookman v. U.S., 453 F.2d 1263, 1265, 197 Ct.Cl. 108 (1972)). In Bookman, the court held that the court "will sustain the reconsidered decision of an agency, as long as the administrative action is conducted within a short and reasonable time period." Id. 453 F.2d at 1265 (citations omitted). The determination of "a short and reasonable period of time" depends on the balancing the desirability of finality in an agency's decision against the public interest in reaching a *613 proper result. "What is a short and reasonable period will vary with each case, but absent unusual circumstances, the time period would be measured in weeks, not years." Gratehouse v. U.S., 512 F.2d 1104, 206 Ct.Cl. 288 (1975). In Gratehouse, a former government employee who had resigned from his job sought back pay and reinstatement by reason of alleged procedural errors on the part of the Civil Service Commission for failing to hear his complaint that his resignation had been coerced. The court found that the government's offer of a Civil Service Commission hearing to consider plaintiff's accusation two years later was too long a period of time to be considered a reconsideration of its earlier decision to deny plaintiff the hearing. In this case, the BATF changed its mind and revoked the previously approved COLA three years after the original approval. Thus, although the BATF may be able to establish implied authority to reverse its actions in some circumstances, in light of the decisions in Bookman and Gratehouse and in the absence of any showing of "unusual circumstances" by defendant that would justify the three year delay in the BATF's reconsideration, the Court finds that the BATF lacked implicit authority to revoke plaintiff's COLA in this case.

3. Arbitrary and Capricious Action.

Even if the BATF had authority to revoke the COLA, the BATF acted arbitrarily and capriciously in violation of 5 U.S.C. § 706(2). Under the APA, agency decisions may be "h[e]ld unlawful and set aside" if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2) (West 1977). The BATF's articulated reasons for revoking plaintiff's previously approved label are (1) that the label would lead consumers to falsely believe that the vodka was inherently dangerous, and (2) that by mocking the dangers of alcohol, consumers would be mislead into believing that alcohol is not dangerous.

a. Revocation based on the belief that consumers will think "Black Death Vodka" is poisonous was arbitrary and capricious.

The first claim by the BATF that consumers will believe plaintiffs' products are poisonous lacks a rational basis. Not only does it defy common sense to believe that the use of the term "death" in conjunction with the image of a grinning skull overcomes the otherwise clear indications on the bottle that the product contains vodka, but the two reasons put forth by the BATF for revoking the label are contradictory. The BATF claims that the "Black Death" label mocks the dangers of alcohol such that consumers will believe that alcohol is not dangerous, while also claiming that consumers will believe that the vodka is inherently unsafe for consumption. Defendants respond that the BATF's two reasons were not contradictory, but rather, the BATF meant that no matter how one viewed the label, it would create a misleading impression. Specifically, if the label was viewed facetiously, the label derided the detrimental effects of alcohol. If the label was read at face value, it would be misleading to the consumer who would think the product was inherently unfit for human consumption. When questioned at the hearing on this point, defendants conceded that consumers are not likely to believe the bottle contained a poisonous substance.

b. Revocation based on alleged mockery of the dangers of alcohol was arbitrary and capricious.

The BATF's revocation of plaintiff's label based on the alleged mockery of the dangers of alcohol was also improper. The BATF's regulations implementing the FAA Act do not authorize the BATF to generally regulate the marketing of alcoholic beverages; instead they authorize the BATF to regulate the labelling on the bottles of alcoholic beverages with respect to the content of the bottles. For the BATF to revoke a license, there must be a possibility of consumer deception as to what is contained within the bottle itself.
The FAA Act, 27 U.S.C.A. § 205(e) (West 1927 & Supp.1992), the basis of the BATF's authority to regulate labels of distilled spirits, was intended to prohibit practices in the alcoholic beverages industry "that Congress had judged to be unfair and deceptive, resulting *614 in harm to both competitors and consumers." Adolph Coors Co. v. Brady, 944 F.2d 1543, 1547 (10th Cir.1991) (extensive discussion of legislative history of FAA Act as it relates to representations of alcoholic content). Based on the language of this statute, it is apparent that Congress was primarily concerned with consumer deception stemming from sellers' claims regarding the quantity and content of alcoholic beverages.[6]
The Bureau regulations implementing the FAA Act are found in Title 27 of the Code of Federal Regulations. The regulation relied on by the Bureau in this case states that
No label shall contain any brand name, which, standing alone, or in association with other printed or graphic matter, creates any impression or inference as to the age, origin, identity, or other characteristics of the product unless the Director [of the BATF] finds that such brand name (when appropriately qualified if required) conveys no erroneous impressions as to the age, origin, identity, or other characteristics of the product.
27 C.F.R. § 5.34 (1991) [hereinafter "Section 5.34"]. Like the language of the FAA Act itself, this regulation authorizes the Bureau to evaluate brand names of alcoholic beverage products to determine whether the name is likely to mislead consumers regarding the nature of the contents of the beverage, i.e., the quality, quantity and physical characteristics of the alcoholic beverage within the container bearing the label.
Based on the language of the FAA Act and this regulation, the Court finds that the second reason given for revoking the label approvalthat the "Black Death" label mocks the dangers of alcoholnecessarily relies on a concern which is not addressed by the FAA Act. The basic idea behind the reason asserted by the Bureau is that by parodying the dangers of alcohol, plaintiffs deceive consumers into believing that alcohol does not have deleterious effects on a person's health. At its root, it is a concern with the marketing of "Black Death Vodka" as it relates to perceptions of the safety of alcohol in general. This understanding of the Bureau's reasoning is supported by statements made by Terry Cates in the Wall Street Journal, where he was quoted as saying that "[h]ad we known the direction the point-of-sale advertising was going to take, I submit we wouldn't have approved [the label]."[7] Wall Street J., Apr. 3, 1992, at B3.
On its face, Section 5.34 does not authorize the Bureau to generally regulate the marketing of alcoholic beverages; Section 5.34 is a labeling regulation. There must be a possibility of consumer deception as to what it contained within the bottle itself in order for the Bureau to revoke the right to use a label. This understanding of Section 5.34 is consistent with the Bureau's practice in initially approving the labels, where the Bureau decides to approve a label only if the claims regarding the contents of the distilled spirits are borne out by a chemical analysis of the spirits. See, e.g., Letter from Jerry Bowerman to Ann Morse, dated July 24, 1989 (Exhibit A to Cabo Declaration) (chemical analysis of "Black Death Vodka" upon which initial label approval was based). Moreover, it is consistent with the structure of the regulations themselves: while Section 5.34 addresses statements made on product labels, an entirely different subpart of the regulations addresses the advertising of distilled spirits. See 27 C.F.R. subpt. H (1991) ("Advertising of Distilled Spirits").
In this case, there is no likelihood of consumer confusion as to what is contained in the bottle. The product is clearly labeled as *615 "vodka." Plaintiffs' Motion for Summary Judgment Brief at 8. The BATF has provided no evidence that any customer has actually believed that the bottle contains poison or anything other than vodka, nor has it presented consumer surveys indicating that the product is associated in any way with alcoholism, alcohol poisoning, drunk driving, underage drinking, or any other manifestation of alcohol abuse.
Thus, the revocation of the "Black Death" label, based on the alleged mockery of the dangers of alcohol, was improper.[8] On this record, the BATF's decision was primarily based on its concerns over the marketing of the vodka, and not on a concern that the consumers would be mislead regarding the vodka's contents. Section 5.34 does not permit the BATF to regulate labels on this basis.

c. Revocation based on "death-evoking," misleading, or fanciful label was arbitrary and capricious.

To the extent the BATF's revocation of the "Black Death" COLA was due to the "death-evoking," misleading or fanciful nature of the label, the decision was arbitrary and capricious. The BATF has approved such "death-evoking" labels as "Cobra" malt liquor, "Blackened Voodoo" beer, "Vampire" wine, "Razor Edge" beer, "Wicked" ale, "M.A.S.H." vodka and "Scratch" beer. Plaintiffs' Motion for Summary Judgment Brief, at 11. For the BATF to single out plaintiffs' "Black Death" vodka COLA because it somehow mocks the seriousness of alcohol or misleads young people into believing it is part of a death cult is inconsistent and unfair to plaintiffs.
In addition, non-descriptive or even fanciful tradenames are a commonplace. "Wild Turkey" bourbon, "Moosehead" beer and "Apple" computers are a few examples. The BATF itself approved the label for "Black Hat" vodka with graphics nearly identical to the graphics on the revoked "Black Death" vodka COLA. And the BATF approved a label for "Sheep Dip" scotch even though it is highly unlikely that consumers would confuse the contents of a bottle so labeled with sheep-dip, a "liquid preparation of toxic chemicals into which sheep are plunged esp. to destroy parasitic arthropods (as lice, mites, keds, ticks)." Webster's Third New International Dictionary 2091 (1986).

4. First Amendment.

Plaintiffs argue that the BATF's revocation of the "Black Death Vodka" label violates the first amendment because the label constitutes protected speech. While the first amendment protects some commercial speech, Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-62, 96 S.Ct. 1817, 1823-25, 48 L.Ed.2d 346 (1976), to the extent that the speech is false and misleading, it is not protected. Id. at 770-73, 96 S.Ct. at 1830-31.
The determination of whether the label is misleading is the same as the determination under the "arbitrary and capricious" claim above. This Court finds no evidence that the label is misleading, however, even if it were, there would be less restrictive alternatives than outright prohibition of the label. Where commercial speech has a tendency to mislead, a disclaimer rather than outright prohibition is the appropriate remedy. Bates v. State Bar of Ariz., 433 U.S. 350, 375, 97 S.Ct. 2691, 2704, 53 L.Ed.2d 810 (1977). Here, the government's prohibition of the "Black Death Vodka" label strikes at the heart of the first amendment. In light of the previous analysis, however, the Court finds no reason to decide this case on first amendment grounds.

CONCLUSIONS
The Court has thoroughly reviewed the evidentiary submissions in this case, and in light of the foregoing analysis, the Court is satisfied that no disputed genuine issues of material fact remain. The unresolved factual disputes already described do not affect the outcome of the case, and are, therefore, not *616 material. Plaintiffs evidence establishes each element of the claims decided by this order, and meets the burden of the plaintiffs to demonstrate that they would be entitled to a directed verdict at trial. Defendants have failed to demonstrate a failure to state a claim upon which relief can be granted or to present evidence which, even if it is assumed to be true for purposes of this motion, would lead the Court to deny plaintiffs' motion for summary judgment.
The Court therefore ORDERS as follows:
1. Plaintiffs' motion for summary judgment is GRANTED.
2. Defendants' motion to dismiss or in the alternative for summary judgment is DENIED.
3. A status conference will be held by phone at 8:30 a.m., Pacific Standard Time, on December 9, 1992.
4. Plaintiffs are to prepare and file with the Court, within 20 days of the date of this Order, a proposed form of judgment consistent with this Order. Plaintiffs are to provide a copy of the proposed judgment to defendants and defendants may file any objections to the proposed form of judgment within 30 days of the date of this Order.
IT IS SO ORDERED.
NOTES
[1]  The owner of Cabo Distributing Co., Federico Cabo, provides his own aesthetic impression of the front label for the Court. He states that "[t]he skull appearing on the front of the bottle is not a symbol for poison, which is a skull and cross-bones. Instead, it is quite a distinctive, smiling, genial skull with a top hat." Cabo Declaration, ¶ 9. In contrast, journalists and others describe the skull as a "macabre image[.]" See Montreal Gazette, May 17, 1992, at B5 (attached to Final BATF Approval Decision, dated July 6, 1992 (Exhibit G to Declaration of George Weikhardt)).
[2]  Federico Cabo also states that he and his employees invested "thousands of hours ... of highly valuable personal time" in this effort. Cabo Declaration, ¶ 12.
[3]  There also may have been attempts to distribute the vodka in Massachusetts and Texas. According to defendants, both of those states have specifically refused to allow plaintiffs to sell the vodka under the "Black Death" label. See Cates Declaration, ¶ 12.
[4]  Between July 1, 1989 and April 1, 1992, Cabo spent over $1 million promoting and marketing the vodka. Cabo Declaration, ¶ 11-12. In addition, they hired Saul Hudson of the musical quartet "Guns 'n Roses" to promote the vodka. Cabo Declaration, ¶ 12.
[5]  Defendants state that the April 1, 1992 letter was not a final decision. To the contrary, the Court finds that the letter indicated the BATF's decision to revoke the license in the absence of any response from plaintiffs. The letter states: "The Bureau of Alcohol, Tobacco and Firearms (ATF) has reexamined ... [the COLAs for "Black Death" vodka] and has determined that the labels are in violation of ATF regulations.... AFT intends to cancel the certificates of label approval ... within 10 days from the date of this letter. You may submit written evidence to establish that the labels are in conformance with the standards of 27 C.F.R. § 5.34(a)." Letter to Federico Cabo from Terry L. Cates, dated April 1, 1992.
[6]  The FAA Act provides in relevant part that:

It shall be unlawful for any person ... to sell ... any distilled spirits ... unless such products are ... labeled in conformity with such regulations, to be prescribed by the Secretary of the Treasury, with respect to packaging, marking, branding, and labeling and size and fill of containers ... as will prohibit deception of the consumer with respect to the products or quantity thereof and as will prohibit, irrespective of falsity, such statements relating to age, manufacturing processes, analyses, guarantees, and scientific or irrelevant matters as the Secretary of the Treasury finds to be likely to mislead the consumer....
[7]  The Court may look beyond the administrative record in determining whether an agency considered the relevant factors in making its decision. See Thompson v. U.S. Department of Labor, 885 F.2d 551 (9th Cir.1989).
[8]  As an apparent subset of the mockery thesis the BATF also asserted that the label dilutes the Surgeon General warning set forth on each bottle. The Court views this idea, that the label somehow detracts from this clear message, to be even less persuasive than the generalized mockery of danger thesis itself.


Court of Appeals
of the State of Georgia

                                         ATLANTA, January 10, 2017

The Court of Appeals hereby passes the following order:

A16A1617. CRATON et al. v. BEAROFF et al.

      On March 7, 2016, the Floyd County trial court granted plaintiff Janet Bearoff
(and her associated entities) a preliminary injunction enforcing a 2009 non-compete
agreement between Bearoff and defendant Charles Craton (and other persons and
entities). The injunction enjoined Craton from operating the adult novelties business
known as The Love Library on the ground that it violated the parties’ 2009
agreement. The trial court’s order noted that the injunction “shall remain in effect
until September 10, 2016,” the expiration date of the non-compete agreement, “or
until further order of the court, whichever shall occur first.” On March 11, 2016,
however, the trial court stayed the injunction “until further order of this Court or such
time as [Craton’s] appeal . . . is decided by the appropriate appellate court, whichever
first occurs.” The trial court’s stay also noted that “[a] hearing on a bond shall be
scheduled for a later time.” On the same day, Craton filed a notice of appeal from this
judgment. Bearoff did not file a notice of cross-appeal. On March 17, the trial court
ordered Craton to post an appeal bond in the amount of $92,000, which Craton
apparently posted on April 1, 2016. Craton did not file a second notice of appeal
concerning the appeal bond.
      Craton’s appeal was docketed in this Court on May 4, 2016. On May 10,
appellee Bearoff filed an emergency motion asking this Court to expedite a decision
before the expiration of the non-compete agreement on September 10. This Court
denied the motion on the grounds that it did not meet the procedural or substantive
requirements of Court of Appeals Rule 40 (b). On September 16, 2016, we asked both
parties to file supplemental briefs on the question whether Craton’s appeal was moot
in light of the expiration of the underlying injunction. The parties filed these
supplemental briefs in September and October 2016.
      It is settled that “[t]he duration of a covenant not to compete is not tolled
during litigation” and that “when the duration of that covenant has expired, an action
seeking injunctive relief pursuant to the covenant is moot.” Hogan Mgmt. Svcs. v.
Martino, 242 Ga. App. 791, 793 (1) (530 SE2d 508) (2000) (footnotes omitted). “To
prevent [an appeal concerning an expired injunction] from becoming moot, the
appealing party must obtain a supersedeas,” but “the filing of a notice of appeal in
injunction cases does not serve as a supersedeas.” Brown v. Spann, 271 Ga. 495, 496
(520 SE2d 909) (1999) (citation and punctuation omitted). Although Craton argues
that the grant of an appeal bond prevents mootness, that bond was ordered well after
the filing of Craton’s single notice of appeal, and Craton failed to appeal it.
Accordingly, we cannot consider any error as to the bond itself. See Jaycee Atlanta
Dev. v. Providence Bank, 330 Ga. App. 322, 331 (6) (765 SE2d 536) (2014) (refusing
to consider error as to a supersedeas bond when a party failed to file a second notice
of appeal). In the absence of any counterclaim by Craton for wrongful restraint,
questions concerning the propriety of an award of damages or attorney fees must
await the disposition of such an award in the trial court. Compare Cox v. Altus
Healthcare and Hospice, 308 Ga. App. 28, 30 (1) (706 SE2d 660) (2011) (appeal
concerning an expired injunction was not moot when a defendant’s claim for
wrongful restraint remained pending below).
      For all these reasons, we lack jurisdiction over this appeal, which is hereby
DISMISSED. Brown, 271 Ga. at 495 (dismissing appeal as moot).

                                       Court of Appeals of the State of Georgia
                                              Clerk’s Office, Atlanta, 01/10/2017
                                              I certify that the above is a true extract from
                                       the minutes of the Court of Appeals of Georgia.
                                              Witness my signature and the seal of said court
                                       hereto affixed the day and year last above written.

                                                                                , Clerk.


                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT

                             No. 99-50065
                           Summary Calendar

UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,

versus

WOLFGANG ERBSTOESSER,

                                              Defendant-Appellant.

                          - - - - - - - - - -
             Appeal from the United States District Court
                   for the Western District of Texas
                             (98-CR-141-1)
                          - - - - - - - - - -

                            October 5, 1999

Before POLITZ, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Wolfgang Erbstoesser appeals from his

sentence following his guilty-plea conviction for conspiracy to

possess with intent to distribute MDMA and cocaine, possession with

intent to distribute MDMA, and importation of MDMA.           He first

argues that the district court clearly erred by attributing one

pound of crystal methamphetamine to him as relevant conduct,

contending     that   evidence   of   the   methamphetamine   sale   was

insufficiently reliable and that the sale of methamphetamine did

     *
        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.
not qualify as relevant conduct. He also asserts that the district

court clearly erred by applying a two-level leadership adjustment

to his sentence, pursuant to U.S.S.G. § 3B1.1(c). Factual findings

made by a sentencing court must be supported by a preponderance of

the evidence and are upheld unless clearly erroneous.                         United

States   v.    McCaskey,    9    F.3d    368,   372    (5th   Cir.   1993).      The

sentencing court’s interpretations of the guidelines are reviewed

de novo.      Id.

     Evidence of Erbstoesser’s methamphetamine sale was obtained

from interviews conducted by DEA agents and was corroborated by

Erbstoesser’s own statements to the DEA agents.                 The evidence was

therefore sufficiently reliable for sentencing purposes.                         See

United States v. Shacklett, 921 F.2d 580, 584-85 (5th Cir. 1991).

Although      Erbstoesser       argued    against      the    inclusion   of     the

methamphetamine sale as relevant conduct and the imposition of the

leadership adjustment at sentencing, he failed to present any

rebuttal evidence as to either issue.                 Erbstoesser has therefore

failed to show that the district court clearly erred by adopting

the PSR’s factual findings regarding these issues.                     See United

States v. Rogers, 1 F.3d 341, 345 (5th Cir. 1993)(no clear error

shown when defendant failed to present evidence to rebut PSR’s

finding regarding relevant conduct).                As we affirm the sentence

imposed by the district court, we need not consider Erbstoesser’s

request for a remand for the sentencing court to apply the “safety

valve provision.”

AFFIRMED.

                                          2


                                  Cite as 2015 Ark. App. 555

                  ARKANSAS COURT OF APPEALS
                                         DIVISION III
                                        No.CV-15-178

SEECO, INC.; JOYCE WALLS; AND                      Opinion Delivered   October 7, 2015
JACK G. WALLS AND JOYCE J. WALLS
AS CO-TRUSTEES OF THE JACK G.                      APPEAL FROM THE WHITE
WALLS AND JOYCE J. WALLS                           COUNTY CIRCUIT COURT
REVOCABLE TRUST                                    [NO. CV-2009-679]
                     APPELLANTS
                                                   HONORABLE THOMAS M.
V.                                                 HUGHES, JUDGE

                                                   REVERSED AND REMANDED
CARVER L. HOLDEN; CHESAPEAKE
OPERATING, INC.; CHESAPEAKE
EXPLORATION, LIMITED
PARTNERSHIP; CHESAPEAKE
EXPLORATION, LLC; CHESAPEAKE
INVESTMENTS; BP AMERICA
PRODUCTION COMPANY; BHP
BILLITON PETROLEUM
(FAYETTEVILLE), LLC; AND
RIVERBEND EXPLORATION AND
PRODUCTION, LLC
                        APPELLEES

                               DAVID M. GLOVER, Judge

       In this oil-and-gas case, appellant Joyce Walls and her lessee, SEECO, Inc., appeal from

an order vesting ownership of certain minerals in appellee Carver L. Holden. We reverse and

remand for further proceedings.1

       1
          The Jack G. Walls and Joyce J. Walls Revocable Trust and several of Holden’s lessees
are also parties to this appeal. For convenience, we will refer only to Walls as the appellant and
Holden as the appellee.
                                Cite as 2015 Ark. App. 555

                                         I. Background

       The minerals in question are subsurface to approximately 95 acres in Section 18,

Township 9 North, Range 7 West in White County. In 1912, appellant Joyce Walls’s

grandfather, W.M. Howell, acquired the acreage and its minerals. Howell later sold the

property to Clotene and Raymond Cox in 1948, but he retained an undivided one-half

mineral interest in himself.

       In 1952, Mr. and Mrs. Cox deeded the 95 acres to Ola and Carver Ray Holden, the

parents of appellee Carver L. Holden. The deed granted Mr. and Mrs. Holden the entire

interest in the property, save and except the undivided one-half mineral interest previously

reserved by W.M. Howell.

       Howell died in 1953. His one-half mineral interest then passed to his daughter, Grace

Marshall. Ms. Marshall did not pay the taxes on the minerals, and a tax-delinquency sale was

conducted in 1958. At the sale, Carver Ray Holden purchased Ms. Marshall’s one-half mineral

interest. This purchase, when combined with Carver Ray’s ownership of the surface and the

other one-half mineral interest, appeared to unify the property’s ownership in him.

       In 1983, Grace Marshall died, leaving a son, Duane Marshall, and a daughter, appellant

Joyce Walls. Duane died in 2000, after which Walls considered herself the sole owner of the

undivided one-half mineral interest that had been retained by her grandfather many years

earlier. In November 2005, Walls executed an oil-and-gas lease of the 95 acres to the T.S.

Dudley Land Company. The lease was subsequently assigned to SEECO. However, Walls

conducted no drilling on the property.

       In September 2006, Carver Ray Holden deeded the 95 acres and all of its minerals to

                                              2
                                   Cite as 2015 Ark. App. 555

his son, appellee Carver L. Holden. Thereafter, Carver L. Holden executed a mineral lease to

Chesapeake Exploration Limited Partnership. Chesapeake began drilling operations on May

21, 2007, and, as of January 2008, three wells were producing natural gas.2

       Joyce Walls would later testify that she became aware of Holden’s wells in April 2009.

On September 4, 2009, she filed a quiet-title action to protect her interest in the minerals. Her

complaint alleged that the 1958 tax sale, by which Holden’s predecessor obtained a deed to

her family’s one-half mineral interest, was void. She therefore claimed that she retained

ownership of that half interest and that she was entitled to an accounting for the production

and income from the wells. Holden responded that Walls’s suit was time-barred because it was

filed more than two years after his drilling operations had begun.

       A bench trial was held, and the court heard the evidence described above. In addition,

Sherry Williams, an employee of the White County Tax Collector’s Office, testified that the

county’s 1957 assessments, from which the 1958 tax sale arose, did not subjoin the mineral

interests to surface interests.3 Instead, she said, the mineral interests were located in a separate

part of the assessment book. Another witness, Chesapeake land man Jim Kelly, acknowledged

that Walls’s mineral interest in the 95 acres was listed in Chesapeake’s Declaration of Pooling

in the subject area in White County. Kelly said, however, that Walls’s interest was listed out

of an abundance of caution, on the chance that she did have a legitimate mineral interest.

       2
       Chesapeake later assigned all or part of its interest in the Holden lease to BP America,
BHP Billiton, and Riverbend Exploration.
       3
         Subjoinder means that separate mineral interests in a plot of land must be listed
individually immediately after each respective fee or surface interest. See Garvan v. Potlatch
Corp., 278 Ark. 414, 645 S.W.2d 957 (1983).
                                                 3
                                  Cite as 2015 Ark. App. 555

       Following the trial, the circuit court ruled that Walls did not own the mineral rights

she purported to lease; that she did not have possession of the mineral rights within two years

before she commenced her lawsuit; that Holden took possession of the minerals on May 21,

2007, upon drilling the first well; and that Walls’s September 2009 suit was therefore barred

by the two-year statute of limitations in Arkansas Code Annotated section 18-61-106(a) (Repl.

2003). The court quieted title to the disputed one-half mineral interest in Holden and declared

that his lessees had the rights afforded them by lease or assignment. Walls filed this appeal.4

                                     II. Standard of Review

       Quiet-title actions have traditionally been reviewed de novo as equity actions. Sutton

v. Gardner, 2011 Ark. App. 737, 387 S.W.3d 185. However, the circuit court’s findings of fact

will not be reversed unless they are clearly erroneous. Id. A finding of fact is clearly erroneous

when, although there is evidence to support it, the reviewing court, on the entire evidence,

is left with a definite and firm conviction that a mistake has been committed. Flowers v.

Amerisourcebergen Drug Corp., 2012 Ark. App. 224.

                            III. Walls’s Ownership of Mineral Interest

       Walls first argues that the circuit court erred in declaring that she did not own the

mineral interests that she leased to Dudley/SEECO in 2005. She contends that, to the

contrary, her family maintained good title to an undivided one-half mineral interest because

the 1958 tax sale, by which Holden’s predecessors purported to buy her half interest, was void.

       4
        We dismissed an earlier appeal for lack of a final order. SEECO, Inc. v. Holden, 2014
Ark. App. 227. The appellants returned to circuit court, obtained a final order, and filed a
timely notice of appeal.
                                                4
                                   Cite as 2015 Ark. App. 555

We agree.

       The undisputed testimony of White County tax official Sherry Williams was that, at

the time the tax sale in this case took place, the severed mineral assessments in White County

were located in a separate part of the county assessment book from surface interests. The

mineral assessments therefore were not subjoined to the surface assessments as required by the

law at that time.5 As a result, the power to sell for delinquent taxes was lacking. Sorkin v. Myers,

216 Ark. 908, 227 S.W.2d 958 (1950). Thus, the 1958 tax sale of the one-half mineral interest

and the accompanying tax deed to Holden’s predecessor were void. Gilbreath v. Union Bank,

309 Ark. 360, 830 S.W.2d 854 (1992); Garvin v. Potlatch Corp., 278 Ark. 414, 645 S.W.2d 957

(1983). The Walls family therefore maintained their ownership of an undivided one-half

mineral interest and, consequently, Walls and Holden each now hold legal title to an

undivided one-half mineral interest in the 95 acres.

       Nevertheless, a defective mineral deed such as Holden’s can ripen into good title. As

explained in the next section, for that to occur, the holder of the defective deed must disseize

the legal owner by adversely possessing the minerals for two years before the legal owner files

suit. See Hurst v. Rice, 278 Ark. 94, 643 S.W.2d 563 (1982); Adams v. Bruder, 275 Ark. 19, 627

S.W.2d 12 (1982); Sage Land & Lumber Co. v. Hickey, 222 Ark. 147, 257 S.W.2d 941 (1953);

Honeycutt v. Sherrill, 207 Ark. 206, 179 S.W.2d 693 (1944).

       5
        The legislature removed the subjoinder requirement in Act 961 of 1985, but the Act
does not apply to assessments that occurred prior to its passage. Gilbreath v. Union Bank, 309
Ark. 360, 830 S.W.2d 854 (1992).
                                                 5
                                 Cite as 2015 Ark. App. 555

                            IV. The Two-Year Statute of Limitations

       The two-year adverse-possession requirement arises from the statute of limitations

found in Arkansas Code Annotated section 18-61-106(a) (Repl. 2003):

       No action for the recovery of any lands or for the possession thereof against any person
       or persons, their heirs and assigns, who may hold such lands by virtue of a purchase
       thereof at a sale by the collector, or the Commissioner of State Lands, for the
       nonpayment of taxes . . . shall be maintained, unless it appears that the plaintiff, his or
       her ancestors, predecessors, or grantors, was seized or possessed of the lands in question
       within (2) two years next before the commencement of the suit or action.

This statute has been interpreted to mean that a person holding land (or a mineral estate) by

virtue of an invalid tax deed may nevertheless dispossess the legal owner and gain good title

if he possesses the property adversely and continuously for two years before the legal owner

files suit. Hurst, supra; Adams, supra; Sage Land & Lumber Co., supra; Honeycutt, supra.

       Citing the above statute, the circuit court ruled that Holden possessed the disputed

one-half mineral interest and disseized Walls by drilling for minerals on the property

continuously for two years before Walls filed suit in September 2009. Walls argues that the

court erred in its ruling. We agree.

       The parties initially argue over what point marks the beginning of the two-year

limitations period. Walls insists that Holden’s January 2008 onset of gas production is the

starting point, thus making her September 2009 lawsuit timely. Holden claims (and the circuit

court agreed) that the statute of limitations commenced with his drilling activities in May 2007

and continued for two years thereafter, thus barring Walls’s September 2009 suit. Our review

of the case law indicates that the point at which adverse possession begins for purposes of

                                                6
                                  Cite as 2015 Ark. App. 555

section 18-61-106(a) is not clear. In Claybrooke v. Barnes, 180 Ark. 678, 682, 22 S.W.2d 390,

392 (1929), our supreme court held that adverse possession under the above statute begins with

an occupant’s “opening mines and operating same”; and in Taylor v. Scott, 285 Ark. 102, 104,

685 S.W.2d 160, 161 (1985), upon an occupant’s “opening mines or drilling wells.” Our court

has stated that, to be in possession of a constructively severed mineral interest, “actual

production” is required. Walker v. Western Gas Co., 5 Ark. App. 226, 228, 635 S.W.2d 1, 2

(1982).

          We need not decide the point, however. As Walls also argues, regardless of when the

statute of limitations began to run, neither Holden’s mineral exploration nor his production

was shown to be adverse to Wall’s undivided one-half interest in the minerals.

          The adverse possession required by section 18-61-106(a) must be of such character as

to put the legal owner on notice that his rights are being challenged. See Taylor, supra; Adams,

supra. As mentioned, Walls and Holden each hold an undivided one-half interest in the

minerals. As co-owners of the mineral interests, they each have an equal right to go onto the

95 acres and drill for minerals, subject only to the duty to account to their co-owner. See 1

Patrick H. Martin & Bruce M. Kramer, Williams & Meyers, Oil & Gas Law, §§ 224.3 & 224.4

(2014). Thus, whatever infringement occurred when Holden went onto the land and drilled

for minerals without Walls’s consent it was not sufficient to constitute notice to Walls of his

exclusive possession of the minerals or an intent to oust her of her undivided one-half interest.

We therefore agree with Walls that Holden’s possession was not adverse, as required for his

                                               7
                                  Cite as 2015 Ark. App. 555

defective tax deed to ripen into good title. Accordingly, Walls’s quiet-title action is not barred

by the statute of limitations, and we reverse and remand for further proceedings.6

                              V. Alternative Reasons for Affirmance

       Holden asserts two alternative reasons for affirming the circuit court. We may affirm

where the court reaches the right result, even if the court announced a different reason. Foust

v. Montez-Torres, 2015 Ark. 66, 456 S.W.3d 736.

       First, Holden cites a 1983 lawsuit in which Walls and her brother, Duane, sued Ola and

Carver Ray Holden with regard to mineral interests on the subject property. The case was

nonsuited in October 1983. Holden contends that, because Walls did not refile the suit within

one year, her current lawsuit is barred under the Arkansas Savings Statute. Ark. Code Ann. §

16-56-126 (Repl. 2005). We decline to affirm on this ground. The court clerk could not

locate the entire file from the 1983 lawsuit, and several important items were missing,

including the complaint and other pleadings. Like the circuit court, we are reluctant to dismiss

Walls’s current quiet-title action in the absence of more documented information about the

1983 proceedings.

       Holden also claims that Walls sat on her rights after filing the 1983 lawsuit; therefore,

her lawsuit should be barred by the equitable doctrines of laches and estoppel. For the reasons

stated above, we also decline to affirm on this ground.

       6
         Holden contends that Walls makes this “co-tenancy” argument for the first time on
appeal. Yet Walls argued below that the parties were co-tenants in the minerals, that Holden
had the burden of proving adverse possession, and that Holden and Chesapeake’s possession
was not exclusive.
                                                8
                                Cite as 2015 Ark. App. 555

       Reversed and remanded.

       VIRDEN and VAUGHT, JJ., agree.

       PPGMR Law, PLLC, by: R. Scott Morgan and Patrick Feilke; and Stephen C. Gardner, for
appellants.

       Lody & Arnold, Attorneys at Law, P.A., by: Wesley G. Lody, for appellees.

                                             9


                                   UNITED STATES DISTRICT COURT
                                   FOR THE DISTRICT OF COLUMBIA

    JEFFERY J. PROSSER, et al.,

                             Plaintiffs,

                             v.                                   Case No. 1:17-cv-01662 (TNM)

    MATTHEW WHITAKER,

                             Defendant.

                                      MEMORANDUM AND ORDER

         Plaintiffs originally filed this action seeking to compel the Acting Attorney General1 to

intervene in Mr. Prosser’s bankruptcy proceedings and to compel the Secretary of Treasury to

cease and desist funding for the National Rural Utilities Cooperative Finance Corporation

(“CFC”). The Court, however, granted Defendants’ motion to dismiss Plaintiffs’ Complaint.

Prosser v. Sessions, 315 F. Supp. 3d 547 (D.D.C. 2018). The Court concluded that Plaintiffs had

failed to identify any authority plainly establishing a nondiscretionary duty that required the

Attorney General to intervene in Mr. Prosser’s case, and Plaintiffs lacked standing to challenge

funding for CFC. Id. at 555–56.

         Plaintiffs then filed an Amended Complaint suing only the Attorney General. Plaintiffs

seek declaratory judgments that the Department of Justice has failed to fulfill certain

nondiscretionary duties related to bankruptcy proceedings and again to compel intervention in

Mr. Prosser’s case. But Plaintiffs’ requests for relief fail, because Plaintiffs still have identified

1
  Under Federal Rule of Civil Procedure 25(d), “when a public officer who is a party in an official capacity . . .
resigns[] or otherwise ceases to hold office while the action is pending[,] [t]he officer’s successor is automatically
substituted as a party.” Thus, Matthew Whitaker, who is currently the Acting Attorney General, has been
substituted as a party in this action, replacing Jefferson B. Sessions, III.
no authority plainly establishing a nondiscretionary duty that requires the Acting Attorney

General to intervene. Thus, Defendant’s [32] Renewed Motion to Dismiss will be granted, and

Plaintiffs’ claims will be dismissed with prejudice.

         Plaintiffs’ 79-page amended complaint details salacious allegations of corruption, fraud,

and malfeasance. According to Plaintiffs, the CFC, federal prosecutors, Virgin Island officials,

and a bankruptcy judge engaged in a bribery conspiracy that led to “corrupted” bankruptcy

proceedings against Mr. Prosser. See Am. Compl., ECF # 31, Pages 18–50. Plaintiffs also

allege that the Department of Justice was aware of the corrupt and illegal circumstances

surrounding the proceedings but chose not to intervene for political reasons. Id. at Pages 50–62.

Plaintiffs allege that the Department of Justice’s failure to intervene is contrary to its clear, non-

discretionary duties to “ensure [that] Federal bankruptcy proceedings conform to Federal Law”

and to protect the federal fisc.2 Id. at Page 11, ¶ 11.

         Citing the Administrative Procedure Act, 5 U.S.C. §§ 703 and 706(1), Plaintiffs contend

that because the Department of Justice has failed to perform these duties, Plaintiffs are entitled to

an order compelling the Attorney General to intervene in Mr. Prosser’s bankruptcy proceedings.

See Am. Compl., ECF # 31, Pages 76–78, ¶¶ 275–82. But judicial review under the APA is

unavailable here. “[I]n cases that involve agency decisions not to take enforcement action,

[courts] begin with the presumption that the agency’s action is unreviewable.” Sierra Club v.

Jackson, 648 F.3d at 848, 855 (D.C. Cir. 2011); see also Heckler v. Chaney, 470 U.S. 821, 832

(1985) (noting that the traditional rule is that “an agency’s decision not to take enforcement

action should be presumed immune from judicial review”).3 Indeed, “a claim under § 706(1) can

2
 Plaintiffs call these duties the “Integrity Duty” and the “Fiscal Duty,” respectively.
3
 Moreover, Heckler makes clear that this presumption applies to agency decisions to refuse enforcement through
either civil or criminal processes: “This Court has recognized on several occasions over many years that an agency’s
decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to

                                                         2
proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it

is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 63 (2004) (emphasis in

original). “This standard reflects the common law writ of mandamus, which the APA ‘carried

forward’ in § 706(1).” Anglers Conservation Network v. Pritzker, 809 F.3d 664 (D.C. Cir. 2016)

(quoting Norton, 542 U.S. at 63).

         Previously, the Court rejected Plaintiffs’ requests for mandamus relief premised on the

same “Integrity Duty” and “Fiscal Duty” that Plaintiffs now seek to enforce under the APA. See

Prosser, 315 F. Supp. 3d at 553–54. The Court concluded that Plaintiffs had “not established a

plainly defined and nondiscretionary duty of the Attorney General that would require him to

intervene in Mr. Prosser’s bankruptcy proceedings.” Id. at 553. So too here.

         The “Integrity Duty,” Plaintiffs allege, principally derives from 28 U.S.C. § 586 and

18 U.S.C. § 3057, but the Court already determined that those “statutes impose only one

requirement on the Attorney General: That he provide general coordination and assistance to the

United States trustees. That duty does not plainly require him to intervene in Mr. Prosser’s

bankruptcy proceedings.” Id. at 554. The “Fiscal Duty” allegedly derives from the False Claims

Act, 31 U.S.C. §§ 3729–33, the Inspector General Act of 1978, 5 U.S.C. App. 3 § 1 et seq., and

criminal statutes proscribing fraud against the United States, e.g., 18 U.S.C. § 1031 and

18 U.S.C. § 371. But none of these statutes plainly establishes an affirmative duty in the

Attorney General to intervene in bankruptcy proceedings. Indeed, the False Claims Act

explicitly grants the Attorney General prosecutorial discretion, instructing that “[i]f the Attorney

General finds that a person has violated or is violating section 3729, the Attorney General may

an agency’s absolute discretion. This recognition of the existence of discretion is attributable in no small part to the
general unsuitability for judicial review of agency decisions to refuse enforcement.” 470 U.S. at 831–32 (emphasis
added) (citations omitted).

                                                           3
bring a civil action under this section against the person.” 31 U.S.C. § 3730(a) (emphasis

added).4 Thus, because Plaintiffs cannot show that the Department of Justice failed to take a

“discrete agency action that it [wa]s required to take,” Norton, 542 U.S. at 63, their claims for

relief under § 706(1) fail.

         Plaintiffs’ requests for declaratory relief fair no better. Because Plaintiffs have not

alleged a cognizable cause of action, they have no basis to seek declaratory relief. See Ali v.

Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011). The Declaratory Judgment Act, 28 U.S.C.

§ 2201, “is not an independent source of federal jurisdiction.” Schillings v. Rogers, 363 U.S.

666, 677 (1960). A Declaratory Judgment presupposes the existence of a judicially remediable

right, Ali, 649 F.3d at 778, but no such remediable right exists here. Therefore, Plaintiffs’

requests for declaratory relief are denied.

                                                    *     *    *

         For these reasons, it is hereby ORDERED that [32] Defendant’s Renewed Motion to

Dismiss is GRANTED. It is further ORDERED that Plaintiffs’ Complaint is DISMISSED

WITH PREJUDICE. The Clerk of the Court is directed to close this case.

SO ORDERED.

This is a final, appealable Order.
                                                                                2018.11.13
                                                                                16:55:24 -05'00'
Dated: November 13, 2018                                       TREVOR N. MCFADDEN
                                                               United States District Judge

4
 Plaintiffs cite a smattering of other statutes, regulations, agency guidance documents, and case law to show the
existence of these alleged non-discretionary duties, see Am. Compl., ECF # 31, Pages 10–18, ¶¶ 9-21, but none
establishes a clear, non-discretionary affirmative duty in the Attorney General to intervene in bankruptcy
proceedings.

                                                          4


524 S.E.2d 815 (2000)
STATE of North Carolina
v.
Michael L. HATCHER, Defendant-Appellant.
No. COA99-782.
Court of Appeals of North Carolina.
February 1, 2000.
*816 Attorney General Michael F. Easley, by Special Deputy Attorney General Charles J. Murray, for the State.
Donald K. Tisdale, Sr., Winston-Salem, for defendant-appellant.
SMITH, Judge.
Defendant was found guilty as charged of two counts of robbery with a dangerous weapon. He was sentenced in the aggravated range to a minimum term of 108 months and the corresponding maximum of 139 months for each offense, to run consecutively.
The State presented evidence tending to show that on 5 January 1998 defendant and Anthony Eaton took at gunpoint a 1989 Toyota Tercel automobile and a wallet containing cash from Angel Prudente and jewelry from Delfino Laredo.
Defendant's assignments of error are grouped into four questions for review. For the following reasons, we affirm defendant's convictions.
First, defendant contends the court erred in restricting his cross examination of witnesses in violation of his constitutional right to confront the witnesses against him. He assigns as error the court's refusal to allow defendant to question (1) Prudente and Laredo regarding their immigration status, (2) Eaton regarding his history of carrying and discharging firearms, (3) Eaton regarding his sentencing to a lower category than appropriate, and (4) Eaton's attorney regarding what would happen to Eaton if he did not testify. He argues these questions were designed to show bias.
The right to cross examine a witness to expose the witness' bias is not unlimited. State v. Sams, 317 N.C. 230, 345 S.E.2d 179 (1986). "[W]hile it is axiomatic that the cross-examiner should be allowed wide latitude, the trial judge has discretion to ban unduly repetitious and argumentative questions, as well as inquiry into matters of tenuous relevance." 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 170 (5th ed.1998). Moreover, the trial judge retains the discretion to prohibit cross examination that is intended to harass, annoy or humiliate a witness. State v. Mason, 315 N.C. 724, 340 S.E.2d 430 (1986). The trial judge's rulings in controlling cross examination will not be disturbed unless it is shown that the verdict was improperly influenced. State v. Woods, 307 N.C. 213, 297 S.E.2d 574 (1982).
Applying these principles to the case at bar, we note that the immigration status of the two victims was of very tenuous, if any, relevance to their credibility. Although Eaton testified that his plea was not contingent upon testifying against defendant, he acknowledged on cross examination that the written plea agreement called for him to testify. Eaton acknowledged on direct examination *817 and again on cross examination that he had two prior convictions of carrying a concealed weapon. He further admitted on cross examination that he received a sentence less severe than he should have for his prior record level. Given this testimony of similar import, the court did not abuse its discretion in refusing to allow further repetitious and cumulative cross examination into these matters. Moreover, the court's rulings could not have affected the verdict in view of the overwhelming evidence of defendant's guilt.
Defendant next assigns as error the court's denial of his motion to dismiss for insufficient evidence. He makes no argument except to acknowledge "the heavy burden" placed on him to show the evidence was not sufficient and to request this Court to review the evidence "to determine if it is insufficient as a matter of law." Because of defendant's failure to make any supporting argument or citation of authority, this assignment of error is considered abandoned. N.C.R.App. P. 28(b)(5).
Defendant next contends the court erred in computing his prior record level points by assessing points for an offense to which he pled no contest and for which prayer for judgment was continued. "A person has a prior conviction when, on the date a criminal judgment is entered, the person being sentenced has been previously convicted of a crime...." N.C. Gen.Stat. § 15A-1340.11 (7) (1997). "For the purpose of imposing sentence, a person has been convicted when he has been adjudged guilty or has entered a plea of guilty or no contest." N.C. Gen.Stat. § 15A-1331(b) (1997). We have interpreted N.C. Gen.Stat. § 15A-1331(b) to mean that formal entry of judgment is not required in order to have a conviction. State v. Fuller, 48 N.C.App. 418, 268 S.E.2d 879, disc. review denied, 301 N.C. 403, 273 S.E.2d 448 (1980). Consequently, we conclude that defendant was convicted of the prior offense when he entered the plea of no contest even though no final judgment had been entered. This assignment of error is overruled.
Finally, defendant contends the court erred by finding as a factor in aggravation of the sentences that the offenses were committed against the victims because of their race, color, religion, nationality or country of origin. He argues that this finding pursuant to N.C. Gen.Stat. § 15A-1340.16(d)(17) (1997) applies only when the defendant has some animus against the victim due to the victim's race or nationality. We disagree.
N.C. Gen.Stat. § 15A-1340.16 (d)(17) reads as follows: "The offense for which the defendant stands convicted was committed against a victim because of the victim's race, color, religion, nationality, or country of origin." There is no language in the statute to suggest a limiting requirement that the defendant harbor animosity toward a race or ethnic group. The statute merely provides that the offense be committed against a victim "because of the victim's race, color, religion, nationality or country of origin." Accordingly, a finding of this factor may be made any time the defendant targets a person for victimization because of his race or national origin. Here, Eaton testified that he and defendant selected Prudente and Laredo, two Hispanic men, as their victims because they thought Hispanics carry large sums of cash and are less likely to report crimes committed against them. This assignment of error is therefore overruled.
In defendant's trial and sentence we find no error.
No error.
Judges LEWIS and TIMMONS-GOODSON concur.


DLD-106                                                          NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 16-4205
                                       ___________

                          IN RE: DENNIS JAMES MAYER,
                                                      Petitioner
                       ____________________________________

                       On a Petition for Writ of Mandamus from the
           United States District Court for the Western District of Pennsylvania
                      (Related to W.D. Pa. Civ. No. 1-15-cv-00232)
                       ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                   January 19, 2017
            Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges

                             (Opinion filed: February 7, 2017)
                                        _________

                                         OPINION*
                                         _________

PER CURIAM

       Pro se petitioner Dennis James Mayer seeks a writ of mandamus to compel the

United States District Court for the Western District of Pennsylvania to issue a final

appealable order in his federal habeas case. 1

*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  We previously dismissed Mayer’s appeal of the Magistrate Judge’s Report and
Recommendation for lack of jurisdiction. See C.A. No. 16-3338.
       By order entered on December 9, 2016, the District Court granted Respondents’

motion to dismiss, denied Mayer’s habeas petition, and declined to issue a certificate of

appealability. Because Mayer has now received the relief he requested in his mandamus

petition – a final, appealable order – we will dismiss his mandamus petition as moot. See

Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996).

                                             2