382 F.Supp.2d 1245 (2005)
Jacqueline LOPEZ, Plaintiff,
v.
DILLARD'S, INC., Defendant.
No. CIV.A.05-1093-MLB.
United States District Court, D. Kansas.
August 18, 2005.
Lawrence W. Williamson, Jr., Uzo L. Ohaebosim, Shores, Williamson & Ohaebosim, LLC, Wichita, KS, for Plaintiff.
Jeremiah J. Morgan, Lynn S. McCreary, Bryan Cave LLP-Kansas City, Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER
BELOT, District Judge.
This case comes before the court on defendant's motion to dismiss for lack of subject matter jurisdiction and to compel arbitration. (Doc. 3) The matter has been fully briefed and is ripe for decision. (Docs. 4, 10, 11.) Defendant's motion is DENIED for reasons set forth herein.
I. INTRODUCTION[1]
Plaintiff was employed by defendant in Wichita, Kansas. At all relevant times, plaintiff was also a member of the National Guard. In October, 2003, while employed by defendant, plaintiff received notice that she was being called to active duty to serve in Iraq. Defendant informed plaintiff that her job would be waiting for her when she returned. Plaintiff deployed in January, 2004, and returned in March, 2004. However, defendant forced her to reapply for her old position; and, although defendant has hired other individuals to fill plaintiff's former role, defendant has never hired plaintiff back in her former position, nor in any other capacity. (Docs. 1 at 2-3; 10 at 1-2.)
*1246 As a result, plaintiff filed the present action seeking relief under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301-4334. Plaintiff claims that under the USERRA, she was entitled to return to her previous position upon release from active duty. Rather than respond to the complaint, defendant filed the instant motion seeking dismissal and asking the court to compel arbitration pursuant to an agreement reached between the parties when plaintiff was initially hired. Plaintiff responds that the USERRA supersedes and renders unenforceable the arbitration agreement, at least as to her present claim, and allows her to proceed directly in the district court under 38 U.S.C. § 4323.
II. ANALYSIS
The issue of whether the USERRA renders unenforceable an otherwise valid agreement to arbitrate employment disputes is a matter of first impression in this circuit. In fact, it appears that there is only one reported case addressing this question. See Garrett v. Circuit City Stores, Inc., 338 F.Supp.2d 717 (N.D.Tex.2004). Accordingly, the court is writing on a relatively clean slate in deciding this motion. Garrett concluded that claims brought under the USERRA were not subject to an otherwise valid arbitration agreement. Id. at 722. This court agrees.
The arbitration agreement at issue here is governed by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16. The Supreme court summarized the purpose and history of that act as follows:
The FAA was originally enacted in 1925, 43 Stat. 883, and then reenacted and codified in 1947 as Title 9 of the United States Code. Its purpose was to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts. Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219-220 n. 6, 105 S.Ct. 1238, 1241-1242 n. 6, 84 L.Ed.2d 158 (1985); Scherk v. Alberto-Culver Co., 417 U.S. 506, 510 n. 4, 94 S.Ct. 2449, 2453 n. 4, 41 L.Ed.2d 270 (1974). Its primary substantive provision states that "[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The FAA also provides for stays of proceedings in federal district courts when an issue in the proceeding is referable to arbitration, § 3, and for orders compelling arbitration when one party has failed, neglected, or refused to comply with an arbitration agreement, § 4. These provisions manifest a "liberal federal policy favoring arbitration agreements." Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983).
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24-25, 111 S.Ct. 1647, 1651, 114 L.Ed.2d 26 (1991) (alterations in original). Moreover, it is well-established that these principles apply to agreements to arbitrate employment-related disputes. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 123, 121 S.Ct. 1302, 1313, 149 L.Ed.2d 234 (2001).
In deciding a motion to compel arbitration, the court engages in a two-step inquiry. Williams v. Imhoff, 203 F.3d 758, 764 (10th Cir.2000) (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 3355, 87 L.Ed.2d 444 (1985)). "The first task of a court asked to compel arbitration of a dispute is to determine whether the parties *1247 agreed to arbitrate that dispute." Mitsubishi Motors, 473 U.S. at 626, 105 S.Ct. at 3353. If this initial requirement is satisfied, then the second part of the inquiry asks "whether legal constraints external to the parties' agreement foreclosed the arbitration of those claims." Id. at 628, 105 S.Ct. at 3355.
Here, plaintiff expressly concedes that the parties have a valid arbitration agreement which, absent any preemption by the USERRA, would apply to the claims presented in this case. (Doc. 10 at 2.) Indeed, the arbitration agreement specifically identifies claims arising under the Veterans Reemployment Rights Act (VRRA) as indicative of the type of claims that the parties were agreeing to arbitrate. (Doc. 4 exh. A at 2.) The VRRA was one in a series of acts that provided re-employment rights to veterans, and was the predecessor to the USERRA. See Beverly L. Jacklin, Annotation, Sufficiency of veteran's application for re-employment under 38 U.S.C.A. §§ 2021 et seq., 1991 WL 741738, 103 A.L.R. Fed. 575 (1991) § 1 (2004). Thus, resolution of this motion turns on the second part of the Mitsubishi Motors test: whether the USERRA is an external legal constraint that forecloses arbitration of plaintiff's claims.
The answer to this question is controlled by 38 U.S.C. § 4302(b), which states,
This chapter supersedes any State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit.
In interpreting this provision, the court finds the preceding subsection instructive:
Nothing in this chapter shall supersede, nullify or diminish any Federal or State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that establishes a right or benefit that is more beneficial to, or is in addition to, a right or benefit provided for such person in this chapter.
38 U.S.C. § 4302(a) (emphasis added). As the underlined words demonstrate, Congress expressly referred to federal law when specifying those laws that would not be affected by enactment of the USERRA. By contrast, subsection (b) declares that the USERRA will only supersede those State laws that would limit the rights or benefits conferred by the act. Accordingly, Congress clearly did not intend for the USERRA to supersede the FAA. Hence, the FAA and its supporting case law remain applicable, despite the protections and procedures wrought under the USERRA.
Nonetheless, section 4302(b) unequivocally states that the USERRA supersedes any contract or agreement "that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit." Although the FAA was not superseded by this provision, the FAA is inapposite unless invoked by a written agreement to arbitrate. See 9 U.S.C. § 2. Here, it is undisputed that the parties had a written agreement to arbitrate the claims at issue in this case. The only question is whether that agreement limited plaintiff's rights as proscribed by section 4302(b).
A review of the arbitration agreement, along with the rules that it incorporates, shows that plaintiff would not be giving up any substantive rights by having her claim arbitrated. (Doc. 4 exhs. A and B.) Specifically, the applicable arbitration rules provide that
The arbitrator will apply the state or federal substantive law which would be *1248 applied by a United States District Court sitting where events giving rise to the claim took place. The arbitrator has the authority to interpret and apply federal, state and/or local statutes and common law which govern [plaintiff's] and [defendant's] respective claims and defenses. The arbitrator does not have the authority to enlarge upon or add to, subtract from or disregard, or otherwise alter [plaintiff's] or [defendant's] under such laws.
(Doc. 4 exh. A at 9.) In other words, the arbitrator is to apply the same substantive law, and is empowered to grant the same relief, as the court could in deciding plaintiff's case. Furthermore, the arbitration rules specifically authorize the arbitrator to grant a prevailing party fees and costs, including attorney's fees, if permitted by law. Id. Thus, the agreement does not reduce, limit, or eliminate any of the substantive rights or benefits granted by the USERRA.
That conclusion notwithstanding, it is clear that Congress did not intend to limit the sweep of section 4302(b) to substantive rights and benefits. Specifically, that subsection supersedes any agreement that imposes additional "prerequisites to the exercise of any ... right or the receipt of any ... benefit" provided by the act. The arbitration agreement does just that. It mandates that before exercising her rights under USERRA and obtaining the relief to which she is entitled thereunder, plaintiff must participate in an arbitration proceeding. Nowhere in the USERRA did Congress provide for arbitration as a means to obtain the rights granted in that act. Instead, Congress stated that a person aggrieved under the act can, but need not, seek assistance from the Secretary of Labor and the United States Attorney General in resolving the dispute. 38 U.S.C. §§ 4322, 4323(a). In addition to, or as an alternative to, those avenues of relief, an aggrieved person is authorized to bring a civil action in an appropriate United States District Court. 38 U.S.C. § 4323(b).
The arbitration agreement at issue here mandates that plaintiff seek relief in an arbitral forum. Since that type of proceeding was not addressed in the USERRA, it stands as an additional prerequisite to the exercise of plaintiff's rights and the receipt of any benefits to which she might be entitled under the act. Hence, the plain language of 38 U.S.C. § 4302(b) requires that the arbitration agreement be superseded by the USERRA.[2]
Defendant argues against this conclusion, citing examples of other federal employment statutes that are subject to legitimate arbitration agreements.[3] (Doc. 11 at *1249 9-11.) However, defendant points to no provisions in those acts, nor has the court found any, that make such sweeping statements about superceding any laws or agreements that undermine the goals of the enactment. See, e.g., Fair Labor Standards Act of 1938, 29 U.S.C. § 218 (discussing construction of the act with state and federal laws); Age Discrimination in Employment Act of 1967, 29 U.S.C. § 533 (same); Family and Medical Leave Act of 1993, 29 U.S.C. § 2651 (same); Civil Rights Act of 1964, 42 U.S.C.2000h-4 (discussing construction of the act, including Title VII, with state laws); Americans with Disabilities Act of 1990, 42 U.S.C. § 12201 (discussing construction of the act with state and federal laws). Indeed, none of these acts contain any statement that remotely approaches the sweep of 38 U.S.C. § 4302(b), with its focus on not only trampling any state law, contract, or agreement that diminishes any rights or benefits protected by the USERRA, but with the additional emphasis on striking down any "prerequisites" to the exercise of those protected rights. Cf. Garrett, 338 F.Supp.2d at 722. If the reference to prerequisites is to be given some meaning apart from preserving plaintiff's substantive rights under the act (which it must in order to avoid rendering that language mere surplusage), it must be construed as invalidating procedural changes not authorized by Congress. Defendant's arguments to the contrary are accordingly rejected.
It is clear from its brief that defendant's sole basis for challenging the court's subject matter jurisdiction is the arbitration agreement. Finding that agreement superseded by the USERRA, the court concludes that it has subject matter jurisdiction under 28 U.S.C. § 1331 and 38 U.S.C. § 4323(b)(3). Defendant's motion to dismiss for lack of subject matter jurisdiction is therefore DENIED. Likewise, defendant's motion to compel arbitration is DENIED for the reasons previously discussed.
A motion for reconsideration of this order is not encouraged. The standards governing motions to reconsider are well established. A motion to reconsider is appropriate where the court has obviously misapprehended a party's position or the facts or applicable law, or where the party produces new evidence that could not have been obtained through the exercise of reasonable diligence. Revisiting the issues already addressed is not the purpose of a motion to reconsider and advancing new arguments or supporting facts which were otherwise available for presentation when the original motion was briefed or argued is inappropriate. Comeau v. Rupp, 810 F.Supp. 1172 (D.Kan.1992). Any such motion shall not exceed three pages and shall strictly comply with the standards enunciated *1250 by this court in Comeau v. Rupp. The response to any motion for reconsideration shall not exceed three pages. No reply shall be filed.
IT IS SO ORDERED.
NOTES
[1]  For purposes of this motion, the court accepts the facts as alleged by plaintiff in her complaint and in her brief. Defendant does not dispute them and, moreover, they are not material since this motion essentially presents a pure question of law.
[2]  Plaintiff also urges the court to consider a committee report from the House of Representatives regarding interpretation of section 4302(b). That report states, in relevant part,

Section 4302(b) would reaffirm a general preemption as to State and local laws and ordinances, as well as to employer practices and agreements, which provide fewer rights or otherwise limit rights provided under amended chapter 43 or put additional conditions on those rights.... Moreover, this section would reaffirm that additional resort to mechanisms such as grievance procedures or arbitration or similar administrative appeals is not required.
H.R.Rep. No. 103-65, at 20 (1993) (emphasis added). While that language offers additional support for the court's conclusion, the Supreme Court has just recently put forth a stern reminder of the potential for abuse in drafting legislative history. See Exxon Mobil Corp. v. Allapattah Services, Inc., ___ U.S. ___, ___-___, 125 S.Ct. 2611, 2625-28, 162 L.Ed.2d 502 (2005). Finding that the language of the statute is plain and unambiguous, the court need not resort to legislative history. See id. at 2626.
[3]  Defendant also aggressively argues against the court's conclusion that the plain language of section 4302(b) supercedes this arbitration agreement. (Doc. 11 at 4-7.) The court cautions defendant regarding its repeated misuse of Supreme Court precedent in that argument. Three times in those four pages defendant cited to the dissenting opinion in E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 295, 122 S.Ct. 754, 765, 151 L.Ed.2d 755 (2002), as if it were the majority opinion. (Doc. 11 at 5, 7.) Furthermore, in a later section of its brief, defendant comes precariously close to misrepresenting the holding in Waffle House. On page 10 of its reply brief, defendant includes the following in a string citation: "Waffle House, 534 U.S. at 289, 122 S.Ct. 754 (ADA claims are subject to compulsory arbitration)." A review of that reference shows no such statement. Moreover, that was not the holding in Waffle House. To the contrary, in Waffle House, the Supreme Court found that an arbitration agreement was not enforceable against the Equal Opportunity Employment Commission when that agency was not a party to the agreement. Waffle House, 534 U.S. at 297-98, 122 S.Ct. at 766. The court assumes that defendant's conduct was unintentional. Nonetheless, defendant is cautioned against making such oversights in the future.


                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                             No. 04-1028

MONROE ROOSEVELT PARKER, JR.; GARY P. SIMMONS,
In the Matter of the Foreclosure of a Deed of
Trust executed by Gary P. Simmons, dated April
14, 2000 recorded in Book 1021, Page 628, Pitt
County Registry, H. Terry Hutchens, P.A.,
Substitute Trustee,

                                            Plaintiffs - Appellants,

          versus

DEBRA L. MILLIGAN; H. TERRY HUTCHENS; RANDY
DAVIS; COLDWELL BANKER LANDMARK PROPERTIES;
TINA LOVELADY; PENNY SIMPSON; NANCY BOONE;
PRUDENTIAL PRIME PROPERTIES; RICHARD LANE;
BRANCH   BANKING   &  TRUST  COMPANY;   IRENE
FAULKNER; ANNETTE W. BOURGEOIS; JOHN H.
HARMON; MARY ANN FLEMING; HOME STEPS ASSET
SERVICES, Evictions; STATE OF NORTH CAROLINA;
PITT COUNTY SHERIFF DEPARTMENT; CHARLENE S.
CORBETT; PITT COUNTY SUPERIOR COURT CLERK’S
OFFICE;    FEDERAL    HOME   LOAN    MORTGAGE
CORPORATION,

                                             Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.      Malcolm J. Howard,
District Judge. (CA-03-81-4-H; CA-03-454-5-H)

Submitted:   July 14, 2005                 Decided:   July 21, 2005

Before WILKINSON, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.

Monroe Roosevelt Parker, Jr., Gary P. Simmons, Appellants Pro Se.
H. Terry Hutchens, HUTCHENS, SENTER & BRITTON, Fayetteville, North
Carolina; Wayne Shelton Boyette, ROUNTREE & BOYETTE, L.L.P.,
Tarboro, North Carolina; Conrad E. Paysour, III, MATTOX, DAVIS &
BARNHILL, Greenville, North Carolina; Danny Arthur Harrington,
HARRINGTON, BRADDY & ROMARY, L.L.P., Greenville, North Carolina;
Cheryl A. Marteney, WARD & SMITH, P.A., New Bern, North Carolina,
for Appellees.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

                              - 2 -
PER CURIAM:

            Monroe Roosevelt Parker, Jr., and Gary P. Simmons appeal

the district court’s order dismissing this civil action for lack of

standing.     We have reviewed the record and find no reversible

error.   Accordingly, we affirm for the reasons stated by the

district court.   See Parker v. Milligan, Nos. CA-03-81-4-H; CA-03-

454-5-H (E.D.N.C. Nov. 18, 2003).    We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.

                                                           AFFIRMED

                                - 3 -


283 So.2d 648 (1973)
Louis JORDAN
v.
STATE.
1 Div. 367.
Court of Criminal Appeals of Alabama.
September 28, 1973.
No brief for appellant.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
W. J. HARALSON, Supernumerary Circuit Judge.
The appellant appeals from a conviction of robbery with a sentence imposed of ten years in the penitentiary.
Briefly stated, the evidence for the State shows that on October 5, 1970, the prosecuting witness, Bill Taylor, was attending night school at Twentieth Century College in Mobile, Alabama. Shortly before 8 o'clock in the evening, he, along with Bob Curry and Bob Scott, walked from the college to McDonalds Restaurant, a few blocks away, to get coffee. On their return, within a short distance of the college, they were accosted by several black males who had driven up and alighted from an automobile. Curry was knocked to the sidewalk and had his glasses broken and some personal articles taken by the attacker. Taylor was also knocked to the sidewalk, threatened with further violence and his billfold containing $32 removed by his *649 assailant. In the meantime, Bob Scott who was slightly ahead of the other two, ran to a classroom in the college, reported what had happened, and he and Louis Chappelle, the teacher conducting the class, returned immediately to the scene with several students. Both the students and the men who had been attacked saw the assailants get into an automobile and drive away, and the witness Chappelle got the tag number of the car in which they left. Later in the evening in response to a general alarm put on the air with regard to the robbery, the appellant, along with several others, was arrested by a deputy sheriff of Mobile County and taken to jail. At about 11 o'clock on the same evening the appellant, who had signed a voluntary waiver, was placed in a line-up at the city jail and identified by the prosecuting witness Taylor as the one who attacked and robbed him. State witness Curry also viewed the line-up and mistakenly identified someone who had been in the city jail for some weeks and therefore could not possibly be guilty.
As a defense the appellant sought to prove an alibi. Several witnesses were presented who testified in substance that from the middle of the afternoon of October 5, the day of the alleged robbery, until approximately 10 o'clock that night the defendant was at the home of John Henry Miller, where it appears people resorted regularly to play whist, a card game, and drink beer and wine which could be bought there.
At the conclusion of the testimony offered by the State, the appellant moved to exclude the evidence on the grounds that it was not sufficient to support the charge of robbery. The court overruled the motion.
Robbery is the felonious taking of money or goods of value from the person of another or in his presence by violence to his person or putting him in fear. Cobern v. State, 273 Ala. 547, 142 So.2d 869. Under the tendencies of the testimony, a jury question was presented which was properly submitted to the jury for its consideration.
During the progress of the trial the State examined the prosecuting witness, Bill Taylor, who made a positive in-court identification of the appellant. On direct-examination the testimony was that at the scene of the accident he observed the appellant from a distance of some three or four feet; that the place where the robbery occurred was well lighted; and that he viewed the appellant face-to-face. On cross-examination the attorney for appellant examined the witness Curry as to the line-up at the city jail which at that time had not been injected into the testimony. Following this the State on redirect examination of Taylor introduced evidence that he was present at the line-up and identified appellant. Appellant's objection to this testimony was apparently based on the fact that it came after testimony of the in-court identification. The objection was overruled by the court. The appellant made a motion for a mistrial which was also overruled.
In Franks v. State, 45 Ala.App. 88, 224 So.2d 924, this court stated:
"In Shadle v. State, 280 Ala. 379, 194 So.2d 538, our Supreme Court stated that:
"`[It] is well recognized that the granting of a mistrial is within the sound discretion of the trial court, for he, being present, is in a much better position to determine what effect, if any, some occurrence may have upon the jury's ability to decide the defendant's fate fairly and justly. And we will not interfere with the trial judge unless there had been a clear abuse of discretion.'"
We think the familiar rule above cited is applicable in this case. There is no question *650 of an illegal line-up since the appellant admitted that he voluntarily waived his rights to appear or be represented by an attorney at the line-up, and this waiver signed by the appellant is part of the evidence offered in this case.
We recognize the rule laid down in U. S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, that where a witness has viewed a suspect in an illegal line-up and later made an in-court identification of the suspect as the guilty party that the in-court identification is not admissible unless an independent origin is first established. This is a matter for the court to determine and must appear in the record from the cause.
After hearing the testimony offered on this question out of the presence of the jury, the court made the determination that the evidence objected to was admissible. With this finding we agree, and we find no error by the court in overruling the motion for a new trial.
It appears to us that there was no injury to the substantial rights of the appellant in the procedure or the court's ruling.
We have carefully reviewed the entire record as is our duty in a search for error, whether argued or not. Finding no error of a reversible nature the case is due to be affirmed.
The foregoing opinion was prepared by Honorable W. J. HARALSON, Supernumerary Circuit Judge, serving as a Judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.
The judgment below is hereby
Affirmed.
All Judges concur.


525 F.Supp. 722 (1981)
Stephen H. FOREMAN, Plaintiff,
v.
Gordon M. AMBACH, individually and as Commissioner of Education of the State of New York, The New York State Board of Regents, Willard A. Genrich, J. Edward Meyer, Kenneth B. Clark, Harold E. Newcomb, Emlyn I. Griffith, Mary Alice Kendall, Jorge L. Batista, Louis E. Yavner, Laura B. Chodos, Martin C. Barell, Louise P. Matteoni, R. Carlos Carballada, Floyd F. Linton, Salvatore J. Sclafani, as individuals and as members of the New York State Board of Regents, and New York State Department of Education, Defendants.
No. 81 Civ. 1059.
United States District Court, S. D. New York.
October 29, 1981.
*723 Boxer, Gerst & Morse, Garden City, N. Y., for plaintiff.
Robert Abrams, Atty. Gen. of the State of N. Y., New York City, for defendants; John J. O'Grady, Asst. Atty. Gen., New York City, of counsel.

OPINION
EDWARD WEINFELD, District Judge.
This is the third action, the second instituted in this Court, seeking to declare void and to enjoin enforcement of an order of the Board of Regents of the State of New York (the "Board") suspending plaintiff's state license as a podiatrist for a period of ninety days and imposing a $1,000 fine upon him. The defendants are the Board of Regents, its individual members, the Commissioner of Education of the State of New York and the State Department of Education.
The plaintiff was convicted upon his plea of guilty of the crime of conspiracy in the third degree, a Class A misdemeanor,[1] in the Criminal Court of the City of New York. The initial underlying charge was that plaintiff and other podiatrists had combined and agreed among themselves and with other persons to raise a sum of money to bribe a public official with respect to legislation then pending before the New York State Legislature that would have removed podiatry from reimbursement under the State Medicaid Program. Following the entry by plaintiff of his guilty plea, the Board, after a hearing referred to hereafter, entered the order of suspension and fine. Petitioner then sought review in the Appellate Division, Third Department, which denied his petition.[2] Thereafter leave to appeal to the New York State Court of Appeals was denied.[3]
Upon the rejection of his claim by the state courts, plaintiff commenced his first action in this Court for judgment declaring the disciplinary order void as in violation of his constitutional rights to procedural and substantive due process. Judge Goettel, to whom the case was assigned, found that the plaintiff had failed to establish any violation *724 of his constitutional rights and dismissed his complaint upon the merits.
Plaintiff then commenced the instant action under 42 U.S.C. § 1983. Simultaneously he moved for a preliminary injunction pursuant to Rule 65(a) of the Federal Rules of Civil Procedure and the defendants cross-moved to dismiss the complaint pursuant to Rule 12(b)(6). This Court denied the motion for a preliminary injunction and dismissed the defendants' cross-motion as moot. However, the dismissal was without prejudice to any motion directed to an amended complaint which the plaintiff had served during the pendency of the hearing on the motion for injunctive relief.
The defendants now move for judgment dismissing the amended complaint under Rule 12(b)(6) and pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. In support of their motion, defendants have filed a statement pursuant to local civil rule 3(g). Since the plaintiff has not filed any response thereto, all the material allegations set forth therein are deemed admitted.[4] Upon argument of this motion, the parties stipulated that there shall be included in the instant record the testimony taken on an application for a preliminary injunction in an action instituted by other podiatrists in the United States District Court, Eastern District, seeking substantially the same relief as sought by the plaintiff herein.[5]
The amended complaint alleges that the defendants under color of law violated plaintiff's rights under the Fourteenth Amendment: (1) to the equal protection of the laws in that as a podiatrist he was subjected to disciplinary procedures different from those applied to members of the medical profession similarly situated under New York law; (2) to due process of law in that the order suspending plaintiff's license failed to contain a full and proper statement of factual findings and the reasons and purposes of its conclusions; that the members of the Board of Regents "unduly and illegally" influenced members of the Charge Committee of the State Podiatry Board by directing the Committee to bring the specifications against the plaintiff; that thereafter they and others conspired to deny him a fair hearing before the Hearing Panel which heard the charges; that the order of the Board suspending the plaintiff's license was based upon a conviction illegally obtained; that the Board failed to give appropriate consideration to the circumstances of his individual background and degree of participation in the offense, as distinguished from other podiatrists whose licenses also were suspended; and that the defendants suspended plaintiff's license for reasons much less severe than was the case in the vast majority of situations similar to his case. In addition to declaratory and injunctive relief, plaintiff seeks monetary damages against the defendants in the sum of $1,000,000.[6]
Before considering plaintiff's claims of constitutional violations, it is desirable to note the following facts set forth in defendants' 3(g) statement that are not disputed: plaintiff's conviction of the crime of conspiracy, referred to above, is still in full force and effect and has not been appealed; he was represented by counsel when he entered his plea of guilty; the Assistant District Attorney who represented the prosecution at the time plaintiff entered his *725 plea did not violate any of plaintiff's rights; the Board of Regents suspended and fined petitioner upon a finding that he had been convicted of the aforesaid crime; plaintiff had a full disciplinary hearing pursuant to the provisions of the Education Law,[7] at which he appeared with counsel and plaintiff had an opportunity to testify and produce evidence on his own behalf; and none of the Panel members who heard plaintiff's case were coerced in any way to render a recommendation.
In the light of the foregoing, any claim that plaintiff was denied due process of law because the order suspending his license and imposing the fine did not contain "a full and proper statement of factual findings and the reasons and purposes of its conclusion" borders on the absurd. The determination by the Board which accepted the Hearing Panel's finding that petitioner had been convicted of a crime under New York State law was sufficient to sustain the order of suspension.[8] The Board's finding had the virtue of simplicity and specificity  the fact of conviction was never disputed  indeed, it could not, since it is conceded that it remains of record in the State Court where the judgment of conviction was entered.[9] Moreover, due process does not require that the Board articulate the reasons for its action, particularly since the statute itself specified a state conviction as professional misconduct constituting a ground for disciplinary action and the Board's action was within authorized limits.[10]
A sufficient reason for its order of suspension and fine was the fact of conviction of a serious crime  a conspiracy to corrupt a public official. While the Board here did not base its suspension upon the alternative ground of unprofessional conduct, New York courts have held in the instance of conviction of a crime of the type of which plaintiff was convicted that "unprofessional conduct on the part of a physician is not limited to acts directly relating to his treatment of patients.[11] In a case where a physician had pled guilty to conspiracy to obstruct justice and his license to practice had been revoked, the court, in upholding the order of revocation, stated:
Although we conclude that the finding of unprofessional conduct was warranted, we consider that, in any event, the semantics are not important and the determination was essentially and properly grounded upon the admitted facts underlying the conviction. Had the board chosen to rest its determination and the punishment of license revocation upon the conviction alone ... the discipline imposed could not, even then, be modified ... and this whether the facts be deemed to have given rise to two specifications or but one.[12]
We next consider plaintiff's claim that he was denied his rights under the Equal Protection clause of the Fourteenth Amendment in that as a podiatrist he was subjected to disciplinary procedures different from those applied to members of the medical profession under New York law.
The proceeding against plaintiff was instituted pursuant to § 6510 of the Education Law, which governs disciplinary procedures *726 of thirty licensed professions and which, up to 1975, included physicians. In 1975, however, the New York State Legislature enacted Public Health Law § 230, which established partially separate procedures for the discipline of physicians. These new procedures were established as part of a comprehensive effort by the Legislature to deal with a critical threat to the availability of medical services because of the lack of adequate medical malpractice insurance at reasonable rates.[13]
The major objectives of the bill, as noted by the Governor in approving it, were to guarantee the continued adequacy of medical malpractice insurance to members of the medical profession and health providers in New York State and to assure the public the basic protection to which all patients are entitled.[14] The only significant difference between the procedure under § 6510 applicable to podiatrists and other licensees mentioned therein and that applicable to physicians under § 230 of the Public Health Law pursuant to the 1975 amendment, is that in the former the findings and recommendations of the Hearing Panel are reviewed by a Regents Review Committee which submits its recommendation to the Board of Regents, whereas in the instance of physicians the Hearing Panel's findings and recommendations are reviewed by the State Commissioner of Health, who reports his recommendations thereon to the Board of Regents. In each instance, however, the Board of Regents is vested with the final power to decide whether the licensee is guilty or not guilty of the charges and what penalties, if any, are to be imposed.
Thus, in the instance of the plaintiff, the Education Department instituted a disciplinary proceeding based upon two separate charges: (1) conviction of a crime under New York law[15] and (2) unprofessional conduct.[16] After an initial presentation before a so-called Charging Committee, consisting of three podiatrists which authorized the filing of charges based on the two specifications, a hearing was held before a five-member peer panel of the Committee on Professional Conduct of the State Board of Podiatry at which plaintiff was represented by counsel. The Panel found plaintiff guilty of the first specification, but not guilty on the second, and recommended that no further punishment or action be taken against the plaintiff. In accordance with § 6510(3)(a) of the Education Law, their recommendations and the transcript of the hearing before them were submitted to a Regents Review Committee, which was under the duty of reviewing the record and in turn making its own recommendation to the Board of Regents. The Regents Review Committee agreed with the Hearing Panel on the first specification, that is, that plaintiff was guilty of a crime, but disagreed with its finding on the second specification that he was not guilty of professional misconduct and to the contrary, the Regents Review Committee found that the acts admitted by plaintiff's plea of guilty constituted professional misconduct.
Thereafter the Board of Regents voted to accept the finding that plaintiff was guilty of the first specification that plaintiff had been convicted of a crime; however, "based upon a more serious view of the misconduct committed" by plaintiff, that is, his conviction of the crime of conspiracy, the Regents ordered his license to practice as a podiatrist be suspended for three months and fined him $1,000 upon this specification. The Board then found that in view of its determination and the measure of discipline imposed, no determination need be made as to the second specification and that it was unnecessary to consider the Regents Review Committee's recommendation that the Hearing Panel's finding as to the second recommendation not be accepted.
*727 Based upon the foregoing procedure in contrast to that applied in the instance of a disciplinary proceeding against a physician, plaintiff postulates his claim of denial of equal protection of the laws. Plaintiff argues that review by the Commissioner of Health affords members of the medical profession greater protection since the Commissioner, as a member of the medical profession who must have at least ten years' experience in the actual practice of medicine, is more qualified to review recommendations by the Hearing Panel concerning professional misconduct of a practitioner than are members of the Regents Review Committee who are not members of the medical profession.[17] Plaintiff contends that podiatrists are "physicians and members of the medical profession"[18] so that denial to him of an intermediate review by the Commissioner of Health is a violation of his right to the equal protection of the laws, since there is no rational basis for the difference in the disciplinary procedures between those applied to doctors and those applied to podiatrists.
I find these contentions without substance and that they rest upon an erroneous assumption that licensed podiatrists are to be equated with licensed physicians. The New York statute, by its precise delineation of the function of each and the titles they may use makes that abundantly clear.[19] New York law expressly defines the practice of medicine as "diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition."[20] Podiatry is described as "diagnosing, treating, operating and prescribing for any disease, injury, deformity or other condition of the foot or operating on the bones, muscles or tendons of the feet for the correction of minor deficiencies and deformities of a mechanical and functional nature. The practice of podiatry includes treating simple and uncomplicated fractures of the bones of the foot; administering only local anaesthetics for therapeutic purposes as well as for anaesthesia."[21]
The limits placed upon the practice of podiatry emphasize the differences between their functions and those of physicians, who are entrusted with the health, life and well-being of their patients. Indeed, as already noted, the change in the disciplinary procedure was adopted by the Legislature in an effort to solve a critical problem affecting the health and welfare of its citizens to assure the continuance of adequate medical resources and this alone constitutes a reasonable and rational basis for the separate classification of physicians. As stated by the Supreme Court:
Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional *728 safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.[22]
And in terms pertinent to the claim here made, the Court has observed:
The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Tigner v. Texas, 310 U.S. 141 [60 S.Ct. 879, 84 L.Ed. 1124]. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. Semler v. Dental Examiners, 294 U.S. 608 [55 S.Ct. 570, 79 L.Ed. 1086]. The legislature may select one phase of one field and apply a remedy there, neglecting the others.[23]
There were sound and substantial reasons for the Legislature's separate treatment of physicians in the disciplinary process. Moreover, even were it assumed that podiatrists are members of the medical profession, the differences in their permissible functions, as specified in the state statute, justify separate treatment in the instance of disciplinary proceedings. Separate treatment of professions within the same calling has been recognized. Thus the Supreme Court has upheld a regulation excluding osteopathic physicians from practicing their profession in a state maintained hospital which was reserved for instruction of medical students attending a state university. The Court observed that "a regulation excluding from the conduct of a hospital the devotees of some of the numerous systems or methods of treating diseases authorized to practice in Texas [is not] unreasonable or arbitrary" and "is not a denial of the equal protection of the laws."[24] Separate treatment of the legal profession has also been recognized. Thus the Court, finding grounds for the difference in standings at the bar, refused to strike down under the Equal Protection clause Kansas' denial of a resident and licensed attorney's right to practice without a Kansas associate, in Kansas courts, because although he had an office in Kansas, he regularly practiced in Missouri.[25]
Considering the life-dealing responsibility of physicians in the diagnosis, treatment and operation for any human disease, pain, injury, deformity or physical condition, the much greater education and qualifications required to obtain a license to practice medicine than is the case in the instance of other licensees, including podiatrists, the consequences of adverse disciplinary action justifies the interposition of a different protective tier for physicians in the disciplinary process. In the circumstances, the designation of the State Commissioner of Health as an intermediate reviewing authority in the instance of physicians rests upon a rational and substantial basis and not to afford podiatrists an equal or equivalent reviewing authority does not violate plaintiff's right to the equal protection of the laws.
Finally, plaintiff makes a broad blunderbuss charge that defendants deprived him of his right to due process of law in that they "unduly and illegally" influenced the Charge Committee by directing its members to bring specifications against him; that thereafter they conspired to deny him a fair hearing before the Hearing Panel by coercing its members to find plaintiff guilty of the charge contained in the first specification, to wit, that plaintiff had been *729 convicted of a crime in the State of New York. These contentions are utterly lacking in substance. As to the Charge Committee, which plaintiff equates to a grand jury which may or may not sustain the charges initiated by the State Education Department, a reading of the testimony taken at a hearing before Judge Thomas C. Platt of the Eastern District brought by podiatrists other than the plaintiff,[26] indicates that members of the Charge Committee were reluctant to find that the fourteen podiatrists who had been found guilty upon their individual pleas of guilty had in fact been convicted  this, despite the fact that the entry of the convictions had been acknowledged before the Charge Committee and that certified copies of the conviction of each had been presented to the Committee. Whether their initial reluctance was due to misguided sympathy for their fellow practitioners, sheer arbitrariness, or concern that they could be sued for participating in the disciplinary process, the Assistant Attorney General assigned to the Department of Education was fully justified in advising them that they could not disregard the fact of conviction. Indeed, as Judge Platt noted during the course of the hearing, for them not to report the fact that plaintiff and his fellow conspirators had been convicted would have been a dereliction of duty. In any event, there was no impropriety in the Assistant Attorney General attached to the Department of Education advising the members of the Hearing Panel of their duties and responsibilities.
As to the claim that after the charges had been formulated the defendants conspired with others to deny plaintiff a fair hearing before the Hearing Panel by forcing and coercing its members to find plaintiff guilty of the first specification, to wit, that he had been convicted of a crime in the State of New York, not a single evidentiary matter supports this serious charge of misconduct leveled against the Board of Regents and others. Other than the averment in plaintiff's counsel's brief, which itself is without support, not the slightest factual material has been presented to sustain it or to suggest that an issue of fact exists. This charge, not sworn to, made after plaintiff's first federal suit was dismissed on the merits, is set forth in a memorandum of law by a substituted attorney that "[t]hrough confidential sources plaintiff has learned that the Hearing Panel ... was tampered with" and "the coercion of a Hearing Panel is tantamount to tampering with a jury,"[27] is sheer speculation and conjecture. Indeed, the recklessness of this charge is underscored by the defendants' unchallenged 3(g) statement that "none of the Panel members who heard the [plaintiff's] case were coerced in any way to render a recommendation."[28] What this Court said of a pro se plaintiff who made similar unsubstantiated charges in another matter bears repetition:
But were the vague conclusory allegations contained in the complaint deemed sufficient to withstand a motion to dismiss, an unwarranted burden of defense would be placed on the movants. Thus, in the Second Circuit, complaints based on conspiracy provisions of the Civil Rights Act cannot rest on vague and conclusory allegations but must "allege with at least some degree of particularity overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy." [Citations omitted]
.   .   .   .   .
Although pro se civil rights complaints must be viewed with some latitude, liberal construction of pleadings should not be permitted to override completely the rights of defendants. Plaintiff simply fails to support her allegations with any factual details that  even imaginatively considered  could connect the federal defendants to any conspiracy to deprive her of her rights or to any actual deprivation *730 of her rights. The acts alleged in furtherance of the purported conspiracy are mere speculations not supported by factual averments and, in any event, are not alleged with particularity.[29]
Plaintiff's further contention that a lesser sanction should have been imposed upon him than that imposed upon other convicted podiatrists because allegedly he played a minor role in the conspiracy is so baseless as to merit no discussion. A conspirator is a conspirator whether he plays a major role or a minor role in the illicit activity. Suspension and fine were within the Regents' authorized power and its determination gives no right to a claim for damages for violation of any constitutional right. Defendants' motion under Rule 12(b)(6) is granted, as is the defendants' motion for summary judgment, affidavits having been submitted on the application.
So ordered.
NOTES
[1]  N.Y.Penal Law § 105.05 (McKinney 1977).
[2]  Foreman v. Board of Regents, 75 A.D.2d 953, 432 N.Y.S.2d 674 (1980).
[3]  51 N.Y.2d 704 (1980). In addition to plaintiff, 13 other podiatrists were involved in the scheme to raise $100,000 in the attempt to bribe a public official. All pleaded guilty to the crime of conspiracy and thereafter the Board imposed the same disciplinary sanction upon each as was imposed upon plaintiff. The details of the proceedings under the state statute which resulted in the sanctions are set forth in Tartack v. New York State Educ. Dep't, 75 A.D.2d 953, 428 N.Y.S.2d 74 (1980).
[4]  Local civil rule 3(g) provides in pertinent part:

The papers opposing a motion for summary judgment shall include a separate, short and concise statement of material facts as to which it is contended that there exists a genuine issue to be tried.
All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
[5]  Dribbon v. Ambach, No. 81-0158 (E.D.N.Y. 1981). The motion was denied by Judge Thomas C. Platt on April 24, 1981 upon the conclusion of the hearing. Record at 65.
[6]  Upon the argument of the instant motion, the Court for the first time was apprised that following the denial of plaintiff's motion for a preliminary injunction, he complied with the order of suspension. This, of course, renders moot his claim for injunctive relief, but the claim for money damages based upon alleged violation of his constitutional rights remains.
[7]  N.Y.Educ.Law § 6510 (McKinney 1977).
[8]  N.Y.Educ.Law § 6509(5)(a) provides that "being convicted of committing an act constituting a crime under New York law" is professional misconduct and that any licensee found guilty of such misconduct is subject to penalties set forth in § 6511, including suspension or revocation of his license.
[9]  The Board specifically accepted the findings of fact of the Hearing Panel which were detailed in seven separate findings.
[10]  See Professional Staff Congress v. City University, 507 F.Supp. 637, 641-42 (S.D.N.Y. 1981); Di Marsico v. Ambach, 48 N.Y.2d 576, 424 N.Y.S.2d 107, 110, 399 N.E.2d 1129 (1979); Stolz v. Board of Regents, 4 A.D.2d 361, 165 N.Y.S.2d 179, 183 (1957); cf. Arizona v. Washington, 434 U.S. 497, 517, 98 S.Ct. 824, 836, 54 L.Ed.2d 717 (1978); Finetti v. Harris, 609 F.2d 594, 599-601 (2d Cir. 1979).
[11]  Erdman v. Board of Regents, 24 A.D.2d 698, 261 N.Y.S.2d 634 (1965) (per curiam).
[12]  Erdman v. Board of Regents, supra, 24 A.D.2d at 699, 261 N.Y.S.2d at 635 (1965); see also Mosner v. Ambach, 66 A.D.2d 912, 410 N.Y.S.2d 937 (1978).
[13]  See 1975 N.Y.Laws, ch. 109.
[14]  Governor's Memorandum on Approving L.1975, ch. 109 (May 21, 1975); see also Memorandum of State Executive Department, Medical Malpractice, McKinney Session Laws 1975.
[15]  N.Y.Educ.Law § 6509(5)(a) (McKinney 1977).
[16]  N.Y.Educ.Law § 6509(9) (McKinney 1977).
[17]  Interestingly, the Board of Regents established a procedure whereby reports and recommendations of the Commissioner of Health with respect to medical discipline cases were to be handled "in the same manner as the reports and recommendations of the hearing panels in all other professions" and, accordingly, required its three-member review committee to study the documents and recommendations received from the Commissioner of Health following which the review committee made its recommendation to the entire Board. This interposition of the Regents Review Committee, although not provided for in § 230 of the Public Health Law, was upheld by the New York State Court of Appeals in Di Marsico v. Ambach, 48 N.Y.2d 576, 424 N.Y.S.2d 107, 399 N.E.2d 1129 (1979). This procedure obviously undermines plaintiff's argument that physicians are favored in disciplinary proceedings because of the greater expertise of the State Commissioner of Health than that of the members of the Regents Review Committee.
[18]  Brief for Plaintiff at 4-5.
[19]  N.Y.Educ.Law § 6522 (McKinney 1977):

Practice of medicine and use of title "physician". Only a person licensed or otherwise authorized under this article shall practice medicine or use the title "physician".
N.Y.Educ.Law § 7002 (McKinney 1977):
Practice of podiatry and use of title "podiatrist". Only a person licensed or exempt under this article shall practice podiatry or use the title "podiatrist" or "chiropodist".
[20]  N.Y.Educ.Law § 6521 (McKinney 1977).
[21]  N.Y.Educ.Law § 7001 (McKinney 1977) (emphasis supplied).
[22]  McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1104-05, 6 L.Ed.2d 393 (1961).
[23]  Williamson v. Lee Optical, Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955).
[24]  Hayman v. City of Galveston, 273 U.S. 414, 417, 47 S.Ct. 363, 364, 71 L.Ed. 714 (1927).
[25]  Martin v. Walton, 368 U.S. 25, 82 S.Ct. 1, 7 L.Ed.2d 5 (1961).
[26]  It appears that different Charge Committees were set up in the instance of the other 14 podiatrists.
[27]  Brief of Plaintiff at 15-16.
[28]  Defendants' 3(g) statement at ¶ 11.
[29]  Morpurgo v. Board of Higher Educ., 423 F.Supp. 704, 713-14 (S.D.N.Y.1976).


          Jfn tbt Wniteb ~tates QCourt of jfeberal QCiaims
                                                                       FILED
                                          No. 15-243C
                                   (Filed: October 22, 2015)         OCT 2 2 2015
                                                                    U.S. COURT OF
                                             )                     FEDERAL CLAIMS
 PHIL IVALDY,                                )
                                             )
               Pro Se Plaintiff,             )
                                             )     Pro Se; Motion to Dismiss; Lack of
 v.                                          )     Subject Matter Jurisdiction; RCFC
                                             )     12(b )(1)
 THE UNITED STATES,                          )
                                             )
   Defendant.                                )
~~~~~~~~~ )

      ORDER GRANTING THE GOVERNMENT'S MOTION TO DISMISS

FIRESTONE, Judge.

I.     Introduction

       Pro se plaintiff Phil Ivaldy alleges that he and other members of informal groups

named the Loral Stockholder Protective Committee ("LSPC") and American Shareholder

Rights were shareholders of Loral Space and Communications Ltd. ("Loral"), which filed

for Chapter 11 bankruptcy protection in 2003 as part of an agreement to sell assets to

another company. See Pl.'s Resp. 5. Mr. Ivaldy seeks damages of $2,000,000,000 based

on actions of the United States Bankruptcy Court for the Southern District of New York

("the bankruptcy court") and the United States District Court for the Southern District of

New York ("the district court"), in connection with Loral' s bankruptcy proceeding. See

Compl. 1-2; Pl.'s Resp. 6. Mr. Ivaldy asserts that the bankruptcy court's and district
court's decisions resulted in a Fifth Amendment taking of his interest in the corporation

and deprived him of access to the federal courts in violation of his rights under the

Privileges and Immunities Clause of Article IV of the Constitution. See Compl. 1-2; Pl.'s

Resp. 6. Mr. Ivaldy also claims that the actions of the bankruptcy court and the district

court deprived him of his right to "uniform bankruptcy laws" and deprived him of his

constitutional due process rights, or that the entire bankruptcy court system is

unconstitutional. See Compl. 1-2. Mr. Ivaldy filed his original complaint on March 9,

2015 and filed an amendment to the complaint on March 13, 2015. 1

        On May 5, 2015, defendant United States ("the government") filed a motion to

dismiss the complaint, as amended, pursuant to Rules 12(b)(l) and 12(b)(6) of the Rules

of the United States Court of Federal Claims ("RCFC"). The government argues that this

court lacks jurisdiction to hear Mr. Ivaldy's takings claim because it would require the

court to review the actions of other federal courts and this court does not have jurisdiction

to "entertain a taking claim that requires the court to 'scrutinize the actions of another

tribunal." Vereda, Ltda. v. United States, 271F.3d1367, 1375 (Fed. Cir. 2001) (quoting

Allustiarte v. United States, 256 F.3d 1349, 1352 (Fed. Cir. 2001)). The government

further argues that the other constitutional provisions cited by Mr. Ivaldy are not money

mandating. Specifically, the government points to Federal Circuit precedent holding that

1
 In the cover sheet for his original complaint, Mr. lvaldy notes that this case is related to five
cases that appear to have been heard in the bankruptcy court and the district court for the
Southern District of New York: "03-41710-RDD," "04-CIV-8645-RPP," "05-7975-VM," "06-
3720-BK," and "08-510."

                                                 2
neither the Due Process Clause nor the Privileges and Immunities Clause provide for the

payment of money. See May v. United States, 534 F. App'x 930, 933 (Fed. Cir. 2013).

In the alternative, the government argues that Mr. Ivaldy fails to allege facts showing that

the actions of the bankruptcy court or the district court constitute a taking of Mr. Ivaldy's

property or a violation of Mr. Ivaldy's constitutional rights, requiring the court to dismiss

the amended complaint for failure to state a claim upon which relief can be granted

pursuant to RCFC 12(b)(6).

        In his response, filed August 5, 2015, Mr. Ivaldy repeats the allegations in his

amended complaint and states that he "does not seek to overturn the District Court'[s]

order" confirming Loral's plan of reorganization. Pl.'s Resp. ,-r 23. Instead, Mr. Ivaldy

       seek[s] to hold the United States Federal Government accountable for
       depriving the Plaintiff of access to the Federal Courts under the Privileges
       and Immunities Clause of Article IV, Section 2 of the United States
       Constitution and for depriving the Plaintiff of his shareholder assets under
       the Fifth Amendment taking clause of the United States Constitution that
       existed at the time the Bankruptcy Court issued its Order Confirming
       [Loral' s plan of reorganization].

       The court has determined that oral argument is not necessary. For the reasons that

follow, the government's motion to dismiss pursuant to RCFC 12(b)(l) is GRANTED. 2

2
 Because the court does not have jurisdiction, it does not reach the goverrunent' s alternative
grounds for dismissal pursuant to RCFC 12(b)(6).

                                                 3
II.    Legal Standards

       A pro se complaint is held "to less stringent standards than formal pleadings

drafted by lawyers." Matthews v. United States, 750 F.3d 1320, 1322 (Fed. Cir. 2014)

(quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). However, a prose plaintiff

must nevertheless meet jurisdictional requirements. Mora v. United States, 118 Fed. Cl.

713, 715 (2014) (citing Kelley v. U.S. Dep't of Labor, 812 F.2d 1378, 1380 (Fed. Cir.

1987); Bernard v. United States, 59 Fed. Cl. 497, 499 (2004)).

       The plaintiff bears the burden of establishing subject matter jurisdiction and must

do so by a preponderance of the evidence. Estes Express Lines v. United States, 739 F.3d

689, 692 (Fed. Cir. 2014) (citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d

746, 748 (Fed. Cir. 1988)). In deciding a motion to dismiss for lack of subject matter

jurisdiction, the court accepts as true all uncontroverted factual allegations in the

complaint, and construes them in the light most favorable to the plaintiff. See Cedars-

Sinai Med. Ctr. v. Watkins, 11F.3d1573, 1583-84 (Fed. Cir. 1993). However, ifa

motion to dismiss for lack of jurisdiction challenges the truth of the alleged jurisdictional

facts, a court is not restricted to the face of the pleadings and may review extrinsic

evidence in order to establish the predicate jurisdictional facts. Id. at 1584; see also

Banks v. United States, 741 F.3d 1268, 1277 (Fed. Cir. 2014).

       The Tucker Act, 28 U.S.C. § 1491, grants this court jurisdiction over claims

against the government that are founded on the Constitution, laws, treaties, or contracts of

the United States. See, e.g., Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir.

2005) (en bane in relevant part). However, the Tucker Act does not creates substantive

                                              4
rights; it only waives sovereign immunity for claims premised on other sources of law,

such as statutes or contracts, that "can fairly be interpreted as mandating compensation by

the Federal Government for the damages sustained." Jan's Helicopter Serv., Inc. v. FAA,

525 F.3d 1299, 1306 (Fed. Cir. 2008) (quoting United States v. Mitchell, 463 U.S. 206,

216-17 (1983)).

III.   Discussion

       Mr. Ivaldy's claims arise from Loral's Chapter 11 bankruptcy proceeding. See

Compl. l; Pl.'s Resp. 5. Mr. Ivaldy alleges that the bankruptcy court undervalued Loral's

assets, causing the bankruptcy court to find that Loral's liabilities were greater than its

assets and approve a plan of reorganization that resulted in Mr. Ivaldy's stock losing

value. See Comp. 3; Pl. 's Resp. 5-6. 3 Mr. Ivaldy further alleges that after the bankruptcy

court confirmed Loral's plan of reorganization, the district court improperly denied

LSPC's appeals. See Comp. 4-5; Pl.'s Resp. 3-4. 4 Mr. lvaldy also notes that he

unsuccessfully appealed the district court's decision to the United States Court of

Appeals for the Second Circuit and the United States Supreme Court. See Comp. 5; Pl.'s

3
  See generally In re Loral Space & Commc'ns, Ltd., No. 04-CIV-8645, 2004 WL 2979785
(S.D.N.Y. Dec. 23, 2004) (reversing bankruptcy court's denial of the LSPC's motion to appoint
an examiner, In re Loral Space & Commc'ns Ltd., 313 B.R. 577 (Bankr. S.D.N.Y. 2004), and
remanding for the bankruptcy court to appoint a qualified independent examiner).
4
  See generally In re Loral Space & Commc'ns, Ltd., 342 B.R. 132 (S.D.N.Y. 2006) (dismissing
LSPC's appeal of the Bankruptcy Court's confirmation order, and an order denying a motion of
the Official Committee of Equity Security Holders for leave to prosecute a fraudulent
conveyance claim, as moot after Loral' s reorganization plan had been substantially
consummated, noting that LSPC had not attempted to stay the reorganization plan); see also In re
Loral Space & Commc'ns Ltd., 346 B.R. 71 (S.D.N.Y. 2006) (denying motion for
reconsideration).

                                               5
Resp. 4. 5 In this court, Mr. Ivaldy states that he does not seek to overturn the bankruptcy

court's order confirming Loral's plan of reorganization but does seek to hold the federal

government accountable for violations of his constitutional rights and for taking his

shareholder assets that existed at the time the bankruptcy court issued the confirmation

order. See Pl.'s Resp. 6. He is seeking $2,000,000,000 for these claims.

       A.      Mr. Ivaldy's Fifth Amendment Takings Claim would Require this
               Court to Review the Actions of the Bankruptcy Court and the District
               Court.

       The court agrees with the government that it lacks jurisdiction to hear Mr. Ivaldy's

takings claim because doing so would require the court to review the actions of the

bankruptcy court and the district court. While Mr. Ivaldy argues that he does not seek to

overturn the bankruptcy court's and the district court's approval ofLoral's plan of

reorganization, Mr. Ivaldy contends that the actions of the bankruptcy court and the

district court in confirming the plan of reorganization deprived him of shareholder assets

in violation of the Fifth Amendment's Takings Clause. In support of this claim, Mr.

Ivaldy alleges that the bankruptcy court, in approving Loral's plan of reorganization,

failed to properly value Loral's assets and that, as a result, Mr. Ivaldy's shares lost value.

Therefore, it was the bankruptcy court's and the district court's approval of the plan of

reorganization that caused the taking.

5
  See generally In re Loral Space & Commc'ns Ltd., 266 F. App'x 52 (2d Cir. 2008) (affirming
the district court's denial of motion for reconsideration and finding that the underlying issue,
whether the district court properly dismissed LSPC's appeal as moot, had been waived), cert.
denied sub nom., Ivaldy v. Loral Space & Commc'ns Ltd., 555 U.S. 1126 (2009), reh'g denied,
556 U.S. 1122 (2009).

                                                6
       The Federal Circuit has consistently held that this court cannot hear a takings

claim that requires review of another court's decision. As noted above, in Vereda, Ltda.

v. United States, the Federal Circuit concluded that this court cannot '"scrutinize the

actions of another tribunal." 271 F.3d at 1375 (quoting Allustiarte, 256 F.3d at 1352);

see also Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994) ("[T]he Court of

Federal Claims does not have jurisdiction to review the decisions of district courts.").

Similarly, in Allustiarte v. United States, the Federal Circuit held that this court lacks

jurisdiction over challenges to the actions of bankruptcy courts and trustees. See 256

F.3d at 1351-52. As the Federal Circuit explained in Allustiarte, plaintiffs who are

dissatisfied with a bankruptcy court decision may appeal to a district court and then to a

court of appeals; "[t]o permit collateral attacks on bankruptcy court judgments would

'seriously undercut[] the orderly process of the law."' Id. at 13 52 (citing Celotex Corp.

v. Edwards, 514 U.S. 300, 313 (1995)). In this case, it is impossible to consider Mr.

Ivaldy's takings claim without reviewing the alleged errors in the valuation ofLoral's

assets and liabilities by the bankruptcy court and the district court. Mr. Ivaldy's takings

claim would be based on this court's disagreement with the bankruptcy court's

valuation. 6 In sum, Mr. Ivaldy's options for challenging that valuation was limited to

6
  Compare Alley's of Kingsport, Inc. v. United States, 103 Fed. Cl. 449, 452 (2012), and
Colonial Chevrolet Co. v. United States, 103 Fed. Cl. 570, 572 (2012), where the plaintiff
Chrysler and GM automobile dealerships alleged that Fifth Amendment takings occurred when
the government advised Chrysler and GM to terminate the dealerships' franchise agreements in
bankruptcy proceedings as part of obtaining financial assistance under the Troubled Asset Relief
Program (TARP). The court rejected the government's analogy to Allustiarte because the court
was "not asked to review bankruptcy court rulings in the administration of a bankruptcy .... "
Alley's, 103 Fed. Cl. at 451; Colonial, 103 Fed. Cl. 572. Instead, the Alley's and Colonial
plaintiffs claimed that "the [g]overnment' s alleged control of the TARP restructuring process

                                               7
appeals to the district court, the Court of Appeals, and the Supreme Court. The

bankruptcy court's valuation cannot be reviewed in this court.

       B.      This Court Lacks Jurisdiction to Hear Mr. Ivaldy's Remaining Claims
               because the Cited Constitutional Provisions are not Money Mandating.

       This court also does not have jurisdiction to hear Mr. Ivaldy's claims based on the

Fifth Amendment's Due Process Clause and Article IV's Privileges and Immunities

Clause, and Mr. Ivaldy's claims challenging the application of the bankruptcy laws or the

constitutionality of the bankruptcy courts, because the provisions Mr. Ivaldy cites are not

money mandating.

       Mr. Ivaldy asserts that this court has jurisdiction to hear his case under the Tucker

Act, 28 U.S.C. § 1491, because he claims money damages "aris[ing] from the United

States Constitution, Federal Statutes, and executive regulations." Compl. 2. However,

the Tucker Act provides a waiver of sovereign immunity but not a substantive right to

money damages. See, e.g., Jan's Helicopter Serv., 525 F .3d at 1306. The Federal Circuit

has identified three types of underlying monetary claims: claims alleging the existence of

a contract between the plaintiff and the government; claims where "the plaintiff has paid

money over to the Government, directly or in effect, and seeks return of all or part of that

sum"; and claims where "money has not been paid but the plaintiff asserts that he is

nevertheless entitled to a payment from the treasury." Ontario Power Generation, Inc. v.

resulted in a Fifth Amendment taking .... " Alley's, 103 Fed. Cl. at 452; Colonial, 103 Fed. Cl.
at 573; see also A & D Auto Sales v. United States, 748 F.3d 1142, 1156 (Fed. Cir. 2014) (on
appeal, finding that bankruptcy court's findings on good faith did not estop plaintiffs from
arguing in this litigation that the government coerced the automakers into action).

                                                8
United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004) (quoting Eastport S.S. Corp. v.

United States, 372 F.2d 1002, 1007-08 (Ct. Cl. 1967)). Mr. Ivaldy's claims fall into the

third category, which are "commonly referred to as claims brought under a 'money-

mandating' statute." Id. However, claims in this category "require that the 'particular

provision of law relied upon grants the claimant, expressly or by implication, a right to be

paid a certain sum."' Id. (quoting Eastport S.S., 372 F.2d at 1007). In this connection,

"neither the Fifth Amendment Due Process Clause ... nor the Privileges and Immunities

Clause provides a basis for jurisdiction in this court because the Fifth Amendment is not

a source that mandates the payment of money to plaintiff." McCullough v. United States,

76 Fed. Cl. 1, 4 (2006) (citing Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir.

1997); LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995)). Additionally, the

authority to establish "uniform Laws on the subject of Bankruptcies throughout the

United States," under Article I, Section 8 cannot fairly be interpreted as mandating

compensation by the federal government. Cf. Struck v. United States, No. 15-788, 2015

WL 4722623, at *2 (Fed. Cl. Aug. 7, 2015) (finding that the list of congressional powers

in Article I, Section 8 is not money mandating). Therefore, this court lacks jurisdiction to

hear Mr. Ivaldy's remaining constitutional claims.

IV.   Conclusion

      For these reasons, the government's motion to dismiss Mr. Ivaldy's complaint for

lack of subject matter jurisdiction pursuant to RCFC 12(b)(l) is GRANTED. The Clerk

is directed to enter judgment accordingly. No costs.

                                             9
IT IS SO ORDERED.

                    10


COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

THE STATE OF TEXAS,                                   )
)          No.  08-06-00236-CR
                                    Appellant,                        )
)   Appeal from the
v.                                                                          )
)            409th District Court
ADRIAN VALENZUELA,                                 )
)       of El Paso County, Texas
                                    Appellee.                          )
)           (TC# 20060D01510)
)

MEMORANDUM  OPINION

            Pending before the Court is the State’s motion to dismiss this appeal pursuant to
Tex.R.App.P. 42.2(a).  The State having complied with the requirements of Rule 42.2(a), the
Court has considered this cause on the State’s motion and concludes the motion should be
granted and the appeal should be dismissed.  We therefore dismiss the appeal.

November 16, 2006
DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)


730 N.W.2d 209 (2007)
VAN OORT
v.
STATE.
No. 05-2121.
Iowa Court of Appeals.
February 28, 2007.
Decision without published opinion. Affirmed.


976 So.2d 526 (2006)
JAMES ARTHUR LONG
v.
STATE.
No. CR-05-0093.
Court of Criminal Appeals of Alabama.
January 9, 2006.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Dismissed.


272 P.3d 19 (2012)
293 Kan. 1085
STATE of Kansas, Appellee,
v.
Ranell N. TURNER, Appellant.
No. 102,594.
Supreme Court of Kansas.
March 9, 2012.
*20 Lydia H. Krebs, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Lesley A. Isherwood, assistant district attorney, and Derek Schmidt, attorney general, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, former attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by ROSEN, J.:
In this appeal we again confront a question of overlapping and conflicting sentencing statutes. Because we conclude that two sentencing statutes, equally specific and both applying to the defendant's circumstances, are inconsistent in the harshness of the penalties they impose, we vacate the sentence and remand for imposition of a lesser sentence.
Prior to the convictions that are the subject of this appeal, the defendant, Ranell N. Turner, was convicted in Illinois for rape and deviant sexual assault and convicted in Kansas for rape and aggravated criminal sodomy. In March 2009, a jury convicted him of two counts of rape, K.S.A. 21-3502(a)(1)(A), two counts of aggravated criminal sodomy, K.S.A. 21-3506(a)(3)(A), two counts of criminal threat, K.S.A. 21-3419(a)(1), and one count of kidnapping, K.S.A. 21-3420. He now appeals his sentence of life imprisonment without parole.
At sentencing, the district court classified Turner as an aggravated habitual sex offender based on his record of sexually violent crimes and sentenced him to life imprisonment without parole for the rape and aggravated criminal sodomy convictions under *21 K.S.A. 21-4642. The court also imposed a 61-month prison sentence for the kidnapping conviction and two 7-month prison sentences for the criminal threat convictions, all to run concurrent with his life sentence.
Turner initially challenges his sentence under the aggravated habitual sex offender statute, K.S.A. 21-4642. When appellate arguments implicate issues relating to statutory and constitutional interpretation, this court exercises unlimited review. State v. Ballard, 289 Kan. 1000, 1006, 218 P.3d 432 (2009).
In relevant part, K.S.A. 21-4642 reads:
"(a) An aggravated habitual sex offender shall be sentenced to imprisonment for life without the possibility of parole. Such offender shall spend the remainder of the offender's natural life incarcerated and in the custody of the secretary of corrections. An offender who is sentenced to imprisonment for life without the possibility of parole shall not be eligible for parole, probation, assignment to a community correctional services program, conditional release, postrelease supervision, or suspension, modification or reduction of sentence.
. . . .
"(c) As used in this section:
(1) `Aggravated habitual sex offender' means a person who, on and after July 1, 2006: (A) Has been convicted in this state of a sexually violent crime, as described in paragraphs (3)(A) through 3(J) or (3)(L); and (B) prior to the conviction of the felony under subparagraph (A), has been convicted on at least two prior conviction events of any sexually violent crime.
(2) `Prior conviction event' means one or more felony convictions of a sexually violent crime occurring on the same day and within a single count. These convictions may result from multiple counts within an information or from more than one information. . . .
(3) `Sexually violent crime' means:
(A) Rape, K.S.A. 21-3502, and amendments thereto;
. . . .
(E) aggravated criminal sodomy, K.S.A. 21-3506, and amendments thereto. . . ."
It is not disputed that Turner qualified for sentencing under K.S.A. 21-4642. He had two prior conviction events for rape and one prior conviction event for aggravated criminal sodomy and for deviant sexual assault. These are sexually violent crimes under K.S.A. 21-4642(c)(3). He was convicted of multiple counts of rape and criminal sodomy in the present case. When viewed in isolation from the rest of the criminal code, then, K.S.A. 21-4642 required the district court to sentence him to life imprisonment without parole.
Turner contends, however, that two other statutes also govern his convictions and sentences. We will begin our analysis with his claim that the general nondrug crime sentencing guidelines statute, K.S.A. 21-4704, should govern his sentences. This statute sets out the penalties for nondrug crimes, to which severity levels have been assigned.
K.S.A. 21-3502 defines rape and provides various severity levels. Turner does not dispute that his offense fell under 21-3502(a)(1)(A), which is a severity level 1, person felony under 21-3502(c). Because he had a criminal history classification of A, Turner was subject to a sentencing grid range of 592 months (mitigated) to 620 months (standard) to 653 months (aggravated) under K.S.A. 21-4704(a). In the absence of other statutes that create exceptions to the grid sentence, Turner's crimes of conviction would fit the requirements of a gridbox 1-A sentence.
Turner argues that when the legislature allows two conflicting statutory provisions to coexist, the rule of lenity applies and the courts must follow the statutory provision more favorable to the accused. See State v. Horn, 288 Kan. 690, 693, 206 P.3d 526 (2009).
This case is distinguishable from Horn. Most notably, each of the statutory provisions at issue in Horn expressly outlined the sentencing guidelines for the same anticipatory crime of attempt. The two sentencing provisions at issue in the present case are *22 not identical. K.S.A. 21-4704 provides the guidelines to be employed when imposing the sentence for an individual convicted of a felony in general, and K.S.A. 21-4642 goes one step further and establishes the precise mandatory sentence for violent sexual offenders who have been convicted of a particular sex crime and have a history of committing acts that are similarly dangerous and sexually deviant.
We construe statutes in such a way as to avoid unreasonable results, and we presume that the legislature does not intend to enact meaningless or redundant legislation. Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 903-04, 249 P.3d 434 (2011); Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006). When statutes overlap and produce inconsistent results, we may turn to the canon of construction providing that a specific statute controls over a more general statute. State v. Chavez, 292 Kan. 464, 466, 254 P.3d 539 (2011); Horn, 288 Kan. at 692, 206 P.3d 526; In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025 (2007). As this court recently explained:
"`It is a cardinal rule of law that statutes complete in themselves, relating to a specific thing, take precedence over general statutes or over other statutes which deal only incidentally with the same question, or which might be construed to relate to it. Where there is a conflict between a statute dealing generally with a subject, and another dealing specifically with a certain phase of it, the specific legislation controls in a proper case. [Citations omitted.]'" Cochran, 291 Kan. at 907, 249 P.3d 434 (quoting Chelsea Plaza Homes, Inc. v. Moore, 226 Kan. 430, 432, 601 P.2d 1100 [1979]).
K.S.A. 21-4642 is clearly more specific than K.S.A. 21-4704. K.S.A. 21-4704 is a sentencing statute of general application, encompassing nondrug gridbox felonies. K.S.A. 21-4642 goes a step further in outlining a particular sentence for the distinct category of aggravated habitual sex offenders who are convicted of an offense from a narrowly drawn list of crimes designated as sexually violent and whose criminal history reveals at least two prior conviction events for crimes from that same list.
K.S.A. 21-4642 is a sentencing statute complete in itself, which takes precedence over sentencing statutes like K.S.A. 21-4704 that deal only incidentally with the same question. When there is a conflict between a statute dealing generally with a subject, like K.S.A. 21-4704, and another dealing specifically with a certain phase of it, like K.S.A. 21-4642, the specific legislation controls. Cochran, 291 Kan. at 907, 249 P.3d 434.
Because K.S.A. 21-4642 is complete in itself and is more specific than K.S.A. 21-4704, it controls over the general sentencing provisions of K.S.A. 21-4704.
The issue of specificity is more problematic, however, when we compare K.S.A. 21-4642 with K.S.A. 21-4704(j), which addresses the sentencing of persistent sex offenders. Turner argues that, because he qualifies both as an "aggravated habitual sex offender" under K.S.A. 21-4642(c)(1) and as a "persistent sex offender" under K.S.A. 21-4704(j)(2), the court should have imposed the more lenient sentence prescribed by K.S.A. 21-4704.
K.S.A. 21-4704(j) reads:
"(1) The sentence for any persistent sex offender whose current convicted crime carries a presumptive term of imprisonment shall be double the maximum duration of the presumptive imprisonment term. The sentence for any persistent sex offender whose current conviction carries a presumptive nonprison term shall be presumed imprisonment and shall be double the maximum duration of the presumptive imprisonment term.
"(2) Except as otherwise provided in this subsection, as used in this subsection, `persistent sex offender' means a person who: (A)(i) Has been convicted in this state of a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto; and (ii) at the time of the conviction under paragraph (A)(i) has at least one conviction for a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto in this state or comparable felony under the laws of another state, the federal *23 government or a foreign government; or (B)(i) has been convicted of rape, K.S.A. 21-3502, and amendments thereto; and (ii) at the time of the conviction under paragraph (B)(i) has at least one conviction for rape in this state or comparable felony under the laws of another state, the federal government or a foreign government. (Emphasis added.)
"(3) Except as provided in paragraph (2)(B), the provisions of this subsection shall not apply to any person whose current convicted crime is a severity level 1 or 2 felony."
Under K.S.A. 21-4642(c)(1), an aggravated sex offender is anyone who has been convicted of "a sexually violent crime" and who has at least two prior convictions of any sexually violent crimes. Under K.S.A. 21-4704(j), a persistent sex offender generally means a person who has been convicted "of a sexually violent crime" and who has "at least one conviction of a sexually violent crime" or "has been convicted of rape" and has at least one prior conviction for rape in Kansas or another state.
Turner met the definition of a persistent sex offender, and he also met the definition of an aggravated habitual sex offender. Under both definitions the defendant must be convicted of a sexually violent crime as defined in K.S.A. 22-3717. In addition, in order to be sentenced as a persistent sex offender, the defendant must have previously had "at least one conviction" for rape or some other specific sex-related crime. K.S.A. 21-4704(j)(2). In order to be sentenced as an aggravated habitual sex offender, the defendant must have previously had "at least two prior conviction events" for specific sex-related crimes. K.S.A. 21-4642(c)(1). The difference between the definitions in this regard is slight. Both have no upper limit for prior convictions, but the aggravated habitual sex offender must have at least two prior convictions, while the persistent sex offender qualifies with just one. The legislature did not, however, choose to distinguish the status of the two offenders precisely. The legislature could have drafted the persistent offender statute to be limited to those offenders who had one and only one prior conviction for a sex crime, but it elected instead to use the words "at least one," indicating that the statute also applies to an offender who has two or more prior convictions for sex crimes. See K.S.A. 21-4704(j)(2). This results in a nearly exact overlap between the two statutes. While the minimum number of requisite prior convictions makes these statutes distinguishable, it does not necessarily follow that one is more specific than the other.
Even if we could conclude that the higher number of prior convictions required by K.S.A. 21-4642(c) elevates its level of specificity over K.S.A. 21-4704(j), there are other reasons for construing K.S.A. 21-4704 to be the more specific statute, particularly in the context of Turner's present rape convictions. Even if a defendant has at least one previous conviction for a sexually violent crime, K.S.A. 21-4704 does not apply if the current crime of conviction is rape and unless the defendant has one previous conviction for rape. Because Turner's present crimes of conviction include two counts of rape, and he has two previous convictions for rape, the exception contained in K.S.A. 21-4704(j)(3) applies. K.S.A. 21-4642, on the other hand, is not specific to individuals who are convicted of rape and who have prior rape convictions. Instead, it can apply generally to offenders convicted of any 1 of 10 different "sexually violent crimes," such as indecent liberties with a child or aggravated sexual battery. From this perspective, K.S.A. 21-4704 is the more specific statute and should control with respect to the sentences imposed for the two counts of rape.
The rape for which Turner was convicted is a severity level 1 person felony. He therefore qualifies as a persistent sex offender under K.S.A. 21-4704(j)(2)(B), but not under 21-4704(j)(2)(A). K.S.A. 21-4704(j)(2)(B) is specific to the crime of rape: it applies narrowly to an individual whose present crime of conviction is rape and who had at least one prior conviction for rape. The legislature saw fit to specify convictions for rape as a special subcategory for persistent sex offenders, even though defendants under paragraph (B) also qualify under paragraph (A). Courts are to presume that the legislature *24 does not intend to enact meaningless or redundant legislation. Cochran, 291 Kan. at 903, 249 P.3d 434. The fact that the legislature singled out the crime of rape under K.S.A. 21-4704(j)(2)(B) suggests that it is more specific than K.S.A. 21-4642.
Resolution of this issue turns on which statute is more specific. Because we cannot apply consistent rules of statutory construction to determine which is more specific, we are unable to ascertain which statute the legislature intended the courts to apply under the circumstances of this case. Any reasonable doubt about the meaning of criminal statutes resulting from the existence of conflicting statutory provisions must be decided in favor of anyone who is subjected to those criminal statutes. Horn, 288 Kan. at 693, 206 P.3d 526. The rule of lenity requires that Turner be sentenced under K.S.A. 21-4704(j), and this case must be remanded to the district court with directions to impose the lesser sentence.
Turner also argues that his sentence is unconstitutional because it allows a district court to make findings regarding a defendant's prior conviction events, which he contends are factual findings that must be presented to the jury under Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We have repeatedly rejected arguments of this nature, and Turner presents no new arguments suggesting that this court should revisit those decisions. See Chavez, 292 Kan. at 470-71, 254 P.3d 539; State v. Johnson, 286 Kan. 824, 851-52, 190 P.3d 207 (2008); State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). We decline to reverse the positions we have taken in those decisions.
The sentence imposed under K.S.A. 21-4642 is vacated, and the case is remanded for imposition of sentence under K.S.A. 21-4704(j).