                  IN THE SUPREME COURT OF TEXAS
                                              ════════════
                                                NO. 14-0465
                                              ════════════

           MCGINNES INDUSTRIAL MAINTENANCE CORPORATION, APPELLANT,
                                                         v.

 THE PHOENIX INSURANCE COMPANY AND THE TRAVELERS INDEMNITY COMPANY,
                             APPELLEES

             ══════════════════════════════════════════
                    ON CERTIFIED QUESTION FROM THE UNITED STATES
                       COURT OF APPEALS FOR THE FIFTH CIRCUIT
             ══════════════════════════════════════════|

        JUSTICE BOYD, joined by JUSTICE JOHNSON, JUSTICE GUZMAN, and JUSTICE LEHRMANN,
dissenting.

         If you do not like your insurance policy, the Supreme Court of Texas can now change it

for you. Never mind all those times the Court has said “we may neither rewrite the parties’ contract

nor add to its language.”1 Forget that we have repeatedly said “[i]f an insurance contract uses

          1
            Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 162 (Tex. 2003); see also, e.g., FPL Energy, LLC v.
TXU Portfolio Mgmt. Co., 426 S.W.3d 59, 68 (Tex. 2014) (refusing to “selectively import terms” into a contract);
State Farm Lloyds v. Johnson, 290 S.W.3d 886, 893 (Tex. 2009) (holding that appraisers cannot “rewrite the policy”);
DiGiuseppe v. Lawler, 269 S.W.3d 588, 600 (Tex. 2008) (rejecting dissenting view that “would essentially rewrite
the parties’ contract”); Excess Underwriters at Lloyd’s, London v. Frank’s Casing Crew & Rental Tools, Inc., 246
S.W.3d 42, 50 (Tex. 2008) (declining to “rewrite the parties’ contract [or] add to its language”) (quoting Schaefer,
124 S.W.3d at 162); In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 191 (Tex. 2007) (“As allowing these affiliates
to compel arbitration would effectively rewrite their contracts, we hold they cannot.”); Fortis Benefits v. Cantu, 234
S.W.3d 642, 649 (Tex. 2007) (“[W]e are loathe to judicially rewrite the parties’ contract by engrafting extra-
contractual standards[.]”); Fiess v. State Farm Lloyds, 202 S.W.3d 744, 753 (Tex. 2006) (“[C]ourts must enforce the
contract as made by the parties, and cannot make a new contract for them[.]”); J.M. Davidson, Inc. v. Webster, 128
S.W.3d 223, 231 (Tex. 2003) (refusing to judicially “edit the document for comprehension, and then rewrite it to
ensure its enforceability”); HECI Exploration Co. v. Neel, 982 S.W.2d 881, 888 (Tex. 1998) (“Our decisions have
repeatedly emphasized that courts ‘cannot make contracts for [the] parties.’”) (quoting Gulf Prod. Co. v. Kishi, 103
S.W.2d 965, 968 (Tex. 1937), which in turn quotes Freeport Sulphur Co. v. Am. Sulphur Royalty Co. of Tex., 6 S.W.2d
unambiguous language, we will . . . enforce it as written.”2 Ignore our former commitment to

interpreting insurance policies by relying on the “ordinary, everyday meaning of its words to the

general public.”3 Disregard our prior conviction that a contract’s language is the best

1039, 1040 (Tex. 1928));Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 646 (Tex. 1996) (“We have long held
that courts will not rewrite agreements to insert provisions parties could have included or to imply restraints for which
they have not bargained.”); Lenape Res. Corp. v. Tenn. Gas Pipeline Co., 925 S.W.2d 565, 572–73 (Tex. 1996)
(refusing to “rewrite the parties’ bargained-for contract”); Cherokee Water Co. v. Forderhause, 741 S.W.2d 377, 379
(Tex. 1987) (“A court is without power to make a contract that the parties did not make[.]”); Dall. Power & Light Co.
v. Cleghorn, 623 S.W.2d 310, 312 (Tex. 1981) (“[A] court does not have the power to place a different interpretation
upon the contract on grounds of policy that it would be better for the lessor or landowners generally to have the
contract different.”) (quoting 2 W. SUMMERS, OIL AND GAS § 373 (1959));Transp. Ins. Co. v. Standard Oil Co. of
Tex., 337 S.W.2d 284, 289 (Tex. 1960) (“Courts are without authority to rewrite contracts, even insurance contracts.”)
(quoting Am. Auto. Ins. Co., 327 S.W.2d 519, 528 (Mo. Ct. App. 1959), which in turn quotes Forir v. Toman, 202
S.W.2d 32, 34 (Mo. 1947)), overruled in part on other grounds by Commercial Standard Ins. Co. v. Am. Gen. Ins.
Co., 455 S.W.2d 714 (Tex. 1970); Provident Fire Ins. Co. v. Ashy, 162 S.W.2d 684, 687 (Tex. 1942) (“Parties make
their own contracts, and it is not within the province of this court to vary their terms in order to protect them from the
consequences of their own oversights and failures in nonobservance of obligations assumed.”) (quoting Dorroh-Kelly
Mercantile Co. v. Orient Ins. Co., 135 S.W. 1165, 1167 (Tex. 1911)); E. Tex. Fire Ins. Co. v. Kempner, 27 S.W. 122,
122 (Tex. 1894) (“[W]here the language is plain and unambiguous, courts must enforce the contract as made by the
parties, and cannot make a new contract for them, nor change that which they have made under the guise of
construction.”); Dalton v. Rust, 22 Tex. 133, 146 (1858) (“[B]y what authority can the court assume to make a contract
for the parties, to which neither have assented?”).

         2
           In re Deepwater Horizon, No. 13-0670, ___ S.W.3d ___, ___, 2015 WL 674744, at *9 (Tex. Feb. 13, 2015);
see also, e.g., Anglo-Dutch Petroleum Int’l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 445, 451 (Tex. 2011) (“[A]n
unambiguous contract will be enforced as written[.]”) (quoting David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450
(Tex. 2008) (per curiam)); Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 23 (Tex. 2008) (“If an
insurance contract uses unambiguous language, we must enforce it as written.”); David J. Sacks, 266 S.W.3d at 450
(“An unambiguous contract will be enforced as written[.]”); Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d
857, 862 (Tex. 2000) (“When a contract is unambiguous we will enforce it as written.”); State Farm Fire & Cas. Co.
v. Reed, 873 S.W.2d 698, 699 (Tex. 1993) (“If the policy is worded so that it can be given only one reasonable
construction, it will be enforced as written.”); Sun Oil Co. (Del.) v. Madeley, 626 S.W.2d 726, 732 (Tex. 1981) (“Since
we agree the lease is unambiguous, we shall confine our review to the lease and enforce it as written.”); Life Ins. Co.
of Sw. v. Overstreet, 603 S.W.2d 780, 783 (Tex. 1980) (“[T]he contract is enforceable as written[.]”); Royal Indem.
Co. v. Marshall, 388 S.W.2d 176, 181 (Tex. 1965) (“Courts cannot make new contracts between the parties, but must
enforce the contracts as written.”); Universal C. I. T. Credit Corp. v. Daniel, 243 S.W.2d 154, 157 (Tex. 1951) (stating
that an unambiguous “contract will be enforced as written”).

         3
           Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 766 (Tex. 2014); see also, e.g., U.S. Fid. & Guar. Co. v.
Goudeau, 272 S.W.3d 603, 607 (Tex. 2008) (“Under Texas law, we are required to construe insurance policies
according to their plain language, using ‘the ordinary, everyday meaning of the words to the general public.’”) (quoting
Fiess, 202 S.W.3d at 746); Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 8 (Tex. 2007) (“Terms that
are not defined in a policy are given their generally accepted or commonly understood meaning.”).

                                                            2
representation of what the parties mutually intended.4 Those are just rules of construction, and we

have only followed them because they support freedom of contract,5 promote transactional stability

and predictability,6 and facilitate industry and commerce.7 As it turns out, those objectives are now

provisional, and like a contract, the Court’s precedential opinions are just words on paper, so you

cannot assume we really meant what we chose to say.

         At times, the Court’s members have characterized other members’ opinions as ignoring

these rules while claiming to follow them.8 The Court makes no such pretentions today. Instead, it

         4
           Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 126 (Tex. 2010); see also,
e.g., Fiess, 202 S.W.3d at 746 (“As with any other contract, the parties’ intent is governed by what they said, not by
what they intended to say but did not.”).

         5
            See, e.g., Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84, 95–96 (Tex. 2011) (observing that freedom of
contract is a fundamental Texas policy and “contracts when entered into freely and voluntarily shall be held sacred”)
(quoting Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 664 (Tex. 2008)); Fortis Benefits, 234
S.W.3d at 648–49 (“Where a valid contract prescribes particular remedies or imposes particular obligations, equity
generally must yield unless the contract violates positive law or offends public policy. This Court has ‘long recognized
a strong public policy in favor of preserving the freedom of contract.’”) (quoting Lawrence v. CDB Servs., Inc., 44
S.W.3d 544, 554 (Tex. 2001)); Gym–N–I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) (“Freedom
of contract allows parties to bargain for mutually agreeable terms and allocate risks as they see fit.”).

         6
           See, e.g., Sonat Exploration Co. v. Cudd Pressure Control, Inc., 271 S.W.3d 228, 235 (Tex. 2008)
(“Enforcing contracts according to their own terms satisfies the relevant policies of the forum, enhances certainty,
predictability, and uniformity of result, and facilitates commerce and relations with other states and nations.”); Frank’s
Casing, 246 S.W.3d at 51 (observing that “rewrit[ing] the parties’ contract” would “take[] a step back from
predictability in the law relat[ing] to business transactions in Texas”).

         7
           See, e.g., Sonat Exploration, 271 S.W.3d at 235; Frank’s Casing, 246 S.W.3d at 51; Chesapeake Operating,
Inc. v. Nabors Drilling USA, Inc., 94 S.W.3d 163, 177 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (“Industry
and commerce cannot operate in a climate that allows a contracting party who makes a bad bargain to change the
terms of a deal at its option.”).

         8
           See, e.g., Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660, 676–78 (Tex. 2008) (Hecht,
J., joined by Johnson, J., dissenting) (“A few days ago, . . . the Court ‘proclaimed itself “loathe to judicially rewrite
the parties’ contract by engrafting extra-contractual standards”’. . . . Either the Court thinks that imposing additional
duties on an insurer does not entail rewriting the policy, or else it does not find that effort quite as loathesome.”)
(quoting Frank’s Casing, 246 S.W.3d at 45, which in turn quotes Fortis Benefits, 234 S.W.3d at 649); Utica Nat’l Ins.
Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198, 208 (Tex. 2004) (Hecht, J., joined by Owen, J., dissenting) (“What
the Justices in today’s majority really meant by the assertion in Schaefer was that ‘we may neither rewrite the parties’
contract nor add to its language unless we believe we should.’”) (quoting Schaefer, 124 S.W.3d at 162); Read v. Scott

                                                            3
flatly abandons the rules and openly superimposes a meaning onto the term “suit” that the Court

concedes to be outside the term’s ordinary meaning, unsupported by the context, and indisputably

beyond what the contracting parties actually contemplated. Today the Court demonstrates that it

can and will rewrite your insurance policy if it wants to. We may look beyond the policy’s words

to decide what we think you must (or should) have meant. We will even make up our own

definitions so your words can mean something completely new. Why would the Court do this, in

spite of everything we’ve always said about construing insurance policies? Because it seems like

a good thing to do here (and on top of that, everyone else is doing it). My law professors (and my

momma) taught me better. I respectfully dissent.

                                                      I.
                                                    “Suit”

        The policies at issue require the Insurers to “defend any suit against [McGinnes] seeking

damages on account of” covered bodily injury or property damage. (Emphasis added.) Separately,

the policies require the Insurers to indemnify McGinnes by paying “all sums [McGinnes] shall

become legally obligated to pay as damages because of” covered bodily injury or property damage

“caused by an occurrence.” (Emphasis added.) And finally, the policies give the Insurers the right

(but not the duty) to “make such investigation and settlement of any claim or suit it deems

expedient.” (Emphasis added.) The issue here is whether the policies require the Insurers to defend

McGinnes against notices, requests, demands, and orders that the federal Environmental Protection

Agency (EPA) sent to McGinnis as a “potentially responsible party” (PRP) under the federal

Fetzer Co., 990 S.W.2d 732, 745 (Tex. 1998) (Abbott, J., joined by Owen, J., dissenting) (“In essence, the Court
rewrites [the contract] to require Kirby to assume control over dealer selection.”).

                                                       4
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).

See 42 U.S.C. §§ 9601–28.

         The policies obligate the Insurers to defend a “suit,” and as the Court concedes, the EPA’s

letters and orders under CERCLA do not fit within the ordinary meaning of “suit.” When

McGinnes purchased these policies in the 1960s, dictionaries defined “suit” to mean a proceeding

in a court or tribunal.9 This Court has repeatedly done the same. See Schwartz v. Jefferson, 520

S.W.2d 881, 886 (Tex. 1975) (defining “suit” as “any proceeding in a court of justice by which an

individual pursues that remedy in a court of justice which the law affords him”) (quoting Nat’l Life

Co. v. Rice, 167 S.W.2d 1021, 1023 (Tex. 1943)); see also H.H. Watson Co. v. Cobb Grain Co.,

292 S.W. 174, 176 (Tex. 1927) (same) (quoting Weston v. City Council of Charleston, 27 U.S.

449, 454 (1829)). So has the United States Supreme Court, from which we first quoted our

definition. See Weston, 27 U.S. at 454; Fed. Hous. Admin., Region No. 4 v. Burr, 309 U.S. 242,

247 n.8 (1940); Upshur Cnty. v. Rich, 135 U.S. 467, 474 (1890); Kohl v. United States, 91 U.S.

367, 375–76 (1875); Case of Sewing Mach. Cos., 85 U.S. 553, 585 (1873); Ex parte Milligan, 71

          9
            AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1287 (1969) (“[a]ny proceeding in court to
recover a right or claim”); BLACK’S LAW DICTIONARY 1603 (rev. 4th ed. 1968) (“any proceeding by one person or
persons against another or others in a court of justice in which the plaintiff pursues, in such court, the remedy which
the law affords him for the redress of an injury or the enforcement of a right, whether at law or in equity”); RANDOM
HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1421 (unabridged ed. 1966) (“the act, the process, or an instance of
suing in a court of law; legal prosecution; lawsuit”); WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE
ENGLISH LANGUAGE 2286 (1961) (“the attempt to gain an end by legal process: prosecution of a right before any
tribunal; an action or process in a court for the recovery of a right or claim: a legal application to a court for justice”);
WEBSTER’S NEW TWENTIETH CENTURY DICTIONARY OF THE ENGLISH LANGUAGE 1822 (2d ed. 1964) (“action to
secure justice in a court of law; attempt to recover a right or claim through legal action”); WEBSTER’S NEW
INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 2522 (2d ed. 1954) (“the following or attending upon a
court to obtain justice there; hence the attempt to gain an end by legal process; an action or process in a court for the
recovery of a right or claim; legal application to a court for justice; prosecution of right before any tribunal; as a civil
or criminal suit; a suit in chancery”).

                                                             5
U.S. 2, 112–13 (1866).10 Faced with this clear precedent, the Court agrees today that the common,

ordinary meaning of “suit” is “a proceeding in court.” Ante at __.11

         And the context, in which the policies contrast the term “suit” with the term “claim,”

confirms that the parties intended the ordinary meaning of “suit.” The policies provide that the

Insurers “may make [an] investigation and settlement of any claim or suit it deems expedient,” but

they only “have the right and duty to defend any suit.” (Emphases added.) This distinction between

a “suit” and a “claim” is also consistent with the common, ordinary meaning of the term “claim,”

which is “a demand for compensation or an assertion of a right to be paid,” Johnson & Higgins of

         10
            In 2006, the Supreme Court relied on this definition, in connection with its discussion of the term “action,”
to hold that a statute of limitations applied to judicial proceedings but not to administrative proceedings. BP Am. Prod.
Co. v. Burton, 549 U.S. 84, 91 (2006). The Court explained that “in 1966, . . . a commonly used legal dictionary
defined the term ‘right of action’ as ‘[t]he right to bring suit; a legal right to maintain an action,’ with ‘suit’ meaning
‘any proceeding . . . in a court of justice.’” Id. (quoting BLACK’S LAW DICTIONARY 1488, 1603 (4th ed. 1951)). We
have likewise recognized that “[t]he term ‘action’ is generally synonymous with ‘suit,’ which is a demand of one’s
rights in court.” Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex. 1995). Although the word “suit” can be “more general
in its comprehension than the word ‘action,’” both terms refer to a judicial proceeding in which parties assert claims
for relief. H.H. Watson, 292 S.W. at 176. “Historically, ‘action’ referred to a judicial proceeding in a court of law,
while ‘suit’ referred to a proceeding in a court of equity.” Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 564 (Tex.
2014) (plurality op.) (citing BLACK’S LAW DICTIONARY 2829 (7th ed. 1999)).
         11
            McGinnes does not give up so easily. It relies on two of the dictionary definitions, which include the phrase
“the attempt to gain an end by legal process,” see WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE
ENGLISH LANGUAGE at 2286; WEBSTER’S NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE at 2522,
and argues that “suit” can include any effort to obtain something through a “legal process.” McGinnes misrepresents
the definitions, however, as neither of them uses the phrase as a complete, stand-alone definition of “suit.” Webster’s
New International Dictionary of the English Language ties the phrase specifically to court proceedings: “the following
or attending upon a court to obtain justice there; hence the attempt to gain an end by legal process; an action or process
in a court for the recovery of a right or claim.” WEBSTER’S NEW INTERNATIONAL DICTIONARY OF THE ENGLISH
LANGUAGE at 2522 (emphasis added). The word “hence” indicates that an “attempt to gain an end by legal process”
is a “suit” because it is “the following or attending upon a court to obtain justice there.” See id.; see also MERRIAM-
WEBSTER’S DICTIONARY AND THESAURUS 391 (2014) (defining “hence” to mean “because of a proceeding fact or
premise”). Similarly, Webster’s Third New International Dictionary does not use the phrase as an independent
definition of the word “suit,” but instead uses it as part of a single sub-definition that directly associates it with a legal
proceeding: “the attempt to gain an end by legal process : prosecution of right before any tribunal : LITIGATION.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE at 2286 (def. 3b). Thus, as the
Court agrees, the common, ordinary meaning of “suit” is a legal proceeding in a court or tribunal.

                                                              6
Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 531 (Tex. 1998), “[t]he assertion of an existing

right; any right to payment or to an equitable remedy,” BLACK’S LAW DICTIONARY 281–82 (9th

ed. 2009), or “[t]he aggregate of operative facts giving rise to a right enforceable by a court,” id.

at 281. A claim is thus similar in this context to a “cause of action,” at least in the sense that they

both “may exist before a suit is instituted.” Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 564

(Tex. 2014) (plurality op.) (emphasis added) (quoting Magill v. Watson, 409 S.W.3d 673, 679

(Tex. App.—Houston [1st Dist.] 2013, no pet.)). A “claim” is readily distinguishable from a “suit”

if both words are given their common, ordinary meanings. A party may make a “claim” merely by

asserting a legal right or remedy against the insured, and the Insurers may elect to investigate or

settle that claim even in the absence of any further actions. But to bring a “suit,” the party must

invoke the authority of a court or tribunal to adjudicate the claim, and only that kind of action will

trigger the Insurers’ duty to defend.

       EPA letters and orders do not fall within the common, ordinary meaning of the term “suit,”

and the policies’ context does not in any way indicate the contrary. Under our well-established

rules for construing insurance contracts, that should end the matter. Unfortunately, the Court

proceeds, unrestrained by those rules.

                                                II.
                          “Suits . . . Conducted Outside a Courtroom”

       McGinnes argues that, even if the term “suit” means proceedings in a court or tribunal, we

should construe the term to include EPA letters and orders because they are the “functional

equivalent” of a “suit.” The obvious problem with this argument is the policies require the Insurers

                                                  7
to defend a “suit,” not “the functional equivalent of a suit,”12 and “we may neither rewrite the

parties’ contract nor add to its language.”13 Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154,

162 (Tex. 2003). Undeterred by such formalities, the Court concludes that “EPA proceedings” are

not just the “functional equivalent of a suit,” they are, “in actuality, . . . the suit itself, only

conducted outside a courtroom.” Ante at ___. The Court provides three justifications for its newly

invented definition: (1) CERCLA did not exist when the parties entered their contract;

(2) environmental cleanup costs can qualify as “damages” under the policies; and (3) most other

courts have reached a similar conclusion. None convinces me, but more importantly, our well-

established rules of construction do not recognize any of the Court’s reasons as a legitimate basis

for ignoring or rewriting the unambiguous language of an insurance policy.

A.       The Policies Predate CERCLA

         The Court asserts that EPA letters and orders under CERCLA are the modern equivalent

of what would have been a suit at the time the policies were written. Ante at __. It assumes that

         12
           See Foster-Gardner, Inc. v. Nat’l Union Fire Ins. Co., 959 P.2d 265, 280 (Cal. 1998) (“[T]he unambiguous
language of the policies obligated the insurers to defend a ‘suit’ not . . . the ‘substantive equivalent’ of a ‘suit.’”);
Johnson Controls, Inc. v. Emp’rs Ins. of Wausau, 665 N.W.2d 257, 305 (Wis. 2003) (Wilcox, J., dissenting) (noting
the insured “did not contract to be defended when it faced the ‘functional equivalent of a suit’; it contracted to be
defended from ‘suits’”).

         13
            Another significant problem with this argument is the difficulty of determining what is and is not the
“functional equivalent” of a “suit.” Federal and state courts adopting the functional-equivalent approach continue to
face a myriad of disputes over this issue. See, e.g., Gull Indus., Inc. v. State Farm Fire & Cas. Co., 326 P.3d 782
(Wash. Ct. App. 2014) (dispute over whether letter from Department of Energy is functional equivalent of suit); Pac.
Hide & Fur Depot v. Great Am. Ins. Co., 23 F. Supp. 3d 1208 (D. Mont. 2014) (dispute over whether PRP letter under
CECRA is functional equivalent of suit); Anderson Bros. v. St. Paul Fire & Marine Ins. Co., 729 F.3d 923 (9th Cir.
2013) (dispute over whether demand for information under CERCLA is functional equivalent of a suit); Nucor Corp.
v. Emp’rs Ins. Co. of Wausau, 296 P.3d 74, 81–82 (Ariz. Ct. App. 2012) (dispute over whether letter from state
department of environmental quality is functional equivalent of suit); Melssen v. Auto-Owners Ins. Co., 285 P.3d 328
(Colo. App. 2012) (dispute over whether notice of claim under state statute governing construction defects is
functional equivalent of suit).

                                                           8
McGinnes and the Insurers intended the policies to cover the kinds of expenses at issue here, but

they fell a little short because they defined coverage according to the mechanism the EPA used to

impose environmental cleanup costs at the time (“suits”) instead of using a broader term that would

include the mechanism the EPA now uses to impose such costs. The Court supports this conclusion

by describing the EPA’s CERCLA activities as particularly onerous, one-sided prosecutions,

implying that if McGinnes and the Insurers intended the Insurers to pay for the defense of pollution

lawsuits, surely they intended the Insurers to pay the costs associated with this far more draconian

means of compelling companies to remediate their past pollution. I am not convinced, for at least

three reasons.

       First, the post-policy changes to the EPA’s enforcement authority provide no basis for the

Court’s rewriting of the insurance policies here. “Prior to the passage of pollution control laws,

which began in the late 1960s, there was no dispute over the meaning of the term ‘suit’ as used in

CGL insurance policies. It was generally understood that a ‘suit’ was initiated with the traditional

summons and complaint.” 48 A.L.R. 5th 355, § 2[a] (1997). The parties contracted for a duty to

defend “suits” and only “suits,” expressly granting the Insurers discretion as to whether to defend

against or settle “claims” that were not asserted in a “suit.” The Court replaces these ordinary

meanings with some other, as-yet undefined meanings. The Court denies that its holding extends

the Insurers’ duty to defend “to every demand letter,” but does not say when a demand letter is a

“claim” like any other demand letter and when it is a “suit.” Ante at __.

       Similarly, the Court denies that its holding extends the Insurers’ duty to defend to “all

administrative proceedings,” but does not say which administrative proceedings will amount to a

“suit,” like those under CERCLA, and which administrative proceedings will not. Ante at __. The

                                                 9
Court simply says that “a simple demand letter threatening or prefacing a lawsuit is nothing like a

PRP letter or unilateral administrative order,” ante at __, and “EPA enforcement proceedings are

unusual,” ante at __. The difference that the Court finds between CERCLA demand letters and

other demand letters, and the difference between CERCLA investigations and other administrative

proceedings, appears to be the severity of the potential ramifications of failing to cooperate with

the EPA. But neither the EPA’s PRP letters nor its unilateral administrative orders are self-

executing under CERCLA. As with any party who receives a demand letter, a PRP has the right to

deny the EPA’s accusations and force the EPA to bring suit. See 42 U.S.C. §§ 9607(a)(4)(A), (C),

9613(b), (e), (f), (g); Gen. Elec. Co. v. Jackson, 610 F.3d 110, 114 (D.C. Cir. 2010).

       No doubt, CERCLA strongly incentivizes voluntary compliance and grants the EPA

substantial power to obtain it. But the EPA can only compel a PRP’s compliance by pursuing its

claims against the PRP in court. See Gen. Elec., 610 F.3d at 114. As the D.C. Circuit has explained,

the EPA’s four options for cleaning up a contamination site are to (1) negotiate a settlement with

the PRPs, see 42 U.S.C. § 9622; (2) clean up the site itself and seek reimbursement from PRPs in

a subsequent suit, see id. §§ 9604(a), 9607(a)(4)(A); (3) file an abatement action in federal district

court to compel PRPs to conduct the clean-up, see id. § 9606; or (4) issue a unilateral

administrative order instructing PRPs to clean the site. Gen. Elec., 610 F.3d at 114. The unilateral

administrative order is the only option that does not involve a voluntary settlement or proceedings

in a court of law. Id. But unlike a court’s judgment or a settlement agreement, PRPs are not legally

compelled to comply with unilateral administrative orders. Instead, they have the “choice” to

“refuse to comply with the [order], in which case the EPA may either bring an action in federal

district court to enforce the [order] against the noncomplying PRP . . . or clean the site itself and

                                                 10
then sue the PRP to recover costs.” Id. at 115. In other words, while CERCLA provides for strict

liability and grants the EPA extensive power to enforce its provisions, it does not render the EPA

judge and jury of a PRP’s liability. Instead, a “suit” is necessary to impose liability against the

PRP’s will, and nothing in CERCLA’s scheme transforms the EPA’s “claim” into a “suit,” under

the common, ordinary meanings of those terms.

         Second, the facts do not support the Court’s assumption that McGinnes and the Insurers

would have chosen to insure against the defense expenses if they had anticipated them. Contrary

to the Court’s suggestion, the policies were not written at a time when the EPA was imposing

liability for violation of federal environmental regulations through suits rather than administrative

processes. Instead, they were written at a time when neither the EPA nor the modern federal

environmental regulatory scheme existed at all. The EPA was created in December 1970, after

both policies were drafted and executed.14 Nor did extensive federal regulation of pollution exist

when the policies were drafted. Before 1970, pollution control was left primarily to the states,

which had done very little to implement and enforce pollution remediation requirements on private

companies.15 We cannot presume that McGinnes and the Insurers anticipated that the federal

         14
            See THE GUARDIAN: ORIGINS OF THE EPA, www2.epa.gov/aboutepa/origins-epa (last visited June 18,
2015). Private citizen actions were first authorized under federal law that same year. See Edward Lloyd, Citizens Suits
and Defenses Against Them, 59 A.L.I. 781, 812 (2009) (“Citizen suit provisions in environmental statutes originated
in the Clean Air Act in 1970.”).

          15
             See A. Myrick Freeman III, Environmental Policy Since Earth Day I: What Have We Gained?, 16 J. OF
ECON. PERSPECTIVES 125, 125 (2002) (“Earth Day I, which occurred on April 22, 1970, is an appropriate starting
point for examination of the economic benefits and costs that have been realized through United States environmental
policy. There were federal laws on the books dealing with air and water pollution prior to that date. But those laws
placed primary responsibility for the implementation and enforcement of pollution control requirements on states, and
by 1970, they had not accomplished very much.”).

                                                          11
government (or any government) would impose on McGinnes the kind of substantial

environmental cleanup costs at issue here through judicial proceedings rather than an

administrative process because we cannot presume that they anticipated that the federal

government (or any government) would impose these kind of costs at all. The kind of massive

pollution liability that exists under modern environmental regulation did not exist when these

policies were drafted.

        Moreover, the Court’s assumption that McGinnes and the Insurers intended coverage for

pollution cleanup costs is further undermined by the reality of what happened when the EPA and

governmental pollution liability did come into existence. In 1970, the year the EPA and the modern

age of federal environmental regulation and enforcement were born, the insurance industry drafted

an exclusion that denied coverage for pollution under standard-form CGL policies.16 The 1970

pollution exclusion was incorporated into the standard-form CGL policy in 1973.17 In short, the

Court’s assumption that the parties anticipated the kinds of pollution-related costs at issue here

and intended the “duty to defend any suit” to cover them finds no support in reality. The kinds of

costs that McGinnes incurred here were largely nonexistent when it purchased these policies, and

if it had purchased them a few years later, after Congress created the EPA and enacted substantial

environmental regulation, a standard-form CGL policy would have excluded them from coverage.

        16
             See BRITTON D. WEIMER ET AL., CGL POLICY HANDBOOK § 5.01[A] (2d ed. 2013).

        17
            The 1970 pollution exclusion contained an exception for “sudden and accidental” pollution, which was
later eliminated, see id. § 5.01[A], but that exception does not appear to be implicated by the facts underlying this
coverage dispute.

                                                         12
       Third, even if the Court were correct that McGinnes and the Insurers would have written

their policies to cover CERCLA response costs if they had known that such activities would

someday take place outside of judicial proceedings, Texas law does not permit courts to rewrite

the parties’ policies to say what the parties might have wanted them to say if they had contemplated

subsequent events. “[T]he parties’ intent is governed by what they said, not by what they intended

to say but did not.” Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746 (Tex. 2006). “[I]t is not for

this court to vary the terms of the contract into which the parties entered, nor to speculate as to

what might or might not have been the consequences if the contract had been differently

expressed.” Dorroh-Kelly Mercantile Co. v. Orient Ins. Co., 135 S.W. 1165, 1167 (Tex. 1911). As

the author of today’s opinion has himself explained, to “divine the parties’ reasonable expectations

and then rewrite the contract accordingly, is contrary to the bedrock principle of American contract

law that parties are free to contract as they see fit.” Utica Nat’l Ins. Co. of Tex. v. Am. Indem. Co.,

141 S.W.3d 198, 208 n.9 (Tex. 2004) (Hecht, J., joined by Owen, J., dissenting) (quoting Wilkie

v. Auto–Owners Ins. Co., 664 N.W.2d 776, 782 (Mich. 2003)). We cannot infer that the parties

must have intended the policies to cover non-existent forms of “proceedings” that might one day

arise. Even if that had been their unexpressed intent, we must determine their intent from the words

they actually used, and the word “suit” does not include such proceedings.

B.     Coverage for “Damages”

       The Court’s second reason for imposing a duty to defend here is that courts in other

jurisdictions have construed the policies’ coverage for “damages” to include CERCLA cleanup

costs—i.e., that the Insurers have a duty to indemnify against such costs. The Court reasons that

“[t]o interpret the policies as covering the damages incurred as a result of pollution cleanup

                                                  13
proceedings without giving the Insurers the right and duty to defend those proceedings creates

perverse incentives and consequences for insurers and insureds alike.” Ante at __. The Court then

identifies possible disincentives and indicates that these possibilities, whether likely or not,

“illustrate the problem with a duty to indemnify without a duty or right to defend.” Ante at __.

       This ground for rewriting the parties’ policies is problematic for several reasons. First, it

presupposes this Court’s ruling on a question that we have never decided and that is not presented

here. Not all courts have agreed that CERCLA cleanup costs are “damages” under a CGL policy.

See, e.g., Indus. Enters., Inc. v. Penn Am. Ins. Co., 637 F.3d 481, 489–90 (4th Cir. 2011) (noting

that the standard CGL policy language preceded the enactment of CERCLA in 1980 and finding

no evidence that subsequently created CERCLA liabilities somehow became automatically

includable in the term “property damage” upon the enactment of CERCLA, without any change to

the policy language). We have never addressed that issue, and we need not (and thus cannot) do

so here.

       Second, even if the term “damages” includes CERCLA cleanup costs that the insured

voluntarily accepts without any court proceedings, the Court ignores the policies’ distinction

between the Insurers’ duty to indemnify and their duty to defend. “The duty to defend and the duty

to indemnify are distinct and separate duties.” King v. Dall. Fire Ins. Co., 85 S.W.3d 185, 187

(Tex. 2002). If we treat the two duties as the same, we render meaningless the contract’s express

distinction between them. This we cannot do, even if we think our approach represents better

policy and better alignment of the parties’ interests and incentives.

       Third, recognizing the contract’s distinction between the duty to defend and the duty to

indemnify does not necessarily create “perverse incentives.” See ante at __. If in fact the Insurers’

                                                 14
duty to indemnify requires them to pay all liabilities that the insured voluntarily incurs in response

to a PRP letter or administrative order, the policies incentivize the Insurers to investigate and settle

those claims promptly to minimize their potential liabilities. But that presents a different question

than whether the Insurers must provide a defense or reimburse the costs the insured incurs in

responding to the EPA’s demands.

         According to the policies’ language, the Insurers must “pay on behalf of [McGinnes] all

sums which [McGinnes] shall become legally obligated to pay as damages because of . . . property

damage to which this insurance applies,” and may elect to investigate and settle “any claim or suit

it deems expedient.” But we are asked in this case whether they must defend McGinnes against

the EPA’s demands and orders, and under the policies’ language that duty applies only to a “suit”

seeking such damages. The policies’ use of the term “damages,” even if construed to include pre-

suit liabilities (an issue not presented here), is consistent with the common, ordinary meaning of

the term “suit” to define the Insurers’ duty to defend.

C.       Everybody’s Doing It.

         The Court’s third reason for construing the policies to require the Insurers to defend against

CERCLA activities is that most other jurisdictions are doing it. See ante at __ (following the

majority position to “strive for uniformity as much as possible”) (quoting Trinity Universal Ins.

Co. v. Cowan, 945 S.W.2d 819, 824 (Tex. 1997)). As the Court points out, its position is the

majority position, and the more recent opinions have followed the majority position.18 See ante at

         18
           See, e.g., Anderson Bros., 729 F.3d at 934 (treating all PRP letters, and even section 9604 requests for
information, as “suits” under the functional-equivalent approach regardless of content); Travelers Cas. & Sur. Co. v.
Ala. Gas Corp., 117 So. 3d 695, 696 (Ala. 2012) (“Taking into account the various components of this PRP letter and

                                                         15
__. But a number of courts in other jurisdictions have rejected that position, for the text-based

reasons that Texas law has adhered to until today.19

         While we desire to create uniformity when construing insurance forms used in multiple

jurisdictions, the Court candidly admits that we cannot achieve uniformity here. Ante at ___

(recognizing that “[w]e cannot achieve uniformity with our decision; the courts have already

its ramifications, we find that the legal proceeding initiated by the receipt of that notice is the functional equivalent of
a suit brought in a court of law.”); R.T. Vanderbilt Co. v. Cont’l Cas. Co., 870 A.2d 1048, 1058 (Conn. 2005) (“[W]e
find that ‘[t]he consequences of the receipt of the EPA letter [are] so substantially equivalent to the commencement
of a lawsuit that a duty to defend [arises] immediately.”) (citing Hazen Paper Co. v. U.S. Fid. & Guar. Co., 555 N.E.2d
576, 581 (Mass. 1990)); Mich. Millers Mut. Ins. Co. v. Bronson Plating Co., 519 N.W.2d 864, 866 (Mich. 1994)
(“[T]he term ‘suit,’ as used in the insurance policies at issue, is ambiguous and capable of application to legal actions,
other than court proceedings, that are the functional equivalent of a suit brought in a court of law.”), overruled in part
on other grounds by Wilkie, 664 N.W.2d 776.

         19
             See, e.g., Ray Indus., Inc. v. Liberty Mut. Ins. Co., 974 F.2d 754, 761 (6th Cir. 1992) (“We believe that
‘suit’ has a plain and unambiguous meaning that excludes the PRP letter in this case. In common usage, a suit generally
involves an adjudicatory proceeding in a court of law.”) (analysis based on Sixth Circuit’s interpretation of Michigan
law, but Michigan Supreme Court later concluded in Mich. Millers Mutual, 519 N.W.2d at 868–70, that word “suit”
was ambiguous in this context); Harleysville Mut. Ins. Co., Inc. v. Sussex Cnty., Del., 831 F. Supp. 1111, 1132 (D.
Del. 1993) (“The Court is mindful of the serious nature of the letters from the EPA advising the County of its potential
CERCLA liability. However, the insurance policies at issue in this case limit the insurers[’] duty to defend to ‘suits’
and the Court will not deprive the insurers of the benefit of their bargain by forcing them to defend against an
administrative proceeding, no matter how serious the consequences of that proceeding might be to the insured.”),
aff’d, 46 F.3d 1116 (3d Cir. 1994); id. (“Pursuant to [CERCLA], the EPA can file a lawsuit against a PRP . . . or it can
contact the PRP and try to secure its voluntary cooperation as it did in this case. Recognizing the difference in these
approaches provides a clear line of demarcation between situations that do and do not trigger the insurer’s duty to
defend.”); Foster-Gardner, 959 P.2d at 280 (“The primary attribute of a ‘suit,’ as that term is commonly understood,
is that parties to an action are involved in actual court proceedings initiated by the filing of a complaint.”); id. at 279
(“[T]he policies do not treat the terms ‘suit’ and ‘claim’ as interchangeable, but consistently treat them separately.
This careful separation indicates that the insurers’ differing rights and obligations with respect to ‘suit[s]’ and
‘claim[s]’ were deliberately and intentionally articulated in the policies.”) (citation omitted); id. at 280 (“There is
nothing in the policy language to support the interpretation that some pre-complaint notices are ‘suits’ and some are
not. Rather, the unambiguous language of the policies obligated the insurers to defend a ‘suit’ not . . . the ‘substantive
equivalent’ of a ‘suit.’”); id. at 287 (“Our conclusion that a ‘suit’ is a court proceeding initiated by the filing of a
complaint creates a ‘bright-line rule that, by clearly delineating the scope of risk, reduces the need for future
litigation.’”); Lapham-Hickey Steel Corp. v. Prot. Mut. Ins. Co., 655 N.E.2d 842, 847 (Ill. 1995) (agreeing with the
“group of courts that have found that the word ‘suit’ is unambiguous and have given the word its plain meaning, which
requires the commencement of some action in a court of law before an insurer’s duty to defend is triggered; thus, the
issuance of a PRP letter does not invoke the duty to defend”), as modified on denial of reh’g (Oct. 2, 1995); id. at
847–48 (“If all of the policy’s language is to be given effect, then the words ‘suit’ and ‘claim’ . . . must have different
meanings. . . . If the word “suit” was broadened to include claims, in the face of policy language which distinguishes
between the two, any distinction between these two words would become superfluous.”).

                                                            16
split”). Under such circumstances, when the “tests already in use render uniformity impossible,”

we “adhere to the law of Texas” and refuse to “stretch[]” the “plain meaning” of a policy’s terms.

U.S. Fid. & Guar. Co. v. Goudeau, 272 S.W.3d 603, 608 (Tex. 2008). “Under Texas law, we are

required to construe insurance policies according to their plain language,” id. at 607, and we have

never ignored a policy’s plain language simply to achieve uniformity among the different

jurisdictions. Even if we were to do so, we should not do it here, when “[w]e cannot achieve

uniformity with our decision [because] the courts have already split.” Ante at ___.

                                                III.
                                             Conclusion

       Less than four years ago, this Court explained that the circumstances surrounding the

execution of a contract may shed light on the meaning of its words, but we must rely on the words

themselves to determine the contract’s effect:

       Understanding the context in which an agreement was made is essential in
       determining the parties’ intent as expressed in the agreement, but it is the parties’
       expressed intent that the court must determine. Extrinsic evidence cannot be used
       to show that the parties probably meant, or could have meant, something other than
       what their agreement stated.

Anglo-Dutch Petroleum Int’l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 445, 451 (Tex. 2011).

Today the author of that opinion agrees that the term “suit” means “an attempt through process in

court,” yet relies on extrinsic circumstances and other jurisdictions’ holdings to conclude that the

term “must also include CERCLA enforcement proceedings by the EPA,” even though he agrees

they are not “an attempt through process in court.” Ante at __. This is a disturbing decision, not

because of its effect on these parties or the insurance policies at issue, but because of its effect on

Texas law. I can only hope that today’s decision will soon be seen as a fluke, an oversight, and a

rare misstep by a Court that has otherwise been steadfastly committed to enforcing contracts as

                                                  17
written, to refraining from rewriting parties’ agreements, and to determining the parties’ intent by

relying on the ordinary meanings of the terms the parties choose.

       For these reasons, I respectfully dissent.

                                                         _____________________
                                                         Jeffrey S. Boyd
                                                         Justice

Opinion delivered: June 26, 2015

                                                    18


COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-261-CR

CARRY LAMONT TUCKER	APPELLANT

V.

THE STATE OF TEXAS	STATE

------------

FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

------------

MEMORANDUM OPINION
(footnote: 1)
------------

I.  Introduction

Appellant Carry Lamont Tucker, a pro se appellant, raises six points challenging his conviction for aggravated robbery.  In five points, Tucker argues that his trial counsel was ineffective, and in his remaining point, Tucker contends that the trial court erred by denying his requested article 38.23 jury instruction.  We will affirm.

II.  Factual And Procedural Background

Robert Bauer, assistant manager of a Braum’s store in Fort Worth, was getting in his car after closing the store one night when a man with a gun approached him in the parking lot.  The man held the gun to Bauer and threatened to kill him if he did not go back inside the store.  Inside the store, the man forced Bauer to open two safes in the back room and put the money from the safes in a Braum’s bag.  The man then directed Bauer to the front of the store, where they saw a police officer in the parking lot.  The man ran to the back of the store, yelling for Bauer to come with him, but Bauer ran out the front door toward the officer.

The officer—Officer Seals—had stopped at the store because he saw Bauer’s car with its drivers side door open in the parking lot.  Bauer told Officer Seals that the robber was a black male, around 5'10" and 180 pounds, wearing a blue basketball jersey, a black hooded sweatshirt, black pants, and a blue bandana.  Officer Buchanan arrived on the scene, and Officer Seals gave him a brief description of the robber.  Officer Buchanan also talked to Bauer, who reiterated the description of the robber.  The first call that went out to the other officers described the robber has a black male, 5'10" and 180 pounds, wearing a basketball jersey.  A second call went out minutes later that the robber was also wearing a black “hoodie,” and a third call added that the jersey was light blue and that the robber wore a blue and white bandana over his face.

Officer Brooks heard the call and drove to a nearby apartment complex to look for the robber.  He noticed a maintenance shed was partially opened and found a black hooded sweatshirt, a black baseball cap, a Braum’s bag containing cash and checks, and a pistol inside.

Officer Buchanan left Braum’s, joined the search at the apartment complex, and viewed the items in the shed.  The officer saw Tucker walking in a breeze way in the complex and observed that he was “about the same height and weight given” and wearing a blue basketball jersey and black pants.  The officer informed Tucker that he matched the description of a robbery suspect and detained him until Bauer arrived at the complex.  Bauer recognized Tucker’s blue basketball jersey, black pants, Nike shoes, height, weight, and voice.

At trial, a forensic analyst testified that a DNA sample from the cuff of the black sweatshirt contained a mixture of DNA from two or three individuals, including Tucker.  The analyst testified that she could exclude 99.9999% of the population as contributors of the DNA but that Tucker could not be excluded.  The jury convicted Tucker of aggravated robbery, and after he pleaded true to two felony enhancements alleged in the indictment, the trial court sentenced him to life in prison.  This appeal followed.

III.
Article 38.23 Instruction

In his fifth point, Tucker argues that the trial court erred by denying his requested jury instruction on reasonable suspicion pursuant to article 38.23 of the code of criminal procedure.
(footnote: 2)  That instruction would have instructed the jury to disregard evidence obtained from Tucker’s detainment unless it found “beyond a reasonable doubt that Officer Buchanan had reasonable suspicion, based on articulable facts to temporarily detain the Defendant for the offense of aggravated robbery; to wit: that the Defendant fit the description of the robber, as Officer Buchanan believed that description to be at the point in time that he detained the Defendant.”

At the suppression hearing and at trial, Tucker’s trial counsel played an audiotape recording of the police radio broadcasts from the night of the robbery.  At one point in the recording, an unidentified officer says, “This isn’t him.”  Officer Buchanan testified at the suppression hearing and at trial that the voice was Sergeant O’Neil’s and that, after Tucker was arrested, Officer Buchanan learned that Sergeant O’Neil had stopped Tucker and let him go sometime before Officer Buchanan stopped him.  At trial—presumably based on Officer Buchanan’s testimony—Tucker’s trial counsel called Sergeant O’Neil to testify for the defense.  He testified that he was searching the apartment complex for someone matching the radio description.  He saw Tucker in the complex and stopped and asked him some questions but let him go because he was “calm, cool, and collected.”  Sergeant O’Neil testified, “Well, I had plenty of probable cause to detain him.  I made a momentarily poor decision in judgment there based off a predisposed hunch that we were looking for somebody that was running or hiding in or near the area.”  Sergeant O’Neil testified that he was not the one who said “[t]his isn’t him” on the audiotape, but he recognized the voice as belonging to Corporal Alldredge.  Corporal Alldredge did not testify at trial.

In support of an article 38.23 jury instruction, Tucker’s trial counsel argued that because two other officers—Sergeant O’Neil and Corporal Alldredge—knew the description of the robber and determined that Tucker did not fit the description, a question of fact existed as to whether Officer Buchanan had reasonable suspicion.

Appellate review of error in a jury charge involves a two-step process.
Abdnor v. State
, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994).  Initially, we must determine whether error occurred.
Id.
  If so, we must then evaluate whether sufficient harm resulted from the error to require reversal.
Id.
 at 731–32.

Under article 38.23 of the code of criminal procedure, no evidence obtained in violation of the federal or state constitutions or laws may be admitted in evidence against the accused.  Tex. Code Crim. Proc. Ann. art. 38.23(a).  When the evidence raises an issue regarding a violation, the jury must be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the law, it must disregard the illegally obtained evidence.
Id.
  A defendant’s right to the submission of jury instructions under article 38.23(a) is limited to disputed issues of fact that are  material to his claim of a constitutional or statutory violation that would render evidence inadmissible.
Madden v. State
, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007).  To raise a disputed fact issue warranting an article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question.
Id.
 at 513.   If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone as a question of law.
Id.
 at 510.

Contrary to Tucker’s assertions, Sergeant O’Neil’s testimony and Corporal Alldredge’s statement on the audiotape do not raise fact issues disputing Officer Buchanan’s authority to detain Tucker.
See id.
 Sergeant O’Neil testified that he had “plenty of probable cause” to detain Tucker but that he did not do so because Tucker’s behavior—rather than his appearance—did not fit O’Neil’s preconceived notion of the suspect.  Regarding the audio recording, the record does not show to whom Corporal Alldredge was referring when he said, “This isn’t him.”  Even assuming that Corporal Alldredge was talking about Tucker, his statement does not controvert the facts supporting Officer Buchanan’s detention of Tucker.

The uncontroverted record evidence demonstrates that (1) the victim told Officer Buchanan that the suspect was a black man, approximately 5'10", of average weight, and wearing a black hoodie, a blue basketball jersey, and black pants and that he had a pistol; (2) Officer Buchanan heard the police radio broadcast that someone saw a man who matched the suspect’s description running into a nearby apartment complex; (3) Officer Buchanan viewed the items found in the shed at the apartment complex, including a black hoodie and a gun; and (4) he saw “a black male about the same height and weight given with a blue basketball jersey and black pants” about 100 feet from the shed where the items were found.  The evidence in the record does not dispute or question the evidence upon which Officer Buchanan relied to detain Tucker; that Tucker disagrees with the conclusion that reasonable suspicion was shown as a matter of law is not the same as Tucker controverting the facts.
See Garza v. State
, 126 S.W.3d 79, 86 (Tex. Crim. App. 2004).  Thus, because there was no evidence of a disputed fact warranting an article 38.23(a) jury instruction, we hold that the trial court did not err by denying Tucker’s requested instruction.
See id.
 at 513;
Cate v. State
, 124 S.W.3d 922, 928 (Tex. App.—Amarillo 2004, pet. ref’d).  We overrule Tucker’s fifth point.

IV.
Ineffective Assistance of Counsel

In his first, second, third, fourth, and sixth points, Tucker contends that he was denied his right to effective assistance of counsel.  Specifically, Tucker contends that his trial counsel (1) failed to conduct an adequate pretrial investigation of the case; (2) failed to call an available witness at trial to contradict the State’s evidence; (3) failed to file a motion for production of witness statements pursuant to rule of evidence 615; and (4) failed to adequately investigate prior void convictions and apply the correct law to those prior convictions at the punishment phase of trial.

A.  Standard of Review

To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his
counsel’s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different.
Strickland v. Washington
, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);
Salinas v. State
, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Mallett v. State
, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);

Hernandez v. State
, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999)
;
 Thompson

v. State
, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case.
Thompson
, 9 S.W.3d at 813.  The issue is whether counsel’s assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error.
See Strickland
, 466 U.S. at 688–89, 104 S. Ct. at 2065.  Review of counsel’s representation is highly deferential, and the reviewing court indulges a strong presumption that counsel’s conduct fell within a wide range of reasonable representation.
Salinas
, 163 S.W.3d at 740;
Mallett
, 65 S.W.3d at 63.  A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim.
Thompson
, 9 S.W.3d at 813–14.  “In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions.”
Salinas
, 163 S.W.3d at 740 (quoting
Mallett
, 65 S.W.3d at 63).  To overcome the presumption of reasonable professional assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.”
Id.
 (quoting
Thompson
, 9 S.W.3d at 813).  It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record.
Mata v. State
, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

The second prong of
Strickland
 requires a showing that counsel’s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable.
Strickland,
466 U.S. at 687, 104 S. Ct. at 2064.  In other words, appellant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
Id.
 at 694, 104 S. Ct. at 2068.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Id.
  The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.
Id.
 at 697, 104 S. Ct. at 2070.

B.  Counsel’s
Investigation of the Case

Tucker first argues that his trial counsel was ineffective because he failed to adequately investigate and apply pertinent facts of the case to Tucker’s motion to suppress evidence.  He claims that a proper investigation of the facts would have shown that he did not fit the description of the robber.  Tucker does not explain how any additional investigation would have shown that he failed to match the description of the suspect.

In a separate point, Tucker also argues that his trial counsel was ineffective because he failed to conduct a pretrial investigation of facts to support a jury instruction on reasonable suspicion pursuant to article 38.23.  Specifically, he claims that trial counsel failed to properly identify the person on the audiotape of the police radio broadcast who said, “This isn’t him.”

The record demonstrates that Tucker’s trial counsel thoroughly explored the issue of whether Tucker matched the description of the suspect and whether Officer Buchanan had reasonable suspicion to detain him.  He cross-examined Bauer and the officers who testified for the State about the specific description of the suspect, and he called Sergeant O’Neil to testify for the defense that he stopped Tucker but determined that he was not the suspect.  Tucker’s trial counsel also introduced into evidence the audio recording of the police description of the suspect and of an officer saying, “This isn’t him.”  Tucker seems to argue that had his trial counsel identified Corporal Alldredge as the speaker on the audio recording before trial, he could have called the corporal to testify at trial, but Tucker fails to show how he would have benefitted from the corporal’s testimony.
(footnote: 3)
 See Wilkerson v. State
, 726 S.W.2d 542, 551 (Tex. Crim. App. 1986),
cert. denied
, 480 U.S. 940 (1987) (holding that absent a showing that a potential witness would have benefitted the defense, counsel’s failure to call the witness is of no moment).  Tucker fails to overcome the presumption of reasonable professional assistance.
See

Thompson
, 9 S.W.3d at 814.

C.  Failure to Call Available Witnesses

Tucker also argues that trial counsel was ineffective because he failed to call Officer Seals—the first officer to arrive at Braum’s the night of the robbery—to testify at trial.  Tucker contends that Officer Seals would have contradicted the State’s evidence but fails to show what Officer Seals’s testimony would have been or that Tucker would have benefitted from his testimony.
(footnote: 4)

Again, without this showing, Tucker fails to overcome the presumption that his trial counsel provided reasonable professional assistance.
See Simms v. State
, 848 S.W.2d 754, 758 (Tex. App.—Houston [1st Dist.] 1993, pet. re’d)

(citing
Wilkerson
, 726 S.W.2d at 551).

D.  Motion for Production of Witness Statements

Tucker further contends that he received ineffective assistance at trial because his trial counsel failed to file a motion for production of Bauer’s written statement to police.  Texas Rule of Evidence 615(a) requires that after a witness has testified on direct examination, a trial court, on motion of a party who did not call the witness, shall order the production of the witness’s written statement relating to the matter testified.  Tex. R. Evid. 615(a).  The record shows that Bauer went to the police station after the robbery and spoke with a detective, but there is no evidence that he provided a written statement.  Additionally, the record is silent as to why trial counsel did not request any written statements.  Therefore, Tucker fails to rebut the presumption that this decision was reasonable.
See Thompson
, 9 S.W.3d at 814.

E.  Admission of Prior Convictions During Punishment

Tucker finally argues that trial counsel was inadequate because he failed to adequately investigate Tucker’s prior void convictions and apply the correct law to those prior convictions at the punishment phase of trial.  Specifically, Tucker argues that his prior conviction for assault on a correctional officer should not have been used for enhancement purposes because his sentence for that conviction did not begin to run until after his sentence for a prior aggravated robbery conviction ceased to operate.
(footnote: 5)

Nothing in the record supports Tucker’s contention.  His indictment included a habitual offender notice based on two prior convictions—one in December 1999 for assault on a correctional officer and one in November 1994 for an aggravated robbery.  The State introduced a pen packet containing the judgment and sentence for the prior offenses.  This information was sufficient to satisfy section 12.42(d) of the penal code.
See
Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2008) (providing for enhanced punishment upon showing that defendant was finally convicted of two felony offenses and that the second previous felony conviction was for an offense that occurred subsequent to the first previous conviction having become final);
Langston v. State
, 776 S.W.2d 586, 587 (Tex. Crim. App. 1989) (holding copies of judgment and sentence was proof of prior conviction).  The finality of the convictions does not hinge on whether the sentence for the second previous felony conviction ran consecutively or concurrently with the first previous felony conviction.  The record demonstrates that the prior convictions were properly considered for enhancement purposes.

Having disposed of each of Tucker’s ineffective assistance arguments,
we hold that he failed to overcome the strong presumption that his trial counsel rendered adequate assistance and overrule his first, second, third, fourth, and sixth points
.
See Strickland
, 466 U.S. at 690, 104 S. Ct. at 2066.

V.  Conclusion

Having overruled Tucker’s six points, we affirm the trial court’s judgment.

PER CURIAM

PANEL: WALKER, J.; CAYCE, C.J.; and LIVINGSTON, J.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: November 13, 2008

FOOTNOTES
1:See
Tex. R. App. P.
47.4.

2:See
Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005).

3:Even if Corporal Alldredge would have testified that he also stopped Tucker and determined that he did not fit the description of the suspect, we have already explained in section III above how this testimony would not create a fact issue regarding Officer Buchanan’s basis for reasonable suspicion to detain Tucker.

4:The police call sheet admitted at trial contains the description of the robber as broadcasted by Officer Seals over the police radio.  Tucker argues that because the call sheet does not include “black pants” in the description of the robber, Officer Seals would have controverted Officer Buchanan’s testimony that the robber was described as wearing black pants.  But Officer Buchanan testified that the victim himself told him that the robber wore black pants.

5:Tucker also complains of a third prior conviction contained in the pen packet introduced at trial, but the State did not rely on this conviction to enhance Tucker’s range of punishment.  Thus, Tucker’s argument that this conviction should not have been used for enhancement purposes is without merit.


               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                           No. 98-20407
                         Summary Calendar

REGINALD LYNN RANDALL,

                                           Plaintiff-Appellant,

versus

BILLY REEVES ET AL.,

                                           Defendants,

BILLY REEVES; ROSENDO BOTELLO;
BILLY WILLIAMS,

                                           Defendants-Appellees.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Southern District of Texas
                       USDC No. H-95-CV-98
                       - - - - - - - - - -

                           June 24, 1999

Before POLITZ, GARWOOD, and SMITH, Circuit Judges.

PER CURIAM:*

     Reginald Lynn Randall appeals the summary judgment in favor

of Billy Reeves, Billy Williams, and Rosendo Botello (the

defendants).   The magistrate judge held the defendants were

entitled to qualified immunity because Randall had not presented

sufficient competent evidence to counter the defendants’

     *
        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.
                             No. 98-20407
                                  -2-

allegations that they acted reasonably in restraining Randall and

that any injuries he had incurred were the result of the actions

necessary to subdue him.

     The magistrate judge failed to consider Randall’s verified

complaint and More Definite Statement when reviewing the summary-

judgment evidence.   A verified complaint may serve as competent

summary-judgment evidence.    King v. Dogan, 31 F.3d 344, 346 (5th

Cir. 1994).   When these items are considered, genuine issues of

material fact exist regarding the objective reasonableness of the

defendants’ actions against Randall and the cause of his

injuries.   See Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir.

1993)(second step for determining qualified immunity is to

“decide whether the defendant’s conduct was objectively

reasonable”).   The magistrate judge erred in granting summary

judgment on Randall’s excessive-force claims under 42 U.S.C.

§ 1983, and the decision should be reversed.

     The magistrate judge also erred in granting summary judgment

for the defendants on Randall’s state-law claims.    Although the

magistrate judge was correct in asserting that the Texas Tort

Claims Act does not govern suits against a state employee, see

Perales v. Kinney, 891 S.W.2d 731, 733 (Tex. App. 1994), it does

not appear that Randall alleged a cause of action under that Act.

On its face, Randall’s complaint alleges a cause of action for

“violations of state common law tort and assault,” although he

sets forth the issue using language of the Texas Tort Claims Act

regarding the use of tangible property.     However, Randall’s pro
                             No. 98-20407
                                  -3-

se complaint should be construed liberally.    Haines v. Kerner,

404 U.S. 519, 520 (1972).    The magistrate judge erred in

dismissing Randall’s state common-law claims under the Texas Tort

Claims Act.   The other grounds asserted by the defendants for

upholding the decision of the magistrate judge will not serve

because they require a showing of objective reasonableness, which

is a disputed factual issue.    The judgment is therefore reversed

and the case remanded for further proceedings.

     Randall also contends that the magistrate judge abused her

discretion in denying him leave to amend his complaint.

Randall’s amendment was requested after the summary judgment was

granted and sought to bring the defendants back into the suit.

District courts may deny leave when a substantial reason exists

for the denial.   Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir.

1985).   This court has held that parties should not be permitted

to present claims and defenses after adverse rulings.     Southern

Constructors Group, Inc. v. Dynalectric Co., 2 F.3d 606, 612 (5th

Cir. 1993).   Because the defendants had already been dismissed

from the suit, the denial of leave to amend was not an abuse of

discretion by the magistrate judge.    However, because the summary

judgment has been reversed, Randall is free to seek leave to

amend on remand because the “substantial reason” for refusing

amendment no longer exists.

     VACATED AND REMANDED.


46 So.3d 568 (2010)
BANES
v.
McNEIL.
No. 1D10-2225.
District Court of Appeal of Florida, First District.
October 6, 2010.

DECISION WITHOUT PUBLISHED OPINION
Certiorari denied.


663 F.Supp.2d 5 (2009)
Michael BEATTIE, Plaintiff,
v.
Jo Anne BARNHART, et al., Defendants.
Civil Action No. 01-2493 (RWR).
United States District Court, District of Columbia.
October 20, 2009.
*7 Michael J. Beattie, Vienna, VA, pro se.

MEMORANDUM OPINION AND ORDER
RICHARD W. ROBERTS, District Judge.
Pro se plaintiff Michael Beattie brought this action against the Commissioner of Social Security and five unnamed Social Security Administration employees alleging, in part, a wrongful failure to produce documents related to an inadvertent overpayment to Beattie, and wrongful termination of Beattie's social security benefits. Beattie seeks a temporary restraining order ("TRO") to preserve the documents and provide benefits. Because Beattie has failed to demonstrate that he is likely to suffer irreparable harm without a TRO and no other factors tip the balance in favor of granting a TRO, his motion will be denied.

BACKGROUND
The plaintiff's amended complaint seeks, among other things, documents related to a claim for underlying social security benefits that were terminated over eight years ago. (See Pl.'s Br. Supporting Mot. for *8 TRO ("Pl.'s Br.") at 1-2.)[1] Beattie asserts that he has requested from the defendants documents under the Freedom of Information Act ("FOIA") and the Privacy Act which the defendants have failed to search for and provide to him. (Id.) Beattie claims that he will be unable to pursue his benefits claim and will suffer stress if the defendants fail to preserve his records. (Id. at 2-3.) He seeks a TRO that requires the defendants to conduct an accounting and listing of the documents, and that enjoins the defendants from destroying documents sought and from continuing to withhold his social security benefits. (Pl.'s Mot. for TRO.)

DISCUSSION
The purpose of preliminary equitable relief usually is "`to preserve the status quo pending the outcome of litigation.'" Cobell v. Kempthorne, 455 F.3d 301, 314 (D.C.Cir.2006) (quoting Dist. 50, United Mine Workers of Am. v. Int'l Union, United Mine Workers of Am., 412 F.2d 165, 168 (D.C.Cir.1969)). The factors that apply in evaluating requests for a temporary restraining order are identical to those that apply in evaluating requests for preliminary injunctions. See Al-Fayed v. C.I.A., 254 F.3d 300, 303 n. 2 (D.C.Cir. 2001). To obtain preliminary injunctive relief, the moving party must show that "he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., ___ U.S. ___, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008). A court evaluates these factors on a sliding scale. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C.Cir.2009). A trial court has the discretion to grant or deny a request for a preliminary injunction, Ambach v. Bell, 686 F.2d 974, 979 (D.C.Cir. 1982), but such requests are not granted lightly. See Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). Injunctive relief "should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Id. (emphasis in original) (quoting 11A C. Wright, A. Miller, & M. Kane, Fed. Practice and Procedure § 2948, at 129-30 (2d ed.1995)).

I. IRREPARABLE HARM
Ordinarily, a threshold requirement in granting temporary injunctive relief is that the moving party make some showing of irreparable harm. See CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995). Despite the flexibility in weighing the four factors in relation to each other, courts normally "require the moving party to demonstrate at least `some injury.'" Id. (quoting Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C.Cir.1986)); see Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (stating that "`[t]he basis for injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies'") (alteration in original) (citation omitted). If a party fails to make a sufficient showing of irreparable injury, a court may deny a motion for injunctive relief. CityFed Fin. Corp., 58 F.3d at 747 (stating that because the moving party made no showing of irreparable injury, the district court did not abuse its discretion in denying the request for preliminary relief).
*9 An irreparable harm is an imminent injury that is both great and certain to occur, and for which legal remedies are inadequate. Wis. Gas Co. v. F.E.R.C., 758 F.2d 669, 674 (D.C.Cir.1985) (citing Sampson, 415 U.S. at 88, 94 S.Ct. 937). "Bare allegations of what is likely to occur are of no value since the court must decide whether the harm will in fact occur." Id. (emphasis in original). Thus, to satisfy this prong, the movant must prove either "that the harm has occurred in the past and is likely to occur again" or that the harm is "certain to occur in the near future." Id. "`Injunctions . . . will not issue to prevent injuries neither extant nor presently threatened, but only merely "feared."'" Comm. in Solidarity With People of El Sal. (CISPES) v. Sessions, 929 F.2d 742, 745-46 (D.C.Cir.1991) (alteration in original) (citation omitted).
Beattie complains that he will suffer stress unless the defendants are enjoined from destroying his records. He cites to no authority that such stress is a harm appropriate to remedy by injunctive relief. He also wants the defendants to conduct an accounting of documents sought in his purported FOIA and Privacy Act requests and to produce a list of these documents, but he has not demonstrated how an accounting or a list of documents will prevent him from suffering imminent, irreparable harm. In addition, he seeks to enjoin the defendants from destroying any documents within the subject matter of his requests. Beattie, however, has not demonstrated that the defendants previously have destroyed any documents related to his pending benefits claim. Rather, he states that the relevant documents are "in the possession of both the local social security office and the regional social security office." (Pl.'s Br. at 2.) Similarly, Beattie has not proven that the defendants have threatened to destroy documents in the near future. He merely alleges that "[t]here is a distinct possibility that the agency will destroy documents that are the subject of [his] request." (Pl.'s Br. Supporting Mot. to Expedite at 2.) These feared possibilities fall short of the imminent threat of injury required to grant a TRO.
Beattie's request to enjoin the defendants from continuing to withhold his social security benefits is equally deficient. He has failed to demonstrate that he will suffer an imminent injury that legal remedies cannot redress if a temporary restraining order is not granted. A TRO, ordinarily issued to preserve the status quo, is an inappropriate tool for restoring Beattie's social security benefits which were terminated by agency decision over eight years ago.

II. OTHER FACTORS
A party seeking a TRO also must demonstrate that he is likely to succeed on the merits, that the balance of the equities tips in his favor and that the public interest favors granting of the TRO. See Winter, 129 S.Ct. at 374. Assessing the likelihood of success on the merits "does not involve a final determination of the merits, but rather the exercise of sound judicial discretion on the need for interim relief." Nat'l Org. for Women, Wash. D.C. Chapter v. Soc. Sec. Admin. of the Dep't of Health and Human Servs. et al., 736 F.2d 727, 733 (D.C.Cir.1984) (footnote and internal quotation marks omitted). Here, Beattie's scant brief supporting his motion for a temporary restraining order asserts that he has "obviously proven a possibility of success," but provides no support for his assertion. (Pl.'s Br. at 3.) Beattie largely fails to address the substance of his underlying claims, and merely makes conclusory or unsubstantiated allegations that the defendants' failure to *10 provide him with the requested documents violated FOIA and the Privacy Act, and the defendants have denied him due process by failing to allow him to call witnesses, submit evidence, be represented by an attorney, or testify. (Id. at 2-3.) Furthermore, Beattie's blanket statement that he qualifies for social security benefits is not sufficient to demonstrate a likelihood of success on the merits.
Beattie also alleges that the balance of the equities tilts sharply in his favor because he is destitute and the defendant is infinitely wealthy. He claims that he has no income and little resources and the defendant should pay him $600 per month until the case is resolved. (Id. at 3.) Beattie, however, has failed to show that any money is owed to him or that his penury should weigh against an agency that he has not demonstrated either has destroyed any documents or is even obligated to provide the requested documents. Moreover, Beattie makes no showing that there is a strong public interest that favors reinstating by TRO social security benefits that were terminated by agency decision, or ordering an agency not to destroy documents it has not even threatened to destroy.

CONCLUSION
Beattie has failed to show that he will suffer irreparable injury if his motion for a temporary restraining order is not granted. Nor has he shown that other considerations warrant issuing the relief he seeks. Accordingly, it is hereby
ORDERED that Beattie's motion for a temporary restraining order and expedited decision [70] be, and hereby is, DENIED.
NOTES
[1]  Beattie's filing was not paginated. Pagination, therefore, has been supplied by the Court.


376 F.3d 75
Errol A. FOSTER, Petitioner,v.UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 01-4013.
United States Court of Appeals, Second Circuit.
Argued: June 17, 2004.
Decided: July 16, 2004.

Mary Ann J. Sung (Lewis J. Liman, Hina Shamsi, Anil Kalhan, Mina Park, on the brief), Cleary, Gottlieb, Steen & Hamilton, New York, NY, for Petitioner.
Michael R. Holden, Assistant United States Attorney (David N. Kelley, United States Attorney, Sara L. Shudofsky, Assistant United States Attorney, on the brief), United States Attorney's Office for the Southern District of New York, New York, NY, for Respondent.
Before: B.D. PARKER, WESLEY Circuit Judges, IRENAS, District Judge.*
PER CURIAM.

1
Errol A. Foster petitions for review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge's (IJ) determination that Foster should be removed from this country as a consequence of a prior felony conviction. Foster contends that his state conviction for first degree manslaughter was improperly classified as an "aggravated felony" under the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq. He also contends that, even if he had been convicted of an aggravated felony, he is entitled to apply for discretionary relief under INA § 212(c), 8 U.S.C. § 1182(c), repealed by Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-597 (Sept. 30, 1996). We conclude that Foster failed to exhaust his administrative remedies with respect to his claim that his crime was not an aggravated felony. Further, we lack subject matter jurisdiction to decide whether Foster is entitled to apply for § 212(c) relief. Accordingly, we deny the petition.

I. BACKGROUND

2
Foster is a native and citizen of Jamaica who entered the United States in 1981 as a lawful permanent resident. In June 1990, he was arrested and indicted in Supreme Court, New York County on three counts: murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. In October 1990, he pleaded guilty to manslaughter in the first degree and was sentenced to a term of 6 to 18 years' imprisonment.

3
Ten years later, in May 2000, while he was still incarcerated, the Immigration and Naturalization Service (INS), served Foster with notice to appear for a removal hearing. The notice alleged that his conviction for manslaughter constituted a "crime of violence" under 18 U.S.C. § 16 and that, therefore, he was removable as a consequence of his commission of an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii); see 8 U.S.C. § 1101(a)(43)(F) (defining "aggravated felony" to include a "crime of violence" under 18 U.S.C. § 16). Petitioner, acting pro se, filed a number of motions to terminate the proceedings, arguing that he had never admitted responsibility for the crime, that he was entitled to § 212(c) relief or any other available relief, and that he desired to preserve all of his rights.

4
Following a hearing during which Foster admitted that he had pled guilty to first degree manslaughter, the IJ concluded that Foster was subject to removal based on his 1990 conviction, and that he was not eligible for discretionary relief under § 212(c) because he had served more than five years in prison. See Immigration Act of 1990, Pub.L. No. 101-649, § 511, 104 Stat. 4978, 5052 (Nov. 29, 1990) (amending § 212(c) to bar relief for aggravated felons who have served more than five years in prison).

5
Foster then appealed, again pro se, to the Board of Immigration Appeals arguing that he was entitled to § 212(c) relief. Before the BIA's decision issued, Foster filed a pro se petition for review of that decision in this Court along with a motion to proceed in forma pauperis and to stay any deportation proceedings pending disposition of his petition for review. Before we decided the petition, the BIA denied Foster relief, finding him eligible for removal. Despite his premature petition to us, we exercised jurisdiction noting that "the BIA has since affirmed petitioner's removal order and the respondent has not shown prejudice." We also granted Foster's motion to stay his deportation, allowed him to proceed in forma pauperis, and appointed him pro bono counsel.

II. DISCUSSION

6
Foster raises two claims on appeal: (1) that his conviction was not an "aggravated felony" under the INA, 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."); and (2) that, even if his conviction could be considered an aggravated felony, he is entitled to apply for discretionary relief from removal under § 212(c). In addition to opposing these claims on the merits, the government contends that we lack jurisdiction because they had not been raised before the IJ or the BIA.

I. Exhaustion

7
Before an alien can seek judicial review of his removal decision, the INA requires that he exhaust all administrative remedies available to him. 8 U.S.C. § 1252(d) ("A court may review a final order of removal only if ... (1) the alien has exhausted all administrative remedies available to the alien as of right...."). Statutory exhaustion requirements such as § 1252(d)(1) are "mandatory, and courts are not free to dispense with them." United States v. Gonzalez-Roque, 301 F.3d 39, 47 (2d Cir.2002) (quotation marks omitted). Therefore, a failure to exhaust them "constitutes a clear jurisdictional bar." Mejia-Ruiz v. INS, 51 F.3d 358, 362 (2d Cir.1995) (quotation marks omitted) (interpreting § 1252(d)(1)'s predecessor); see also Theodoropoulos v. INS, 358 F.3d 162, 173-74 (2d Cir.2004) (concluding that the federal courts had no jurisdiction to hear the petitioner's claim when he had failed to exhaust it before the BIA).

8
Foster contends that he exhausted his administrative remedies through his repeated contentions to the IJ and to the BIA that he was not subject to removal and that these generalized contentions were sufficient to preserve his claim that first degree manslaughter is not an aggravated felony. In response, the INS contends that, during administrative proceedings, Foster failed specifically to contend that his first degree manslaughter conviction did not qualify as a crime of violence and an aggravated felony. The INS also contends that he conceded the point during administrative proceedings when he stated in a pro se motion that he had indeed "been convicted of a crime of violence under 18 U.S.C. § 16, and therefore, an aggravated felony." Even generously construing Foster's pro se submissions, we cannot conclude that he raised before the IJ his claim that his conviction was not for an aggravated felony. First, his generalized protestations that his removal was improper did not suffice to alert adequately the IJ to the discrete issue he presses in this Court. Since removal may be improper for any number of reasons, the mere statement that one is not removable does not serve to raise a specific issue to the IJ. To preserve a claim, we require "[p]etitioner to raise issues to the BIA in order to preserve them for judicial review." Cervantes-Ascencio v. INS, 326 F.3d 83, 87 (2d Cir.2003) (emphasis added). Accepting the blanket statement that removal is improper as sufficient to exhaust all claims would eviscerate that rule since any alien could claim (as nearly all do) he was not removable and then apply for judicial review on the theory he had exhausted his remedies. Significantly, Foster's generalized claims were made to the IJ and not the BIA. Before the BIA, Forster did not contend that he was ineligible for deportation; he argued only for § 212(c) relief and that his removal proceedings should have been commenced earlier — within a reasonable time after his conviction.

9
Finally, Foster's contention that preclusion of this claim would raise "serious constitutional concerns" and that jurisdiction therefore exists is misplaced. All the cases cited by Foster for this proposition involve potential denials of all judicial review. They do not deal with exhaustion in situations similar to ours where judicial review is unquestionably available but relief is not since an issue was not preserved. See, e.g., INS v. St. Cyr, 533 U.S. 289, 300-05, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); Calcano-Martinez v. INS, 232 F.3d 328, 340-43 (2d Cir.2000), aff'd, 533 U.S. 348, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001); Henderson v. INS, 157 F.3d 106, 119 n. 9 (2d Cir.1998). We have been nothing if not clear in requiring that "a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself." E.g., Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir.2003) (quotation marks omitted). In fact, in Theodoropoulos we noted the distinction between the exhaustion requirement and deprivation of all judicial review, stating that

10
[u]nlike the specific provisions at issue in St. Cyr... which sought to foreclose judicial review of certain INS decisions, at least one of the purposes served by the exhaustion requirement contained in § 1252(d) is to ensure that the INS, as the agency responsible for construing and applying the immigration laws and implementing regulations, has had a full opportunity to consider a petitioner's claims before they are submitted for review by a federal court.

11
358 F.3d at 171. Consequently, Foster's claim in this Court that his manslaughter conviction should not qualify as an "aggravated felony" is precluded by his failure to exhaust the claim below.

2. Section 212(c) Relief

12
Prior to its repeal in 1996, INA § 212(c), as interpreted by this Court, permitted any legal permanent resident in deportation proceedings to seek a discretionary waiver from the Attorney General. Francis v. INS, 532 F.2d 268 (2d Cir.1976). The Immigration Act of 1990 (IMMAct), enacted after Foster's conviction, eliminated the availability of § 212(c) relief for aliens who had been convicted of aggravated felonies and who had served more than five years in prison. IMMAct, Pub L. No. 101-649, § 511, 104 Stat. at 5052. In 1996, Congress first made § 212(c) relief harder to obtain for those who still qualified, see Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132 § 440(d), 110 Stat. 1212, 1277 (Apr. 24, 1996), and then repealed § 212(c) altogether. IIRIRA § 304(b), 110 Stat. at 3009-597. In St. Cyr, the Supreme Court concluded that the IIRIRA § 304(b)'s abrogation of § 212(c) relief had an impermissible retroactive effect when applied to aliens who, before the enactment of the statute, had pled guilty to crimes that rendered them removable and detrimentally relied on the availability of discretionary relief. 533 U.S. at 326, 121 S.Ct. 2271. Under St. Cyr., aliens who pled to aggravated felonies before the passage of IIRIRA § 304(b) are still allowed to seek discretionary relief under § 212(c).

13
Here, Foster claims that IMMAct § 511 should not prevent him from applying for § 212(c) relief because, even though he had admittedly spent more than five years in prison, he pled guilty before the passage of the amendment and, under the logic of St. Cyr., the application of § 511 to him would have an impermissibly retroactive effect. Regardless of the merits of this claim, we cannot decide it, because the "criminal alien review bar" strips us of jurisdiction to consider whether Foster should be allowed to petition for § 212(c) relief. The INA provides that "[n]otwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a)(2)(A)(iii)." 8 U.S.C. § 1252(a)(2)(C). Since Foster failed to exhaust his remedies on the claim that his conviction was not an aggravated felony, the decision of the IJ that he is removable on those grounds stands. Consequently, we have no jurisdiction to review the final order of removal to determine whether Foster may apply for § 212(c) relief. Calcano-Martinez, 533 U.S. at 350-51, 121 S.Ct. 2268. Foster is, of course, free to bring his claim for § 212(c) relief as a petition for habeas corpus under 28 U.S.C. § 2241. See id. (holding that 8 U.S.C. § 1252(a)(2)(C) bars review on direct appeal if a conviction is for an aggravated felony but that Congress did not intend to strip habeas jurisdiction under the same circumstances).

14
For these reasons, we deny the petition for review.

Notes:

*
 The Honorable Joseph E. Irenas, United States District Judge for the District of New Jersey, sitting by designation


                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                             No. 00-50200
                           Summary Calendar

DENNIS LIPTON,

                                           Petitioner-Appellant,

versus
F. WHITTEN PETERS, Acting Secretary of the U.S.. Air Force;
MARGIE L. HUMPHREY, Colonel, Commander, HQARPC,

                                           Respondents-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. SA-99-CV-235-EP
                       --------------------
                         November 30, 2000

Before GARWOOD, DAVIS and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Dennis Lipton appeals following the district court’s denial

of his 28 U.S.C. § 2241 habeas petition challenging the Air

Force’s denial of his discharge application based upon him being
a conscientious objector.    Lipton argues that, although the

Secretary of the Air Force concluded that the primary reason for

the application was Lipton’s disappointment over not obtaining a

residency in pathology as he had requested, the Secretary did not

determine whether Lipton’s application was also substantially

     *
        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.
                            No. 00-50200
                                 -2-

motivated by his opposition-to-participation-in-war beliefs.

Lipton also argues that, if the Secretary’s decision found that

Lipton’s conscientious-objection beliefs were not sincere, there

was no basis in fact supporting that finding.

     Our review of the Air Force’s denial of a conscientious-

objector discharge is extremely narrow.    DeWalt v. Commanding

Officer, Fort Benning, GA., 476 F.2d 440, 442 (5th Cir. 1973).

Such a denial must be sustained if this court can discern any

basis in fact for it.    Silverthorne v. Laird, 460 F.2d 1175, 1179

(5th Cir. 1972).

     Our review of the Secretary’s decision reveals that the

Secretary determined that Lipton’s professed objection-to-

participation-in-war beliefs were not sincere.    Lipton’s argument

that the Secretary failed to determine whether Lipton’s discharge

application was substantially motivated by qualified beliefs and

his attempt to apply the holding in Pitcher v. Laird, 421 F.2d

1272, 1278-80 (1978), to his case are without merit.    A review of

the record reveals that there is a basis in fact supporting the

Secretary’s determination that Lipton’s professed beliefs were

not sincere.    See Hopkins v. Schlesinger, 515 F.2d 1224, 1228

(5th Cir. 1975); Silverthorne v. Laird, 460 F.2d 1175, 1179 (5th

Cir. 1972).    The dismissal of Lipton’s § 2241 petition is

AFFIRMED.