PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

L. DAN WINSTEAD, JR., Individually
and as partner of the partnership of
L. Dan Winstead, Jr.; L. DAN
WINSTEAD, III; THOMAS D.
WINSTEAD, d/b/a Winstead Family
                                       No. 95-2875
Partnership,
Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CA-91-393)

Argued: March 5, 1997
Decided: April 1, 1997

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and
BLACK, Senior United States District Judge for the District of
Maryland, sitting by designation.

_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Michael and Senior Judge Black joined.

_________________________________________________________________

COUNSEL

ARGUED: Kurt Eric Lindquist, II, THE SANFORD LAW FIRM,
Raleigh, North Carolina, for Appellants. Alice Lizbeth Ronk, Tax
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Appellee. ON BRIEF: Deanna L. Davis, THE SAN-
FORD LAW FIRM, Raleigh, North Carolina; Erik P. Doerring,
MCNAIR LAW FIRM, Columbia, South Carolina, for Appellants.
Loretta C. Argrett, Assistant Attorney General, Gary R. Allen,
Bruce
R. Ellisen, Walter Clinton Holton, Jr., United States Attorney, Tax
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Appellee.
_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Daniel Winstead, Jr. appeals the district court's grant of summary
judgment in favor of the government in this refund action for taxes
paid under the Federal Insurance Contribution Act (FICA) and the
Federal Unemployment Tax Act (FUTA). Winstead contends the dis-
trict court incorrectly found that he was the employer of day
laborers
who worked for sharecroppers on his land. Under section 3401(d)(1)
of the Internal Revenue Code, however, an individual who controls
the payment of wages is considered the employer for FICA and
FUTA purposes. Because Winstead paid the day laborers from his
personal checking account, he must be considered the employer in
this case. Accordingly, we affirm the judgment of the district
court.

I.

From 1980 to 1982, tenant farmers grew tobacco on Daniel Win-
stead's land under sharecropping agreements with Winstead. Win-
stead operated this enterprise individually in 1980 and 1981. In
1982,
he operated with his sons as the Winstead Family Partnership.
Under the sharecropping agreements, Winstead provided the share-
croppers with homes, land to farm, and equipment. He also agreed to
split the costs of ordinary expenses such as fertilizer and
chemicals.
In return, the sharecroppers were responsible for working the land
and
were accountable for hired help. After the tobacco was sold,
Winstead
and the sharecroppers split the proceeds.

                                 2
The sharecroppers used migrant farm workers as day laborers to
assist with the farming. All but two of the sharecroppers, however,
were unable to pay for hired help until after the tobacco was sold
each
year. Winstead therefore paid the day laborers directly from his
checking account, and deducted this amount from the sharecroppers'
share of the profits.

The IRS assessed FICA and FUTA taxes against Winstead and the
Winstead Family Partnership for the wages paid to the day laborers
from 1980 to 1982. Winstead brought this action for a refund of the
partial payment of FICA and FUTA taxes, asserting that neither he
nor the partnership was the employer of the day laborers during the
relevant period. The United States filed a counterclaim, seeking
the
balance of the unpaid taxes.

The district court found that Winstead and the partnership had con-
trolled the payment of wages to the day laborers, that they were
there-
fore employers under 26 U.S.C. § 3401(d)(1), and that they were
liable for outstanding FICA taxes in the amount of $13,817.84 and
FUTA taxes in the amount of $4,204.02.

Winstead then filed the instant appeal.

II.
The Internal Revenue Code provides that an employer bears
responsibility for withholding FICA and FUTA taxes. 26 U.S.C.
§§ 3101-02, 3111 & 3301. Winstead has conceded that the day labor-
ers were employees covered under FICA and FUTA. Thus the only
question raised by this appeal is the identity of the employer of
the
day laborers -- Winstead and the partnership, or the sharecroppers?

The term "employer" is defined in section 3401(d) of the Internal
Revenue Code as follows:

      (d)Employer. -- For purposes of this chapter, the term
      "employer" means the person for whom an individual per-
      forms or performed any service, of whatever nature, as the
      employee of such person except that --

                                 3
     (1)if the person for whom the individual performs
     or performed the services does not have control of
     the payment of the wages for such services the
     term "employer" . . . means the person having con-
     trol of the payment of such wages.

26 U.S.C. § 3401(d)(1). While this definition is for income tax
pur-
poses, the Supreme Court has held that it is equally applicable to
FICA. Otte v. United States, 419 U.S. 43, 51 (1974). In addition,
since
Otte, courts have uniformly applied the definition of section
3401(d)(1) to FUTA. See, e.g., Lane Processing Trust v. United
States, 25 F.3d 662, 666 (8th Cir. 1994); In re Southwest
Restaurant
Systems, Inc., 607 F.2d 1237, 1238-39 (9th Cir. 1979); In re Arma-
dillo Corp., 561 F.2d 1382, 1386 (10th Cir. 1977).

A.

The government notes that Winstead paid the day laborers directly
from his checking account and must therefore be considered the
employer under section 3401(d)(1). The plain language of that
statute
suggests that the government's position is correct. The statute
pro-
vides that the employer is normally "the person for whom an
individ-
ual performs or performed any service" with one significant
exception. In those circumstances where the person receiving
services
does not control the payment of wages, the individual controlling
the
actual payment of wages is deemed to be the employer. Since Win-
stead paid the day laborers directly from his checking account and
the
sharecroppers had no authority over this account, he would appear
to
fit squarely within the 3401(d)(1) exception.

Winstead contests this conclusion, maintaining that section
3401(d)(1) requires more than just paying salaries, but rather
requires
control over the hiring, firing, supervision, and the amount to be
paid
employees. This argument, however, misses the point of the statute.
The factors to which Winstead points are indicia of a common law
employment relationship. Section 3401(d)(1), however, by design
does not look to those factors but rather focuses on who has
control
over the payment of wages. As the Supreme Court noted in Otte, the
3401(d)(1) provision was included to simplify the collection of
taxes
4
by placing "responsibility for withholding at       the   point   of
control." 419
U.S. at 50. As the Ninth Circuit has explained:

     No one other than the person who has control of the pay-
     ment of the wages is in a position to make the proper
     accounting and payment to the United States. It matters little
     who hired the wage earner or what his duties were or how
     responsible he may have been to his common law employer.
     Neither is it important who fixed the rate of compensation.
     When it finally comes to the point of deducting from the
     wages earned that part which belongs to the United States
     and matching it with the employer's share of FICA taxes,
     the only person who can do that is the person who is in
     "control of the payment of such wages."

Southwest Restaurant Systems, 607 F.2d at 1240; see also Education
Fund of Electrical Industry v. United States, 426 F.2d 1053, 1057
(2d
Cir. 1970). It is undisputed that Winstead paid the day laborers
directly from his checking account. Under section 3401(d)(1), Win-
stead and the Winstead Family Partnership must therefore be consid-
ered employers for FICA and FUTA purposes.
B.

Winstead's remaining arguments have little merit. First, Winstead
argues that the holding in Otte -- that section 3401(d) is
applicable
for FICA purposes -- is limited to those situations where the
putative
employer is also liable for income tax purposes. Because cash remu-
neration for agricultural labor was excluded from the definition of
"wages" for income tax withholding during the relevant time period,
26 U.S.C. § 3401(a)(2) (1982), amended by , Omnibus Budget
Reconciliation Act of 1989, Pub. L. No. 101-239,§ 7631(a), 103
Stat.
2106, 2378, Winstead argues he should also have been exempted
from withholding and paying FICA and FUTA taxes. Cash remunera-
tion for agricultural labor, however, is and was included within
the
definition of "wages" for FICA and FUTA purposes, see 26 U.S.C.
§§ 3121(a)(8) & 3306(b)(11), and Otte did nothing to change this
def-
inition. That decision simply held that section 3401(d)(1)'s
definition
of employer was applicable to FICA. Winstead's argument must
therefore fail.

                                 5
Winstead also maintains that the definition of "employer" articu-
lated by the Court in Otte is limited to trustees in bankruptcy. He
con-
tends that the liability in Otte arose solely because the trustee
was
acting in a capacity similar to an agent or trustee and had assumed
a
"surrogate relationship" with the bankrupt former employer. The
Supreme Court, however, did not rely on any agency, trustee, or
"sur-
rogate" theory. Instead, it relied on the plain language of section
3401(d)(1). Otte, 419 U.S. at 50. Moreover, the courts have repeat-
edly applied the section 3401(d)(1) definition of employer for FICA
purposes in cases in which the "control of the payment of wages"
did
not arise by reason of bankruptcy. See Kittlaus v. United States,
41
F.3d 327, 329-31 (7th Cir. 1994); Lane Processing Trust, 25 F.3d at
666; Southwest Restaurant Systems , 607 F.2d 1237-38.

Lastly, Winstead claims that he was relieved from FICA taxes by
section 3121(b)(16) which exempts from the definition of employ-
ment

     service performed by an individual under an arrangement
     with the owner or tenant of land pursuant to which--

     (A)such individual undertakes to produce agricul-
     tural or horticultural commodities . . . on such
     land,

     (B)the agricultural or horticultural commodities
     produced by such individual, or the proceeds
     therefrom, are to be divided between such individ-
     ual and such owner or tenant, and

     (C)the amount of such individual's share depends
     on the amount of the agricultural or horticultural
     commodities produced.

26 U.S.C. § 3121(b)(16). Winstead concedes that the day laborers at
issue do not fall within this exemption, but argues that the
sharecrop-
pers do. If a sharecropper is not an employee, he claims, it stands
to
reason that the employees of the sharecropper should also be
exempt.

                                 6
We disagree. The plain language of the section 3121(b)(16) exemp-
tion indicates that it applies only to those workers who share the
prof-
its and risks of cultivating a commodity and thus are considered
self-
employed. The day laborers at issue in this case were manifestly
not
self-employed, and should not be deprived of FICA coverage. Neither
the exemption nor its rationale has any application here.
III.

Winstead further argues that he should not be liable for FUTA
taxes because he did not pay sufficient wages to the day laborers
to
come within the terms of FUTA. Section 3306(a)(2) of the Internal
Revenue Code identifies employers of agricultural labor subject to
FUTA taxes as follows:

       Agricultural labor. -- In the case of agricultural labor, the
       term "employer" means, with respect to any calendar year,
       any person who --

       (A)During any calendar quarter in the calendar
       year or the preceding calendar year paid wages of
       $20,000 or more for agricultural labor.
26 U.S.C. § 3306(a)(2).

Winstead contends that he "did not pay $20,000 or more of wages
during any calendar quarter for 1980 and 1981," and that the
district
court made no factual findings regarding the amount of wages paid
in those years. In a tax refund action, however, the IRS's
assessment
of taxes is presumed correct, and the taxpayer bears the burden of
proving otherwise. United States v. Janis, 428 U.S. 433, 440
(1976).
In this case, the IRS's assessment of FUTA taxes indicated that
Win-
stead met the prerequisite of section 3306(a)(2) for the years in
ques-
tion. Winstead has pointed to no evidence that the IRS's assessment
was incorrect, and his conclusory allegations are not sufficient to
create a factual dispute.

                                  7
IV.

For the foregoing reasons we affirm the judgment of the district
court.

AFFIRMED

                               8


 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT

                   Decided July 10, 2018

                        No. 14-1022

                    JAMES L. ROBERTS,
                       PETITIONER

                             V.

 NATIONAL TRANSPORTATION SAFETY BOARD AND FEDERAL
             AVIATION ADMINISTRATION,
                   RESPONDENTS

   On Motions to Supplement Equal Access to Justice Act
                       Application

    David B. Anderson and Deanna L. Weidner were on the
motions to supplement Equal Access to Justice Act application
and the reply for petitioner.

    Sonia M. Carson and Charles W. Scarborough, Attorneys,
U.S. Department of Justice, were on the opposition for the
respondents.

   Before: WILKINS, Circuit Judge, and SENTELLE and
RANDOLPH, Senior Circuit Judges.

    Opinion for the Court filed PER CURIAM.
                                  2

     PER CURIAM: Before us is the application of James L.
Roberts for attorney’s fees and expenses he incurred in 2014 and
2015 in connection with his successful petition for judicial
review in Roberts v. National Transportation Safety Board, 776
F.3d 918 (D.C. Cir. 2015).1 Roberts filed his application with
this court pursuant to 28 U.S.C. § 2412. Section 2412 requires
a party seeking fees and expenses to file an application “within
thirty days of final judgment in the action.” Id. § 2412(d)(1)(B).
Our decision in Roberts v. National Transportation Safety Board
became final on April 23, 2015. The limitations period in
§ 2412 runs from the time of final judgment in “the court before
which the civil action is pending,” not from the final decision of
an administrative agency. Melkonyan v. Sullivan, 501 U.S. 89,
94 (1991) (emphasis in original); see also id. at 94–95. Because
Roberts submitted his § 2412 application on May 4, 2018, more
than three years after this court’s final judgment, his application
was untimely. We therefore deny it.

                                                        So ordered.

     1
       The subject of Roberts’ petition for judicial review was the
National Transportation Safety Board’s denial of his request, which he
filed pursuant to 5 U.S.C. § 504, for legal fees and expenses incurred
in administrative proceedings. This court ruled in Roberts’ favor and
remanded the case to the Board. On April 4, 2018, the Board granted
Roberts’ application for fees and expenses.


985 F.2d 559
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Marie FIELDS, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 92-1334.
United States Court of Appeals, Sixth Circuit.
Jan. 29, 1993.

Before BOGGS and SUHRHEINRICH, Circuit Judges, and WELLFORD, Senior Circuit Judge.
PER CURIAM.

1
Marie Fields filed for disability benefits at age 47, claiming disability due to a back injury which occurred while she was working as a nurse's aid.   She contends that this back injury combined with her obesity establishes her disability.   The district court, based upon the magistrate judge's report and recommendation, determined the Secretary's decision was supported by substantial evidence.   We agree with the district court that there was substantial evidence to support the Secretary's decision and thus AFFIRM.

I. THE INJURY AND THE TREATMENT

2
Mrs. Fields worked as a nurse's aid and was injured while lifting a patient in February, 1989.   One month after this injury she developed a numbness in her lower back and leg.   Dr. Croissant, her treating physician, discovered mild L-5 radiculopathy on the right lower extremity.

3
Therapy did not adequately deal with her problem, and Dr. Croissant performed partial laminectomies and discetomies of L-3 and L-4.   At the time of her discharge from the hospital, he noted that her condition was improved but she was still complaining of pain.   As of May 31, 1989, Dr. Croissant reported "Marie is doing well post-operatively....  She is walking more outside and tolerating activity well."

4
The next doctor's report, dated October 30, revealed that Fields had another partial laminectomy of L-4 with the removal of some recurrent disc herniation.   Dr. Croissant noted "It was difficult to motivate her.   She spent her time in bed.   Although she looked comfortable, she did complain of some discomfort.   At the time of discharge she was much improved."

5
In January of 1990, Dr. Croissant reported:  "Mrs. Fields is doing excellently.   Her pain is much improved and her back is healed normally with a relatively normal scar.   She is now two months postop.   We are gradually increasing her activities and plan to see her in a month."   Dr. Croissant reported in February that she was going to continue dieting on her own and to continue her exercise program.   He hoped "to get her back into a normal life-style and working as soon as possible".

6
The claimant presented a letter dated June 30, 1990 by Dr. Sperl to the appeals council:

7
We have started her on an out patient physical therapy program.   Her symptomatology has definitely shown improvement.   The thing that seems to bother her the most, however, is this ongoing complaint of radiation into the right leg.   It was following her second surgery that she, in fact, began complaining of constant pain in the right leg.   Prior to the surgery, she was only complaining of intermittent discomfort.

8
* * *

9
... Many of her complaints and symptoms of radiation into the right leg appear to be related to scar tissue formation.   I would certainly see no indication for further surgery at this point given the fact, again, that the patient has undergone two prior surgeries....  Ms. Fields is making reasonable progress....  As she has shown slow but steady improvement, we will continue with treatment as long as we see improvement.

10
(emphasis supplied).

11
Dr. Asa Brown testified as the vocational expert before the Administrative Law Judge that because of her good extremity function and her capability of lifting up to 50 pounds on occasion and up to 25 pounds on a more frequent occasion that she could do unskilled medium work and unskilled light work.   In the past, Ms. Fields had worked as a nurse's aid, which did not require much lifting or bending, unlike her last nurse's aid job when the injury occurred.

12
Ms. Fields testified that she attends church twice a week, that she shops for personal items twice a month, that she visits with friends and reads, that she prepares meals with help from her daughter, that she helps her daughter with her homework, and that she dresses and feeds herself.

II. DECISIONS ON CLAIM
A. Administrative Law Judge

13
The Administrative Law Judge (ALJ) found that Ms. Fields was not engaged in substantial gainful activity (Step 1)1 and that she met the eligibility of insured status.   The ALJ then found that "[t]he medical evidence indicates that the claimant suffers from a history of two lumbar laminectomies and obesity.   These impairments do interfere with her ability to perform basic work activities.   Therefore, she suffers from a severe impairment."  (Step 2).

14
The ALJ then determined that she did not meet the obesity requirements as found in Table II, Section 10.10, Appendix 1, 20 C.F.R. Chapt.  III, Part 404, because after reviewing the various doctor reports he ruled she was five feet one inch tall and weighed 235 pounds.   Therefore, she was just short of meeting the obesity level2 and she did not satisfy any other Listing of Impairments with her back problems and her obesity combined.

15
The ALJ further found that she was capable of performing her past relevant work as a nurse's aid (Step 4).   According to the ALJ, she is capable of medium work.   Finally, the ALJ found her complaints of pain were not credible in light of Social Security Ruling 88-13 and in light of a report by her doctor that pain was associated with exertion only.   The Appeals Council refused to review the ALJ's decision, finding no basis for doing so.

16
B. The Magistrate Judge and the District Court

17
Upon appeal, the district court referred the claim to a magistrate judge who filed a thorough report and recommendation suggesting affirmance.   In reviewing the Secretary's decision, the magistrate judge focused on whether there was substantial evidence that the plaintiff could perform her past work which included both medium and light work.   After reviewing the record and particularly the doctors' reports in detail, this finding was made:  "While plaintiff does have a back impairment and may never be able to return to her past very heavy work, she has pointed to no evidence in the record which would clearly indicate that she cannot perform her past light work."   The district court, upon de novo review, adopted the report and recommendation in full.

III. STANDARD OF REVIEW

18
This court reviews the Secretary's final decision to determine if it is supported by substantial evidence.   Sherrill v. Secretary of HHS, 757 F.2d 803 (6th Cir.1985).   Substantial evidence suggests "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."   Id. at 804 (quoting  Richardson v. Perales, 402 U.S. 389 (1971)).

19
The ALJ found that Ms. Fields could perform her past relevant light or medium work.   The ALJ did not go beyond Step 4 of the applicable procedure, and thus the Secretary is not required, as the claimant argues, to reach the next step and to show that she was able to perform other work found in the national economy.   Since the ALJ did not base his decision on whether or not she met one of the Listed Impairments, it is not necessary to discuss Fields' obesity, and any effort to control her condition, in light of Table II.   The ALJ determined that she did not meet one of the Listed Impairments and thus, moving on to the next step, considered her age, education, and work experience.

IV. CONCLUSION

20
We find the ALJ's decision to be supported by substantial evidence.   Dr. Croissant reported he wanted to get her back to work and that she was making progress.   Not one of the medical reports recommended that Ms. Fields should not return to work or that she would not be able to do so in the future.

21
Moreover, her claims of disabling pain must be supported by objective medical evidence.   See Wyatt v. Secretary, HHS, 974 F.2d 680 (6th Cir.1992).   Social Security Ruling 88-13, a policy interpretation ruling, explains

22
There are situations in which an individual's alleged or reported symptoms, such as pain, suggest the possibility of a greater restriction of the individual's ability to function than can be demonstrated by objective medical evidence alone.   In such cases, reasonable conclusions as to any limitations on the individual's ability to do basic work activities can be derived from the consideration of other information in conjunction with medical evidence.

23
Medical evidence reveals she is able to move one leg up to 50 degrees when 90 degrees is normal.   Both Dr. Croissant and Dr. Sperl reported that her condition was improving and reduced the amount of her pain medication.   Both doctors admit that some pain may be caused by the scarring found near the point of surgery.   Although her activity level increased as time went on, her complaints of pain increased after the second surgery.   We find substantial evidence to support the finding that Fields' claims of pain are not substantiated by the medical evidence.

24
Finding the Secretary's decision was supported by substantial evidence, we AFFIRM the district court.

1
 The Social Security Administration has promulgated a five step procedure to evaluate a claimant's claims of disability.   See 20 C.F.R. § 404.1520

2
 In one medical report, it was recorded that Ms. Fields was five feet tall and in another report she was 240 pounds.   Either would have satisfied the requirements of Table II.   She then would have had to show one other problem as found in Section 10.10 A-E.   Section 10.10 A concerns any pain and limitation found in any weight bearing joint or spine.   This latter section may have applied to her


659 So.2d 183 (1994)
Willard Earl LEWIS
v.
STATE.
CR-93-0257.
Court of Criminal Appeals of Alabama.
August 19, 1994.
Rehearing Denied September 30, 1994.
Certiorari Denied March 3, 1995.
*184 Margaret Brown, Auburn, for appellant.
James H. Evans, Atty. Gen., and Margaret Childers, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 1940084.
MONTIEL, Judge.
The appellant, Willard Earl Lewis, was indicted for burglary in the second degree, a violation of § 13A-7-6, Code of Alabama 1975. A jury found Lewis guilty as charged in the indictment, and the trial court sentenced him to 20 years in prison. He appeals.

I
On appeal, Lewis first contends that the evidence presented by the State was insufficient to support a conviction of second degree burglary. Lewis was indicted on a charge of burglary in the second degree pursuant to § 13A-7-6(b), Code of Alabama 1975, which reads as follows: "[A] person commits the crime of burglary in the second degree if he unlawfully enters a lawfully *185 occupied dwelling-house with intent to commit a theft or a felony therein."
Briefly, the facts adduced at trial tended to show the following. Lewis's mother and elderly grandmother were the victims in this case. They testified that at the time of the offense they were living together in an apartment in Opelika. Lewis's grandmother, Claudie Calloway, testified that on May 2, 1993, her grandson cut a screen in a door to get into the apartment and once inside told her he "needed some damn money." She said she told him that she only had enough money to pay the rent, so he took the money$40from her pocket. Ms. Calloway testified that Lewis threatened to kill her and her daughter, Claudie Mae Daniels, who is Lewis's mother.
Mrs. Daniels testified that Lewis cut the screen door to get to the inner door. The testimony is unclear as to whether Lewis used the knife with which he had cut the screen to unlock the door or whether he used a key that was kept in the door to unlock it. According to both women, Lewis entered the house without permission, and told Ms. Calloway and Ms. Daniels to give him money because he needed to buy a lawn mower. Ms. Daniels testified that Lewis took $25 from her purse, which was lying on the bed, and then slapped her and twisted her arm, telling her he should break her arm.
This evidence alone was sufficient for the State to establish that Lewis entered a lawfully occupied dwelling with the intent to commit a crime, i.e., theft, while in the dwelling. Lewis's argument in his brief to this court questions the credibility of the victims, and pits their testimony against his. Therefore, rather than arguing the sufficiency of the evidence, Lewis really argues the weight of the evidence. See Zumbado v. State, 615 So.2d 1223, 1240-41 (Ala.Cr.App.1993).
The record shows that at the close of the State's case, Lewis moved for a judgment of acquittal or for a directed verdict; however, he did not state any grounds in support of his motion. "The issue of the weight of the evidence is preserved by a motion for a new trial, stating `that the verdict is contrary to law or the weight of the evidence.' See A.R.Crim.P. 24.1(c)(1)." Zumbado, supra. If no grounds are stated in a motion for a judgment of acquittal, then no issue is preserved for review. Id. Because Lewis failed to state any grounds supporting his motion for a judgment of acquittal, he failed to preserve this issue for this court's review, and this issue is therefore procedurally barred.

II
Lewis also argues that the trial court erred in denying his requested jury charges dealing with mental disease or defect and what he says is the lesser included offense of third degree burglary. The record shows that during the charging conference, the trial judge said that he was not going to give the defense's requested charge on mental disease or defect, and that he would not charge the jury on burglary in the third degree as a lesser included offense. Defense counsel objected as follows:
"Now, judge, we've got awe would take exception to the court's not charging on burglary in the third degree as a lesser included."
At the close of the trial court's oral charge to the jury, defense counsel said:
"Take exception to not being charged on defendant's jury charge request number one [mental disease or defect] and number four [burglary in the third degree as lesser included offense]."
"[I]n order for the issue of the court's failure to give a requested jury charge to be preserved, the appellant must give the reasons for his objection, as required by Rule 14 [A.R.Crim.P.]." Kinder v. State, 515 So.2d 55, 62 (Ala.Crim.App.1986). A general objection to the court's refusal of the charges is not sufficient. Id.
In this case, defense counsel stated no specific grounds for his objection to the trial court's refusal to give the two requested charges at issue here; therefore, this issue is not preserved for our review.

III
Lewis also argues that the State violated Batson v. Kentucky, 476 U.S. 79, 106 *186 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by using its peremptory strikes in a racially discriminatory manner. In his brief to this court, he maintains that the trial court erred in denying his Batson challenge in light of the State's use of its peremptory challenges to remove two-thirds of the black males on the venire.
The record shows that 3 black men were on the venire. The State struck 2 of the 3. Defense counsel made a Batson challenge, and the trial court asked the State to give its reasons for its strikes. The prosecutor said that one of the struck jurors had a prior shoplifting conviction, and he did not seem to understand questions posed by her during voir dire. The prosecutor said that her reason for striking the other juror was that he said that he would not be paid at work if he had to serve on jury duty and that he did not want to serve. The judge refused to excuse him, and the prosecutor believed that he was on the venire against his will. The trial court found that those were race-neutral reasons and denied Lewis's Batson challenge.
Both prior criminal activity and a veniremember's desire not to serve on the jury have been held to be race-neutral reasons for strikes. Stephens v. State, 580 So.2d 11, 19 (Ala.Crim.App.1990). "It is within the sound discretion of the trial court to determine if the State's peremptory challenges of black jurors are motivated by intentional racial discrimination." Mitchell v. State, 579 So.2d 45 (Ala.Crim.App.1991); Ex parte Jackson, 516 So.2d 768 (Ala.1986). Because the State's explanations for its strikes have been held to be race-neutral, we hold the trial court did not abuse its discretion in denying Lewis's Batson challenge.
The judgment of the trial court is affirmed.
AFFIRMED.
All the Judges concur.


397 N.E.2d 973 (1979)
Rodrick HICKS, Appellant,
v.
STATE of Indiana, Appellee.
No. 579S134.
Supreme Court of Indiana.
December 18, 1979.
Peter J. Caras, Jr., Gary, for appellant.
Theo. L. Sendak, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.
GIVAN, Chief Justice.
Appellant was convicted of dealing in drugs and was sentenced to 12 years in prison.
*974 The evidence most favorable to the State reveals that the chief prosecution witness was a confidential informant for the United States Drug Enforcement Administration (DEA). The informant had known appellant for about seven months at the time of the drug transaction. On September 28, 1977, appellant called the informant to see if the informant was ready to make a purchase. The informant told appellant he would first have to find the money. The informant contacted DEA agents. The informant, with the DEA monitoring, then made several calls to appellant to arrange the purchase. A meeting was set up for October 5, 1977, at a service station in Gary, Indiana. The informant was given $600.00 by DEA agents to make the purchase. At the service station the informant got into appellant's car, where appellant delivered a bag of heroin to the informant in return for the $600.00 payment. DEA agents searched the informant before and after the transaction. Other than the $600.00 before the meeting and the bag of heroin afterward, neither money nor contraband were found on the informant.
The informant's version of the transaction was supported by the testimony of DEA agents. Although the agents did not actually see the transaction, they testified that they observed appellant's vehicle pull into the station and the informant get into the backseat of appellant's car. There was also testimony that an agent saw appellant reach toward the informant in the backseat. The bag of heroin, which appellant sold to the informant, was introduced in evidence.
Appellant claims the evidence is insufficient as a matter of law to sustain his conviction. In particular, he contends the State produced no evidence that he intended to deliver the narcotics. We will not weigh evidence, but will look only to the evidence most favorable to the State. The conviction will be upheld if the record contains substantial evidence of probative value from which the jury could have inferred that appellant was guilty beyond a reasonable doubt. Shipp v. State (1976) 265 Ind. 108, 350 N.E.2d 619.
Appellant was convicted of dealing in a narcotic drug under IC § 35-48-4-1 [Burns 1979]. The statute provides that any person who "knowingly or intentionally manufactures or delivers a narcotic drug" will be guilty of a violation of the statute. "Intentionally" is defined as engaging in conduct with a "conscious objective to do so." IC § 35-41-2-2(a). "Knowingly" is defined as engaging in conduct with an awareness of a "high probability that he is doing so." IC § 35-41-2-2(b). Under the facts of this case, as recited above, the evidence is more than sufficient to sustain the verdict.
Appellant testified and now claims that he did not have the requisite intent to deliver the narcotics, since he intended to return the money to the informant. However, he fails to recognize the well-established rule that where an offense consists of a violation of a statute, the only intent necessary is the intent to commit the actions proscribed by the statute. Crider v. State (1972) 258 Ind. 541, 282 N.E.2d 819. Moreover, the jury may infer this intent from all the facts and surrounding circumstances in evidence. Spivey v. State (1971) 257 Ind. 257, 274 N.E.2d 227; Cooper v. State (1975) 165 Ind. App. 471, 332 N.E.2d 843. The record reveals substantial evidence of probative value on each element of this crime and in particular, on the element of appellant's conscious objective and intent to deliver the drugs. Appellant has merely pointed to a conflict in the evidence, the resolution of which is a function for the jury. Choctaw v. State (1979), Ind., 387 N.E.2d 1305.
Appellant next claims the trial court erred in denying his motion for mistrial. During cross examination of the informant by counsel for the co-defendant Spence, the informant was asked if he recalled giving a deposition earlier in the year. The informant replied by asking whether counsel was referring to another case. Counsel for appellant then approached the bench and moved for a mistrial, which motion was denied. When the court offered to admonish the jury to disregard any reference to another case, counsel for appellant declined.
*975 The trial court has broad discretion in ruling upon a motion for mistrial. The court's determination will be reviewed only for an abuse of judicial discretion or for clear error in the decision. Randolph v. State (1978) Ind., 378 N.E.2d 828. Here the mere reference to another case, without more, is insufficient to show substantial prejudice. Moreover, appellant had a duty to request the court to take action to remedy the alleged error. Rexroat v. State (1964) 245 Ind. 688, 201 N.E.2d 558. Since he refused the trial court's offer to admonish the jury, he may not now complain of error.
Appellant claims the trial court erred in permitting the informant to testify that he had previously sold heroin for appellant. The State offered the evidence to show that appellant was predisposed to commit this crime. The trial court, after argument at the bench, permitted the first question but sustained an objection to the next question, which went to the length of time the informant has worked for appellant. The trial court then admonished the jury that "any evidence of any prior dealings is not proof of what occurred on the fifth day of October, 1977." We hold the trial court properly permitted the first question to be asked and answered. The court's admonishment concerning the question and answer was correct. Furthermore, appellant himself later testified that he had known the informant for about seven months and had worked with him in a drug-selling scheme. Under these circumstances, we can discern no prejudicial error in the rulings of the trial court.
The judgment of the trial court is affirmed.
DeBRULER, HUNTER, PIVARNIK and PRENTICE, JJ., concur.


395 F.2d 557
SERV-AIR, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 9193.
United States Court of Appeals Tenth Circuit.
Jan. 19, 1968, Rehearing Denied April 9, 1968.

Frank Carter, Enid, Okl.  (Otjen, Carter & Huddleston, Enid, Okl., of counsel, were with him on the brief), for petitioner.
John E. Nevins, Atty., N.L.R.B.  (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Glen M. Bendixsen, Atty., N.L.R.B., were with him on the brief), for respondent.
Before WILBUR K. MILLER,* BREITENSTEIN and SETH, Circuit Judges.
BREITENSTEIN, Circuit Judge.

1
Serv-Air, Inc., (the Company) petitions for review of an order of the National Labor Relations Board1 and the Board requests enforcement of its order.  The Company is engaged in the operation and maintenance of all facilities and equipment used in the pilot training program at Vance Air Force Base and auxiliary fields near Enid, Oklahoma.  It has about 1,100 employees.  The International Association of Machinists (the Union) attempted to organize the employees.  As the result of an election held on May 6, 1964, Smoke-Eaters Lodge No. 898, an affiliate of the Union, was designated as the representative of about 85 employees in Fire and Rescue Department of the Company.  We are concerned with unfair labor practice charges which arose after that date and continued for a number of months.  The charges, and the facts pertaining thereto, are so interrelated that an orderly presentation is difficult.

2
1.  The No-solicitation Rule.

3
In November 1960, the Company posted a notice which stated among other things:

4
'No person will be allowed to carry on Union organizing activities on the job.  Anyone who does so and who thereby neglects his own work or interferes with the work of others will be subject to discharge.'

5
On September 2, 1964, employees McCarty and Haley were discharged for violation of this rule.  The fact that they engaged in conduct forbidden by the rule is not contested.  The question is the validity of the rule.  The Examiner upheld the rule and the Board reversed.

6
A no-solicitation rule which only regulates employee activity during working hours is valid unless adopted or used for a discriminatory purpose.2  The Examiner found, we believe correctly, that there was no evidence of discriminatory promulgation.  The Board said that 'no one disputes that the notice was initially promolgated in response to union activity.'  Standing alone, the fact that an organizational campaign may have begun before the rule was posted does not prove a discriminatory purpose.  The rule was in effect for at least three and one-half years before any complaint was made.  In effect, the Board infers from occurrences in 1964 that the Company had a bad motive in 1960.  We do not deem this to be a reasonable inference.

7
The Examiner found no discriminatory application of the rule.  He did so after denying a proffer of proof by the General Counsel that the rule had been applied discriminatorily.  The Board held that the offer should have been received and we agree.  The Board went on to hold that discriminatory enforcement was shown by the facts that the Company had condoned solicitations to pay for flowers sent to widows of deceased employees and had on one occasion discussed with a group of employees the handling of Community Chest and Red Cross contributions through payroll deductions.  In our opinion these beneficient acts fall far short of establishing forbidden discrimination.

8
The holding of the Board that the no-solicitation rule was discriminatorily promulgated and enforced in violation of 8(a)(1) is reversed and the case remanded for such further proceedings as are appropriate on the issue of the allegedly discriminatory promulgation and enforcement of the rule.  This requires that the Board decision that McCarty and Haley were discharged in violation of 8(a)(1) and (3) be also set aside.  If the rule was enforceable, the discharges were proper.  Determination of the question of discriminatory discharge must await the reconsideration of the validity of the rule.

9
2.  The 'Serious Harm' Notice.

10
The printed notice which contained the no-solicitation rule included the following statement:

11
'Since the Union has been putting on a campaign to get in here, some of you have been asking questions in regard to the following matters.  We have decided to state the Company's position on theses subjects as clearly as we can for everybody alike:--

12
(1) This matter is, of course, one of concern to the Company.  It is, however, also a matter of serious concern to you and our sincere belief is that if this Union were to come into this Plant, it would not work to your benefit but to your serious harm.'

13
Three circuits have held that this type of notice is non-coercive and is protected by the 'free speech' provision of 8(c).3  The Board urges that the rule announced should not be applied in the context of threats and other unfair labor practices.  This distinction was suggested by the District of Columbia Circuit in Amalgamated Clothing Workers of America v. National Labor Relations Board, 124 U.S.App.D.C. 365, 365 F.2d 898, 910, and in our opinion is valid.  Our view is that the notice was proper and was protected by 8(c) when adopted in 1960 and that the conduct of the Company in 1964 deprived it of that status.  In the atmosphere existing in 1964, the notice could well be considered as a threat of reprisal.  The inference of the Board that the notice was then a threat violative of 8(a)(1) is reasonable and the order will be enforced in this regard.

14
3.  Refusal to Reinstate Base Shop Employees after Strike.

15
After the September 2, 1964, discharge of McCarty and Haley, some employees at the base shop walked out and were joined later by others.  The strikers authorized a Union representative to make an unconditional offer to return to work on September 8.  The Company did not permit them to return until September 9.

16
The question of whether we are concerned with an unfair labor practice strike or an economic strike is immaterial because no replacements were hired.  The Company was obligated to reinstate the strikers when they unconditionally applied for reinstatement.4  The question is whether the application for reinstatement was unconditional.5  The offer to return to work on September 8 concluded with this language:

17
'The union is respectfully demanding that the company cease and desist these unfair practices and to allow all concerned to return to their jobs without any more retaliatory measures being taken against them because of their concerted action.'

18
After the Company refused to allow the strikers to return on the 8th, they sent a second message which, among other things said:

19
'The group desires to work but they want their legal rights respected.'

20
On September 9, they were all back to work.

21
The Company says that the offer to return was conditional and that an acceptance would have been an admission by the Company that it had engaged in unfair labor practices.  We do not agree.  The offer was not conditioned upon any major concession such as a consent election or the execution of a contract and did not request any change in wages, hours, or working conditions.  Of some relevance is the fact that on September 8 the strikers appeared for work at the normal hour and place.6  The Company's reliance on American Ship Building Co. v. National Labor Relations Board, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855, is misplaced.  That case related to a lockout used as an employer weapon to strengthen its bargaining position after impasse in bargaining.  The lockout here occurred because the Company did not like the terms of the application for reinstatement.  An objective view convinces us that the application was unconditional and the lockout was impelled by a discriminatory motive.7  The holding of the Board that the lockout violated 8(a)(3) and (1) is affirmed.

22
4.  The Refusal to Reinstate the Firemen.

23
On September 14, 1964, 57 employees of the Fire and Rescue Department walked off their jobs, assertedly because the Company had refused to hear certain grievances.  On September 15 they notified the Company that they would return to work 'as long as the Company doesn't create new instances that would cause another disturbance.'  On September 17 they presented an application suitable to the Company and were back to work on the 18th.  The Company says that the September 15 notice was conditional and, hence, it was not bound to accept it.  Here again the offer to return was not made contingent upon the grant of any concessions or benefits.  For the reasons stated in regard to the base employees, we believe that the request for reinstatement was unconditional and the lockout on September 16 and 17 was discriminatory and a violation of the Act.  This portion of the Board's order is affirmed.

24
5.  Discharges for Multiple-Badge Wearing.

25
In connection with Union organizational activities Union adherents began to wear various insignia signifying allegiance to the Union.  These took various forms, such as pencils worn with a union clip showing, plastic badges, improvised badges pasted on plastic buttons, and signs attached to the back of a shirt or jacket.  The Company countered with badges indicating that no union was wanted and distributed them to both employees and officials.  Some employees then defaced and wore the Company badges.  On October 15, 1964, Company supervisors began asking employees not to wear multiple badges.  Between October 19 and 20, ten employees were clocked out for refusal to remove multiple insignia.  On October 20, the Company posted a notice directing that only one badge be worn.  In the next three days, 26 employees were terminated for violation of the notice.  On October 27, the badge rule was suspended and everybody went back to work.  The whole episode shows an immature approach to labor relations by both the Company and the Union.

26
The right to wear union insignia on the employer's premises during working hours is guaranteed by 78 in the absence of special considerations.9  The Company says that special considerations justified its actions.

27
It first relies on the claim that the buttons were disruptive of harmony among the employees and, hence, under Caterpillar Tractor Co. v. National Labor Relations Board, 7 Cir., 230 F.2d 357, were excepted from the general rule.  The Board correctly rejected the argument.  The Company itself contributed to the disruption, if any, by distribution of its 'no union wanted' buttons.  The only showing of disharmony is the testimony of a supervisor without any enlargment as to the time, place, or circumstances of the disharmony.  The Company's reference to the carrying by employees of rolled-up newspapers on which the word 'scab' appeared is irrelevant because the multiple-badge rule in issue does not purport to cover such activities.  The Caterpillar case, Id., 230 F.2d at 359, says that an employer may not restrict 'passive inoffensive advertisement of organizational aims.'  The buttons with which we are concerned fall within this category.

28
The Company urges that the prohibition of multiple badges was proper to lessen the danger of foreign objects falling into jet engines.  Fabri-Tek, Inc. v. National Labor Relations Board, 8 Cir., 352 F.2d 577, 586, holds that danger to plant processes can be a valid reason for restrictions on wearing of union buttons.  The facts here do not justify the application of that principle.  The Company permitted loose objects to be carried in the front pockets of shirts.  It allowed multiple badges to be worn for about three months before taking any adverse action.  It distributed its own badges.  One employee discharged for violation of the rule pushed a lawn mower rather than repaired a jet engine.  The Company fails to convince us that it had real concern over the foreign-object danger.

29
The Company contends that the rule was necessary in order that the employees present a responsible appearance to the Air Force instead of 'looking like a bunch of clowns' because of all the badges.  The argument that employees have no right to wear union insignia that are offensive to customers10 does not apply here.  The record shows that the Company acted because of pique and not because of customer relations.  It failed to take action against multiple badges for several months and contributed to the carnival atmosphere by the distribution of its own badges.

30
The claim that the badge wearing was a violation of the no-solicitation rule does not impress us.  The courts have generally held that the wearing of union insignia is a form of expression protected by 7 rather than a form of solicitation.11  To the extent that Fabri-Tek, Inc. v. National Labor Relations Board, 8 Cir., 352 F.2d 577, 586, holds that badge wearing may be forbidden under a valid no-solicitation rule, we believe that it runs contrary to the Republic Aviation decision.

31
We agree with the Board that the multiple-badge rule violated 8(a)(1) and that the discharges for violation of that rule discriminated against the affected employees in violation of 8(a)(3).

32
6.  The Election Petition.

33
Between October 1964, and January 1965, there was circulated among the employees a petition requesting that a representation election be conducted by the Board's regional director.  Among others engaged in this activity were Klepfer and Huston.  The Board finding that they were supervisors and that the Company was charged with responsibility for their acts accords with the principles which we stated in Furr's, Inc. v. National Labor Relations Board, 19 Cir., 381 F.2d 562, 565-566, cert. denied 389 U.S. 840, 88 S.Ct. 70, 19 L.Ed.2d 105, and is supported by the record.

34
The Company urges that the Union may not complain of an opportunity to participate in a free election to determine its status.  The Board counters with the claim that Company solicitation of signatures to procure a certification election interferes with the employees' 7 right to choose a union.  Neither party supports its arguments by reference to any court decision on this particular point.  Neither the rule that the Board will not conduct a representation election at a time when the employer is charged with an unfair labor practice which might affect the election outcome12 nor the rule that an employer may not seek signatures for a decertification petition13 is decisive under the facts presented.

35
Like many first-impression decisions, the choice here is difficult and requires consideration of general principles.  A union organizational campaign is not carried to fruition overnight.  It may continue for a prolonged period.  If an employer may induce employees to call an election, it may be able to force an election on a union in the beginning of the campaign and before the union has a real chance to bring its views before the employees.  Once an election is lost, the union may not seek another for one year14 and is barred from organizational picketing for a like period.15  The Act gives an employer no unrestricted right to secure an election.16  When these considerations are viewed against a background of animus against the Union and a variety of unfair labor practices, an approval of Company solicitation of signatures to an election petition would permit the Company to profit by its improper actions.17  We conclude that supervisory sponsorship of the election petition interfered with the employees' 7 rights and violated 8(a)(1).

36
7.  The Jet Engine Field Maintenance (JEFM) Layoffs.

37
In 1964, it became apparent that the jet engines maintained by the Company would need servicing only half as often as was the practice theretofore.  A new contract was negotiated between the Air Force and the Company.  In November, eight employees engaged in the JEFM program were terminated.  The Board does not dispute the fact that economic considerations caused the layoffs but says that those laid off were discriminatorily selected.

38
Before acting, Company supervisors made a comprehensive rating of affected employees on such bases as seniority, production, attitude towards supervision, and harmony with co-workers.  The factors of attitude and harmony are particularly sensitive when applied to leaders in an organizational campaign.  Union activity does not entitle an employee to special immunity.  At the same time such activity makes difficult the objective rating of any employee by an employer.  All eight men laid off were Union stewards and had been prominent in the activities previously mentioned.  An examination of the rating sheets shows that the scores were disregarded rather than applied.  On the record presented we must accept the Board's conclusion that the true reason for the selective layoffs was the elimination of active union leadership and violated 8(a)(3) and (1).

39
8.  The Chodrick Layoff.

40
A reduction in the number of firemen was made necessary by the closing of Perry Field, one of the auxiliary bases.  A rating system similar to that used for the JEFM workers was followed.  The employees in the Fire and Rescue Department were represented by an affiliate of the Union and all were Union members.  The layoff of Chodrick is said to be discriminatory because he was active in union affairs and had more seniority than some of those retained.  No showing is made that seniority had to be observed in the layoffs.  The claim of discrimination is not reasonable to us.  All the firemen were Union members and necessarily those laid off belonged to the Union.  Chodrick was reinstated when the first opening occurred.  We conclude that the layoff of Chodrick did not violate 8(a)(3) and (1) and that as to him the Board's order should not be enforced.

41
9.  Questioning of Employees and Disparagement of the Union.

42
The Examiner credited testimony of employees that Company supervisors questioned them on their attitude towards the Union, inquired as to the identity of Union organizers and threatened their discharge, and said that union recognition would 'jeopardize the jobs of' the plant employees.  These occurrences are sufficient under our decisions in Betts Baking Co. v. National Labor Relations Board, 10 Cir., 380 F.2d 199, 201-202, and National Labor Relations Board v. Midwestern Instruments, Inc., 10 Cir., 264 F.2d 829, 831, cert. denied 360 U.S. 932, 79 S.Ct. 1451, 3 L.Ed.2d 1545, to sustain the Board decision.  A review of the entire record convinces us that a violation of 8(a) (1) occurred.

43
10.  The Refusal to Bargain.

44
After the Smoke-Eaters Lodge had been certified to represent the employees in the Fire and Rescue Department, the Company unilaterally changed the terms and conditions of employment.  Although admitting the 8(a)(5) violation, the Company pleads that the order with reference thereto should not be enforced because it is now bargaining with the employees' representative.  A sufficient answer is that compliance with a Board order is no defense to a petition for the enforcement of that order.18

45
The petition for review is granted and enforcement is denied on the item relating to the discharge of Chodrick.  In regard to the no-solicitation rule, the petition is granted, enforcement is denied, and the case is remanded for such further proceedings as may be appropriate in the light of this opinion.  See Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364, 373, 59 S.Ct. 301, 83 L.Ed. 221.  In all other respects the petition for review is denied and enforcement is ordered.  A formal mandate shall issue in accordance with the views herein expressed.

46
The Company's motion attacking the costs of printing the additional material designated by the Board is denied.  The Company has failed to convince us that the material so designated is immaterial.  Further, after filing the motion the Company voluntarily deposited the estimated cost of printing the appendices.  The Act of July 18, 1966, 80 Stat. 308, permits the taxing of costs to the prevailing party in a civil action brought by or against the United States after the date of the Act.  The petition for review was filed December 12, 1966.  In the circumstances the costs are taxed 85% Against the Company and 15% Against the Board.

47
WILBUR K. MILLER, Circuit Judge, dissents.

*
 Of the District of Columbia Circuit, sitting by designation

1
 See 161 NLRB No. 17

2
 See Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 803-805, 65 S.Ct. 982, 89 L.Ed. 1372; National Labor Relations Board v. American Coach Company, 10 Cir., 379 F.2d 699, 701; and National Labor Relations Board v. Shawnee Industries, Inc., 10 Cir., 333 F.2d 221, 225

3
 See Wellington Mill Division, West Point Mfg. Co. v. National Labor Relations Board, 4 Cir., 330 F.2d 579, 583, cert. denied 379 U.S. 882, 85 S.Ct. 144, 13 L.Ed.2d 88; Surprenant Manufacturing Company v. National Labor Relations Board, 6 Cir., 341 F.2d 756, 758-759; and Amalgamated Clothing Workers of America v. National Labor Relations Board, 124 U.S.App.D.C. 365, 365 F.2d 898, 909-910

4
 National Labor Relations Board v. Fotochrome, Inc., 2 Cir., 343 F.2d 631, 633, cert. denied 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76

5
 See National Labor Relations Board v. MacKay Radio and Telegraph Co., 304 U.S. 333, 345, 58 S.Ct. 904, 82 L.Ed. 1381; National Labor Relations Board v. Fotochrome, Inc., supra note 4; National Labor Relations Board v. Brown & Root, Inc., 8 Cir., 203 F.2d 139, 147

6
 See Olin Industries, Inc. etc. v. National Labor Relations Board, 5 Cir., 191 F.2d 613, 617, cert. denied 343 U.S. 919, 72 S.Ct. 676, 96 L.Ed. 1332

7
 See National Labor Relations Board v. R. C. Can Company, 5 Cir., 328 F.2d 974, 982

8
 Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 801-803, 65 S.Ct. 982, 89 L.Ed. 1372

9
 See National Labor Relations Board v. Essex Wire Corp., 9 Cir., 245 F.2d 589, 593; National Labor Relations Board v. Floridan Hotel of Tampa, inc., 5 Cir., 318 F.2d 545, 548-549; and National Labor Relations Board v. Harrah's Club, 9 Cir., 337 F.2d 177, 180

10
 See National Labor Relations Board v. Harrah's Club, 9 Cir., 337 F.2d 177, and National Labor Relations Board v. Floridan Hotel of Tampa, Inc., 5 Cir., 318 F.2d 545, 549 (dissenting opinion of Judge Lewis)

11
 See Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 802 n. 7, 65 S.Ct. 982, 89 L.Ed. 1372; National Labor Relations Board v. Mayrath Co., 7 Cir., 319 F.2d 424, 426; National Labor Relations Board v. Power Equipment Co., 6 Cir., 313 F.2d 438, 442

12
 See Furr's, Inc. v. National Labor Relations Board, 10 Cir., 350 F.2d 84, 85

13
 See National Labor Relations Board v. W. R. Hall Distributor, 10 Cir., 341 F.2d 359, 362

14
 9(c)(3)

15
 8(b)(7)(B)

16
 See 9(c)(1)(B)

17
 Cf. Franks Bros. Co., v. National Labor Relations Board, 321 U.S. 702, 704-705, 64 S.Ct. 817, 88 L.Ed. 1020

18
 See National Labor Relations Board v. Mexia Textile Mills, Inc., 339 U.S. 563, 567, 70 S.Ct. 833, 94 L.Ed. 1067, and National Labor Relations Board v. Local 101, International Union of Operating Engineers, 10 Cir., 315 F.2d 328, 331


                     OFFICE   OF   THE   ATTORNEY      GENERAL     OF   TEXAS
                                             AlJSTtN

                                               c.
@b&D c. MANN
 -”   .UU-.

     Honorable        X. E. Griffin
     county     iLttornsp
     Young Co-Q
     Graharc, iexas

     Dear     sir:

              *e ere in reoeipt ot
    aieb   you request the opinion
    of whether a board of aonmon
    oontraote with three tea&a
    87erage dally attendanoe   18                                   You &ate  thnt the
    ~%ehool does not have any ne                                  e atate aid in.my
    nnnner.*

                                                                 ing such   oontraets    will
     not    create a &eSici
                                                             0, Betised      Civil   Statutea,

                                                          make croatract~ with
                                                         la or their dlatriot,          but

                                                    they may hare settled
            in such dietriot ainee the seholaafie   aenaue was taken,
            shall be entitled to receive all the benefits oi the aehool~
            or such dietriot.   Ia a diet-riot that levies a spedal
            sohool tax the truetees sh&l    hare the right to fnorease
            the aalariee of tea&em    and the scholaatle   age, an(l map
            also have the dohoole taught longer than six aotlths, if
            it is deemad advisable.*
Eon. '. i;:.
           Griffin, key 2, 1939, &ge            2

         IX ;in&etou   v. wmtin,.,jT.C.k. 1901) 65 :~.:..606, the
court had th:s statute before it?or consideration j.ze case in
which three teaci.urotea bee- hired bi:Lthe avera;e daily attendar,ce
was kss than G5 pupils. Tke contract of e&ploy:.entbad been
approved by the;county superictendent, but he refused to approve
certain salary vouchers issued tc tbe teaaher. In holding the
contract binding On the district, the court stated:
         "Construing together articles 3946, 3559, 3959a and
    3961,,R. i:.1895 (ocw contained 10 articles 2750 k 2749,
    R. C. S. 3.9251,we are of opinion that the trustees are
    therein empowered        to ascertain     the existenae       of the
   $aats rendering      the employment        ot assistants       neoessary;
    that the exeroise or this power is Judicial, not minister-
   ial, rests solely woith them, and Is a matter with whlah
   the teaahers hate nothing to do.               having exeralsed the
   power by appointing         the tsaoher, the disoretlon            thus
   .axaraiBeb   oannot    be disturbed      or inquired       into %a      pro-
   oe&lng     of thls'aort,      espeol~lly      5.n view of the raot that
   the oouaty.superintsndent           approved their aotion          in this
   ease, ana approved the teaoher*s              oontraot     so made.*    The
   governing xule on this question is analogous                   to that
   nhioh controls      where the legislaturs           is  required    to  pa68
   no speoial     law  until    notioe   iCgiren       a6 r%quir+d     by the
   oonetitPtion.       If such a law is passed the oourts will
    oonolu~i~elp     presume that they, la the exercise of the
    jadloial power thus oonferred,            hare founA the preeeaee
    OS the Zaets whloh authorired           them to ast.         Of oourse; we
   do not mesh to say that the judloial powers of sohtil
    trastees is In any sense so absolute.                 Xi this riew of the
    law is aorreot, then appellaat~s             wife, the teaoher Ia this
    oase, hail the right to aooapt the employment                  tendered~ and,
   having bouad themselves           by a legal eontraot,          the oounty
    authorltlea     cannot and ought not to be heard to qusstion
    the ralidlty of the oontraet so made. To hold othenrlse
   would be to seriously oripple our publfa suhool Bydam,
    for teaohers would then have to asoertain                 at their psril
    the existence     of the faots      authorizing       their appointment.
    Suppose the trustees hail aotuslly met and deter&ned                     that
    the average dally attendanoe           had reached 85, and had
    oontracted with plaintiff' as they did, ana suppose she
    had thereafter actually taught,, but the average attendanoe
    of 85 had not been maintaineg.':after she began, end suppose
    it was aftexwards ascertainah that the average baily
    attendance had never at any time reaohed eight+five, and
    that the trustees had made an honest mistake in so finding;
EOZ . &_.I:.Griffin, Ay   2, 1939, Pape 3

    couid it be held, 6.sar,ysound principle, ibat x.iieteacher
    mist lace tke mward for--Lerservices because of this
    zistake?~ Lr silpposethe teacher seekinp empioymtintshould
    differ iith the trustees as to Che facts, and should refuse
    to coiltract'c2'hetrustees ro,xidthen be robbed Or this
    necessary discrntiou, and it would be transferred to
    teachers not yet in any way connected with the school.
    This necessary discretion n;ustbe placed soltewhere,in
    order to render the system efficient, and it has been
    distinctly placed in the board of trustees. ;$abold,
    thereiore, that ii:eattendance was a matter with which the
    teacher had nothing to do, and that the contraot made with
    her by the board   and approved      by the auperfntendent      wa6
    ralid."

          In riew of the conetruotl.on plaoed upon Article Z78Q by
the oourt in the foregoing   aam;   you ar6 advised that valid
tsaohere'  contracrts may be eseouted ~by the board of trustsas of
a 00m-m   school district underthe faote 6tated, pmPia6a.      however,
that such contraots are approved by the oounty.6UpOr~t6ndant.

                                      ATTOI2MEYGEREIULOFTEXAS

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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                           No. 02-11193
                         Summary Calendar

JANIS L. HORTON,

                                    Plaintiff-Appellant,

versus

JOSEPH B. BOGAN, Warden, FMC - Carswell,
in his individual and official capacity;
JOHN T. RATHMAN, Associate Warden, Federal
Medical Center-Carswell, in his individual
and official capacity; LOREN THACKERA,
Facilities Manager, Federal Medical
Center-Carswell, in individual and official
capacity; TERRY DAVIS, Facilities Supervisor,
Federal Medical Center-Carswell, in individual
and official capacity; ROBERT BRACKEN, Safety
Manager, Federal Medical Center-Carswell, in his
individual and official capacity; C. STRATMAN,
Clinical Supervisor, Federal Medical Center-Carswell,
in their individual and official capacity,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 4:02-CV-816
                      --------------------
                         March 21, 2003

Before BARKSDALE, DEMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

     *
        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. 02-11193
                                 -2-

     Janis L. Horton, federal prisoner #05959-031, appeals

the district court’s dismissal of her claims under Bivens

v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971).    Horton filed suit against the defendants

for injuries allegedly sustained during her participation in

renovation work to turn a prison hospital room into a laundry

room.    The district court dismissed her claims with prejudice,

finding them precluded by 18 U.S.C. § 4126.    Horton does not

dispute that 18 U.S.C. § 4126 provides the exclusive remedy for

her tort claims against the Government.    See Aston v. United

States, 625 F.2d 1210, 1211 (5th Cir. 1980).    However, 18 U.S.C.

§ 4126 does not preclude Bivens claims, i.e., constitutional

claims against the defendants in their individual capacities.

See Affiliated Prof’l Home Health Care Agency v. Shalala,

164 F.3d 282, 286 (5th Cir. 1999); Vaccaro v. Dobre, 81 F.3d 854,

857 (9th Cir. 1996); Bagola v. Kindt, 39 F.3d 779, 780 (7th Cir.

1994).    Accordingly, the district court’s judgment is AFFIRMED

insofar as it concludes that 18 U.S.C. § 4126 is Horton’s

exclusive remedy for her tort claims against the Government.

Insofar as the judgment dismisses Horton’s Bivens claims as being

precluded by 18 U.S.C. § 4126, it is VACATED, and this case is

hereby REMANDED for consideration of Horton’s Bivens claims.

     Horton’s motion to amend her complaint is hereby DENIED.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART; MOTION TO

AMEND COMPLAINT DENIED.


246 Ga. 620 (1980)
272 S.E.2d 327
ALTERMAN FOODS, INC.
v.
LIGON et al.
36438.
Supreme Court of Georgia.
Argued September 8, 1980.
Decided November 5, 1980.
Hatcher, Stubbs, Land, Hollis & Rothschild, J. Barrington Vaught, for appellant.
James D. Patrick, for appellees.
BOWLES, Justice.
Plaintiff Ligon filed suit against defendant Alterman Foods, Inc. for injuries she sustained to her knee when she slipped and fell while shopping in defendant's store. Plaintiff's complaint averred that defendant's slippery floor proximately caused her fall and that *621 defendant knew or should have known of the dangerous condition of the floor. No one actually saw plaintiff fall.
In her deposition plaintiff testified that she had gone to the store to shop sometime after 2:00 p. m. on Friday afternoon as she had customarily done for four years; that although it was raining outside she noticed no water or wet areas on the floor; that the floor was "slippery and highly polished as usual"; that she did not notice the floor to be any more slippery than it had been on any other day she had been in the store until her foot slipped out from under her; that she did not see what she had slipped on either before or after she fell; that she did not know if there was a foreign substance on the floor which had caused her fall or if her fall was due to the slipperiness of the floor itself; that there were no marks or streaks on the floor or stains on her clothing which would have indicated what it was she slipped on.
On cross-examination plaintiff testified that in 1965 she was involved in an automobile accident which resulted in one of her legs being longer than the other and that since that time she was forced to wear a built-up shoe on one foot to compensate for her disability. Plaintiff stated that the foot on which she wore the built-up shoe was the one that had slipped out from under her in defendant's store.
In opposition to plaintiff's testimony defendant introduced depositions from a shopper who had assisted the plaintiff after her fall. This shopper testified that she sat on the floor to cradle plaintiff's head in her lap until the Rescue Squad arrived and that she would have "definitely known" if there was anything "unusual" about the floor. The shopper testified that she saw nothing on the floor that could have caused the plaintiff's fall and that the floor was not slippery.
Defendant also introduced a deposition from a store employee who had gone to the aid of plaintiff after her fall. The employee stated that he had examined the area where the plaintiff fell and found no foreign substance anywhere near her. He further testified that each Tuesday night after the store was closed store employees would wash and wax the floor with a non-slip wax.
The trial court granted defendant's motion for summary judgment. The Court of Appeals reversed, finding that "a genuine issue of material fact existed as to whether the floor was so slippery as to create an unreasonable risk that a store patron in [plaintiff's] circumstances would slip and fall on it." See, Ligon v. Alterman Foods, Inc., 154 Ga. App. 440 (268 SE2d 701) (1980), citing Langley v. Ellman's, Inc., 143 Ga. App. 16 (237 SE2d 415) (1977). The cases have tended to drift toward a jury issue in every "slip and fall" case. We granted certiorari to determine whether the plaintiff's evidence in *622 this case was sufficient to withstand defendant's motion for summary judgment in the light of other uncontradicted evidence showing no lack of care on defendant's part.
We reverse.
In the majority of the so-called "slip and fall" cases the plaintiff alleges either that he slipped on a foreign substance  grit, vegetable leaves, trash, objects which have fallen from store shelves, etc.  on defendant's floor, or that defendant's floor has been made dangerously slippery by waxing, oiling or otherwise treating it.
In cases involving foreign substances the customer does not ordinarily know if the substance which caused him to fall has been placed on the floor through negligence attributable to the owner or through that of someone other than the owner. While the owner or occupier of land is liable to invitees for his failure to exercise ordinary care in keeping the premises safe, Code Ann. § 105-401, "[b]efore an owner can be held liable for the slippery conditions of his floors, produced by the presence of a foreign substance thereon, it is necessary that the proof should show that he was aware of the substance or would have known of its presence had he exercised reasonable care." Conaway v. McCrory Stores, 82 Ga. App. 97, 101 (60 SE2d 631) (1950). Accord, Boatright v. Rich's, Inc., 121 Ga. App. 121 (173 SE2d 232) (1970). Thus it is said that only "when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted." Sears, Roebuck & Co. v. Reid, 132 Ga. App. 136, 138 (207 SE2d 532) (1974). Normally a proprietor is permitted a reasonable time to exercise care in inspecting the premises and maintaining them in a safe condition. Winn-Dixie Stores v. Hardy, 138 Ga. App. 342 (226 SE2d 142) (1976); Burger Barn, Inc. v. Young, 131 Ga. App. 828 (4) (207 SE2d 234) (1974). However, the proprietor is under no duty to continuously patrol the premises in absence of facts showing that the premises are unusually dangerous. Winn-Dixie Stores v. Hardy, supra; Boatright v. Rich's, Inc. supra; Angel v. Varsity, Inc., 113 Ga. App. 507 (148 SE2d 451) (1966). Knowledge on the part of the proprietor that there is a foreign substance on the floor that could cause patrons to slip and fall may be either actual or constructive. In some cases the proprietor may be held to have constructive knowledge if the plaintiff shows that an employee of the proprietor "was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard." Winn-Dixie Stores v. Hardy, supra, at 345; Sharpton v. Great A & P Tea Co., 112 Ga. App. 283 (145 SE2d 101) (1965).
In other cases the proprietor may be liable if he fails to exercise reasonable care in inspecting and keeping the premises in safe *623 condition. To sustain a cause of action in the latter type case the plaintiff must show that the foreign substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant. Winn-Dixie Stores v. Hardy, supra. "The length of time which must exist to show that the defendant had an opportunity to discover the defect will vary with the circumstances of each case [the] (nature of the business, size of the store, the number of customers, the nature of the dangerous condition and [the store's] location)." Sharpton v. Great A & P Tea Co., supra, at 285.
As stated above, not only must the plaintiff show that the defendant had knowledge of the presence of the foreign substance, but the plaintiff must also show that he was without knowledge of its presence. Sears, Roebuck & Co. v. Reid, supra. "`The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant's negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him." McGrew v. S. S. Kresge Co., 140 Ga. App. 149, 151 (230 SE2d 119) (1976); King Hardware Co. v. Teplis, 91 Ga. App. 13, 15 (84 SE2d 686) (1954). See also, Stowe v. Gallant-Belk Co., 107 Ga. App. 80 (129 SE2d 196) (1962).
However, a store patron "is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when [his] attention has been... diverted." Glover v. City Council of Augusta, 83 Ga. App. 314, 316 (63 SE2d 422) (1951). "[W]here a proprietor owes a duty to its invitees to keep the premises in a safe condition for their passage, the setting up of a distraction, by a sign or conduct, which will so divert the customer's attention as to be the proximate cause of his injury in colliding with what might otherwise be a patent and even safe appurtenance, may constitute actionable negligence on the part of the defendant." Jackson Atlantic, Inc. v. Wright, 129 Ga. App. 857, 859 (201 SE2d 634) (1973); Gray v. Delta Air Lines, 127 Ga. App. 45, 52 (192 SE2d 521) (1972).
Thus in order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant's floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.
The slip and fall cases involving foreign substances are inapplicable in an instance where the plaintiff alleges that he fell *624 because of the slippery wax, oil or other finish that defendant placed on the floor. Because the defendant applied or authorized the application of the floor treatment, he is presumed to have knowledge of its existence. See American National Bank v. Howard, 117 Ga. 834 (161 SE2d 838) (1968). In this type of case the plaintiff may make out a cause of action by showing an act or omission on the part of the defendant which was the proximate cause of his injury and which could not have been avoided by the plaintiff through the exercise of ordinary care. See, Hogg v. First National Bank, 82 Ga. App. 861 (62 SE2d 634) (1950).
The weight of authority in cases where the plaintiff slips and falls, allegedly due to the defendant's negligence in maintaining a highly waxed and slippery floor, is that "proof of nothing more than the occurrence of the fall is insufficient to establish the proprietor's negligence." 63 ALR2d 634, § 10 and cases cited therein.[1] To presume that because a customer falls in a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer's safety which he is not in this state. See Boatright v. Rich's Inc. and Angel v. Varsity, Inc. supra. "What the law requires is not warranty of the safety of everybody from everything, but such diligence toward making the store safe as a good business man is in such matters accustomed to use." Herschel McDaniel Funeral Home v. Hines, 124 Ga. App. 47, 49 (183 SE2d 7) (1971); McCrory Stores Corp. v. Ahern, 65 Ga. App. 334, 340 (15 SE2d 797) (1941).
Thus the plaintiff must, at a minimum, show that the defendant was negligent either in the materials he used in treating the floor or in the application of them.
The line of demarcation in the cases is a narrow one, but to say that the issue is one for the jury in every such case presents an intolerable burden on innocent or even the most diligent merchants.
In the case before us the plaintiff averred only that the "slippery and dangerous floor maintained by defendant" was the proximate cause of her fall. The defendant presented evidence of no defective condition in the floor. Plaintiff did not introduce any evidence of the quality of material used or the methods which defendant used in waxing and maintaining its floor. She merely stated that she slipped and fell, but that she could not determine what it was that caused her fall.
*625 "`The purpose of the Summary Judgment Act... is to eliminate the necessity for a trial by jury where, giving the opposing party the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law.'" Summer-Minter v. Giordano, 231 Ga. 601, 603 (203 SE2d 173) (1974); Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442) (1962). See Code Ann. § 81A-156. "It is the duty of each party at the hearing on the motion for summary judgment to present his case in full." Summer-Minter at 604. "On a motion for summary judgment the burden of establishing the nonexistence of any genuine issue of material fact is upon the movants ... and the evidence must be construed most strongly against them." Marsh v. Berens, 237 Ga. 135, 136 (227 SE2d 36) (1976); Wheeler v. Rowell, 234 Ga. 403, 404 (216 SE2d 301) (1975). "`When a motion for summary judgment is made and supported as provided in [Code Ann. § 81A-156 (e)], an adverse party may not rest upon mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.'" Food Fair, Inc. v. Mock, 129 Ga. App. 421, 422 (199 SE2d 820) (1973).
Defendant introduced testimony of witnesses who had examined the floor immediately after plaintiff's fall and who found neither a foreign substance nor any other defect in the floor. Defendant also introduced evidence that the floor had been waxed two and one-half days prior to plaintiff's fall and had been trafficked during that time by other customers. Defendant's evidence was sufficient to pierce the pleadings of the plaintiff and to shift the burden to her to produce issuable evidence or suffer judgment. See Meade v. Heimanson, 239 Ga. 177 (236 SE2d 357) (1977).
"The evidence [here] is not ambiguous, doubtful, or susceptible of more than one interpretation. There is no evidence that the defendant or its agents were guilty of any negligence. Indeed the record affirmatively shows the absence of any negligence by the defendant or its agents. The evidence simply shows that the plaintiff fell while shopping in the defendant's store. This is insufficient." Food Fair v. Mock, supra, at 423. Falling and injuring one's self proves nothing. Such happenings are commonplace wherever humans go.
It cannot be inferred from a silent record that defendant negligently maintained its floor. Plaintiff's statements, taken in the light most favorable to her, are merely conclusions and are probative of nothing. The fact is they show that she proceeded on the floor with *626 full knowledge of its condition "as usual."
The Court of Appeals erred in reversing the grant of defendant's motion for summary judgment.
Judgment reversed. All the Justices concur.
NOTES
[1]  In support of this position see Asmussen v. New Golden Hotel Co., 392 P2d 49 (1964); Safeway Stores v. Dobbs, 424 P2d 55 (1967); Sanderson v. Safeway Stores, 421 P2d 472 (1966); Tatom v. American Mfgrs. Mutual Ins. Co., 320 S2d 926 (1975); Pollack v. Oak Office Building, 151 NW2d 353 (1967).