169 F.3d 1182
99 Cal. Daily Op. Serv. 1488, 1999 DailyJournal D.A.R. 1907Frank A. ROMANO;  Maria Romano, Plaintiffs-Appellants,v.William BIBLE;  Steve Ducharme;  C. Brian Harris;  DeborahP. Griffin;  Augie Gurrola;  William Curran;  Bob J. Lewis;Gerald Cunningham;  Thomas Roach;  Dennis Amerine;  JohnO'Reilly;  Kenneth R. Gragson;  Betty B. Vogler;  NevadaGaming Control Board;  Nevada Gaming Commission;  FrankieSue Del Papa, Attorney General of the State of Nevada,Defendants-Appellees.
No. 97-17019.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Dec. 11, 1998.Decided Feb. 26, 1999.

Edward S. Coleman, Las Vegas, Nevada, for the plaintiffs-appellants.
P. Mark Ghan, Solicitor General, Office of the Attorney General, Carson City, Nevada, for the defendants-appellees.
Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding.  D.C. No. CV-97-00436-HDM
Before:  FLETCHER, FERGUSON, and THOMPSON, Circuit Judges.
FERGUSON, Circuit Judge:

1
Frank Romano voluntarily relinquished his gaming license and later wanted it back, claiming that the defendants violated his due process and equal protection rights.  When the Nevada Gaming Commission refused to revisit the issue, Frank and Maria Romano brought this action for civil damages pursuant to 42 U.S.C. § 1983 against the Nevada Attorney General and current and former members of the Nevada Gaming Commission and the Nevada Gaming Control Board.  The Romanos contend that the defendants violated their constitutional rights by depriving Mr. Romano of his gaming license.  The district court granted the state defendants' motion to dismiss on seven alternate grounds.  We have jurisdiction pursuant to 28 U.S.C. § 1291.  We affirm on the grounds that absolute immunity and the Eleventh Amendment shield the defendants from liability.

I. BACKGROUND

2
We state the facts, as we must in this appeal, as they are set forth in the Romanos' complaint.  Since 1981, the Nevada Gaming Commission ("Commission") licensed Mr. Romano to own, manufacture, and distribute gaming devices as a partner in American Coin Companies.  In 1989, the Nevada Gaming Control Board ("Board"), which investigates and prosecutes violations of the gaming laws, filed a complaint with the Commission seeking disciplinary action against Mr. Romano and his partners, Rudolph and Rudolph M. LaVecchia.  The Board alleged that the LaVecchias altered gaming devices to defraud players, a practice known as "gaffing," and that Mr. Romano was vicariously criminally liable for their conduct.  The LaVecchias fled Nevada, leaving Mr. Romano to contend with the authorities.

3
For a number of reasons, including the government's failure to cooperate with discovery and ineffective assistance of counsel, Mr. Romano entered into a stipulation with the Board in 1990 agreeing to relinquish his gaming license and to pay a fine.  As part of the stipulation, Mr. Romano waived his statutory right to a hearing and waived any legal rights that he might have against Board members.  While acknowledging that the stipulation was voluntarily signed, Mr. Romano did not admit liability.

4
As a result of the revocation of Mr. Romano's license and the closure of his businesses, the Romanos suffered financial losses and filed for bankruptcy in 1992.  The Romanos also filed an adverse complaint in the bankruptcy proceeding against the LaVecchias.  During that proceeding, an investigator employed by the Board testified to Mr. Romano's lack of knowledge concerning the fraud.  One of the bankruptcy court's factual findings was that Mr. Romano was not culpable for his partners' conduct.

5
Consequently, Mr. Romano petitioned the Commission to vacate its order approving the stipulation which had resulted in the voluntary relinquishment of his gaming license.  The Commission concluded that it lacked jurisdiction to hear the petition.  Nevada law provides that, if no petition for judicial review has been filed, a motion for rehearing must be brought within 10 days of the Commission's order.  Seven years had elapsed since Mr. Romano entered into the stipulation.  The Commission also declined to consider Mr. Romano's petition under a regulation permitting it to issue discretionary rulings.  The result was that Mr. Romano could not obtain discovery.

6
The Romanos then filed this action, contending that the failure of the Board to provide them with evidence in its possession tending to exculpate Mr. Romano violated their due process rights.  In addition, the plaintiffs alleged that by instituting disciplinary action against Mr. Romano, the Board selectively enforced the Nevada Gaming Act in violation of the plaintiffs' equal protection rights.  The complaint sought compensatory and punitive damages.  After a hearing, the district court granted the state's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).  The court concluded that:  (1) the Romanos did not have a property right in the gaming license;  (2) the Romanos failed to allege an equal protection violation in the pleadings;  (3) Mr. Romano waived his right to file a § 1983 action against state officials by signing the stipulation;  (4) the statute of limitations prohibits the action;  (5) the Eleventh Amendment bars the action against all defendants;  and (6) both absolute and qualified immunity shield the defendants from liability.

II. DISCUSSION

7
We review de novo a district court's dismissal for failure to state a claim under Rule 12(b)(6).  Steckman v. Hart Brewing Inc., 143 F.3d 1293, 1295 (9th Cir.1998).  We can affirm the district court's dismissal for failure to state a claim on any basis fairly supported by the record.  Janicki Logging Co. v. Mateer, 42 F.3d 561, 564 (9th Cir.1994).

A. Eleventh Amendment

8
Whether a state is immune from suit under the Eleventh Amendment is a question of law which we review de novo.  Micomonaco v. Washington, 45 F.3d 316, 319 (9th Cir.1995).  The Nevada Gaming Control Board and the Nevada Gaming Commission as agency defendants in this action are immune from suit.  The Eleventh Amendment bars suits against the State or its agencies for all types of relief, absent unequivocal consent by the state.  Pennhurst v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).  Nevada has not consented to suit by expressly waiving its Eleventh Amendment immunity.  N.R.S. § 41.031(3).  Accordingly, we affirm the district court's dismissal as to the state agency defendants.

9
The Eleventh Amendment also bars the Romanos' claims against the remaining defendants in their official capacities.  The amendment prohibits actions for damages against an "official's office," that is, actions that are in reality suits against the state itself.  Stivers v. Pierce, 71 F.3d 732, 749 (9th Cir.1995).

10
However, the Romanos have brought suit against individual Board and Commission members in their personal capacities as well.  They assert that, while acting under color of state law, the defendants deprived Mr. Romano of a protected property interest in violation of due process.  They need to allege nothing more to avoid the Eleventh Amendment's shield.  The Supreme Court has made it clear that a plaintiff can establish personal liability in a § 1983 action simply by showing that the official acted under color of state law in deprivation of a federal right.  Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991).  We also have presumed that officials necessarily are sued in their personal capacities where those officials are named in a complaint, even if the complaint does not explicitly mention the capacity in which they are sued.  See Shoshone-Bannock Tribes v. Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir.1994);  Cerrato v. San Francisco Community College Dist., 26 F.3d 968, 973 n. 16 (9th Cir.1994).  Consequently, the Eleventh Amendment imposes no bar to the Romanos' action against the individual defendants in their personal capacities.

B. Absolute Immunity

11
The district court concluded that absolute immunity protected the individual defendants named by the Romanos.  We review de novo the district court's determination regarding immunity.  Trevino v. Gates, 23 F.3d 1480, 1482 (9th Cir.1994).

12
Absolute immunity extends to agency officials when they preside over hearings, initiate agency adjudication, or otherwise perform functions analogous to judges and prosecutors.  Butz v. Economou, 438 U.S. 478, 514-15, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978).  The Supreme Court has adopted a "functional approach" to determine whether an official is entitled to absolute immunity.  This approach looks to the nature of the function performed, not the identity of the actor who performed it.  Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993).  Judges and those performing quasi-judicial functions are absolutely immune from damages for acts performed within their judicial capacities.  Stump v. Sparkman, 435 U.S. 349, 360, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978).  Prosecutors are extended absolute immunity from damages when performing activities closely associated with the judicial process.  Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).  Quasi-prosecutorial immunity, however, does not attach to administrative or investigatory acts by prosecutors unrelated to their preparation for and initiation of prosecution.  Buckley, 509 U.S. at 273, 113 S.Ct. 2606.   In extending absolute immunity to those within administrative agencies who perform prosecutorial and judicial functions, the Court recognized that administrative proceedings are usually adversarial in nature and provide many of the same features and safeguards that are provided in court.  Butz, 438 U.S. at 513, 98 S.Ct. 2894.   Thus, we must assess the function that Nevada gaming officials performed when they engaged in the alleged unconstitutional conduct to determine if they are entitled to absolute immunity from damages.

13
The Romanos contend that the individual defendants acted outside the scope of their duties.  We disagree.  Under Nevada law, Board and Commission members have access to all gaming premises to inspect or seize any gaming devices or documents relevant to suspected violations of the gaming laws.  N.R.S. § 463.140.  The Board must investigate the qualifications of each applicant for a gaming license and has discretion to recommend denial or revocation of a license.  N.R.S. § 463.1405(1), (2).  The Commission then may deny or revoke a license for "any cause deemed reasonable."  N.R.S. § 463.1405(3).  Both Board and Commission members can issue subpoenas, compel the attendance of witnesses, administer oaths, and require testimony under oath.  N.R.S. § 463.140(5).

14
Within the gaming regulatory scheme, the attorney general provides legal advice to the Board and Commission and represents them in proceedings initiated against them.  N.R.S. § 463.0199.  Either agency may recommend that the attorney general prosecute any public offense committed in violation of the gaming laws.  N.R.S. § 463.141.  In Mr. Romano's case, Attorney General Frankie Sue Del Papa is the predecessor of the attorney general who prepared the stipulation on behalf of the Board.  The Romanos sued her as the party "responsible for the ... supervision and prosecution" of Mr. Romano's case.  She is entitled to absolute immunity because the activity of representing the Board and Commission in the disciplinary action against Mr. Romano is within the scope of her duties in pursuing quasi-judicial proceedings.  See Hirsh v. Justices of Supreme Court of Cal., 67 F.3d 708, 715 (9th Cir.1995) (concluding that the California Attorney General was entitled to absolute immunity for his limited role in the Bar disciplinary system).

15
The Gaming Control Board conducts investigations and decides whether to file complaints with the Commission disciplining a licensee.  N.R.S. § 463.310.  In so doing, it acts much like a prosecutor.  The Board initiated disciplinary proceedings against Mr. Romano and entered into settlement negotiations with him, actions that are prosecutorial in nature.  Moreover, prosecutorial functions that require the exercise of discretion are absolutely immune, and the decision whether to disclose exculpatory evidence which has not been requested is such a function.  See Imbler, 424 U.S. at 431-32 n. 34, 96 S.Ct. 984.  Thus, the Board is entitled to absolute immunity as well.

16
Commission members adjudicate disciplinary proceedings against licensees.  They conduct hearings with many of the traditional safeguards of courts, and they issue orders.  Every party to a hearing before the Commission can call and examine witnesses, introduce exhibits, cross-examine opposing witnesses, impeach witnesses, and offer rebuttal evidence.  N.R.S. § 463.313.  The Commission may take "judicial notice" of facts and may cite parties for contempt like any Article III court.  Id.;  N.R.S. § 463.314.  Members who hear the evidence against a licensee must render a written decision on the merits which includes findings of fact.  N.R.S. § 463.3145.  Here, as with any judicial plea bargain, the Commission approved the stipulation entered into by Mr. Romano and the Board to resolve his disciplinary proceeding.  Like the other defendants, Commission members carried out acts of independent decision-making integral to the functioning of a quasi-judicial process.

17
In Butz, the Court considered several other factors to be characteristic of the judicial process and, thus, relevant to the absolute immunity inquiry.  These factors include the adversarial nature of the process, the correctability of errors on appeal, and the presence of safeguards in the regulatory framework to control unconstitutional conduct and to insulate the adjudicators from political influence.  438 U.S. at 512-13, 98 S.Ct. 2894.   Statutory procedural safeguards in the gaming disciplinary process satisfy these factors.  In addition to the safeguards noted above, licensees are entitled to judicial review of the Commission's decision.  N.R.S. §§ 463.315, 463.318.  The Commission may grant a rehearing upon petition if additional material evidence exists.  N.R.S. § 463.3145.  Parties may have counsel.  Besides the opportunity to present and cross-examine witnesses, parties are provided with adequate notice of the hearing and a copy of the charges against them.  N.R.S. § 463.312.  Nevada also attempts to shield Commission members from political influence.  The governor appoints members of the Commission for staggered terms of four years, and each member can be removed by the governor.  N.R.S. § 463.024;  1985 Nev.Stat., ch. 266, § 2 at 804.  No elected official or officer of any political party can serve as Commissioner, or any person with a pecuniary interest in the gaming industry.  N.R.S. §§ 463.023, 463.025.  Not more than three members can be of the same major political party.  Id.

18
In addition, other courts have extended Butz to state agency officials involved in the adjudication of state regulatory matters, at least where the regulatory scheme provided safeguards against arbitrary and biased decision-making.  See, e.g., Hirsh, 67 F.3d at 715 (Bar Court judges and prosecutors in attorney disciplinary actions have quasi-judicial or quasi-prosecutorial immunity);  Bermudez v. Duenas, 936 F.2d 1064, 1066 (9th Cir.1991) (parole board officials entitled to absolute immunity for activities which are part of the decision to grant, deny or revoke parole).

III. CONCLUSION

19
The case at the bar underscores the importance of extending absolute immunity to gaming officials involved in disciplinary proceedings.  The highly regulated gaming industry in Nevada generates millions of dollars.  Where these dollars go turn on decisions made by Board and Commission members, who determine which people will or will not be "players" in the industry.  With so much at stake in their decisions, these officials must be able to pursue disciplinary proceedings "free from intimidation and harassment."  Butz, 438 U.S. at 516, 98 S.Ct. 2894.   To deny them immunity would be to disservice the broader public interest in having people perform these functions without fear of having to personally defend their actions in civil damages lawsuits like the Romanos'.  See Babcock v. Tyler, 884 F.2d 497, 502 (9th Cir.1989).  We conclude that absolute immunity should protect these gaming decisions.1

20
AFFIRMED.

1
 Because this case can be resolved on Eleventh Amendment and immunity grounds, we do not reach the other issues raised in this appeal.  Nor do we express any view on the merits of the complaint


699 F.2d 1164
*U. S.v.Griffis
82-5293
UNITED STATES COURT OF APPEALS Eleventh Circuit
2/11/83

1
M.D.Fla.

AFFIRMED

2
---------------

* Fed.R.App. P. 34(a); 11th Cir. R. 23.


895 A.2d 97 (2006)
CHESTER COMMUNITY CHARTER SCHOOL v. ZAGER[1].
No. 1490CD05.
Commonwealth Court of Pennsylvania.
February 1, 2006.
Decision without published opinion. Affirmed.
NOTES
[1]  Reargument Denied March 27, 2006.


487 F.Supp.2d 1089 (2007)
Corneliu ANDRON, Plaintiff,
v.
Alberto GONZALES, Attorney General of the United States of America, et al., Defendants.
No. 06-3405-CV-S-GAF.
United States District Court, W.D. Missouri, Southern Division.
May 21, 2007.
Jonathan James Willmoth, The McCrummen Immigration Law Group, LLC, North Kansas City, MO, for Plaintiff.
Jeffrey P. Ray, Office of the United States Attorney, Kansas City, MO, for Defendants.

ORDER
FENNER, District Judge.
Presently before the Court is a Motion for Summary Judgment filed pursuant to Federal Rule of Procedure 56 ("Rule 56") by Plaintiff, Corneliu Andron ("Plaintiff'). (Doc. # 23). Plaintiff petitions the Court *1090 for a hearing on his naturalization application and requests that this Court either enter an order naturalizing him or remand the case to the United States Citizenship and Immigration Services ("USCIS") with appropriate instructions as provided by the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1447(b). Id. Also before the Court is a Motion to Dismiss, or in the Alternative, for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)") and Rule 56 by Defendants Alberto Gonzales, Attorney General of the United States; Michael Chertoff, Secretary of the United States Department of Homeland Security; Dr. Emilio Gonzales, Director, United States Citizenship and Immigration Services; Michael Jaromin, District Director United States Citizenship and Immigration Services; Robert Mueller, III, Director, Federal Bureau of Investigations ("FBI"); and the United States Attorney for the Western District of Missouri, (collectively "Defendants"). (Doc. # 27). Defendants argue that the Court does not have subject matter jurisdiction over this matter, or should remand it back to the appropriate administrative agency. For the reasons stated below, Plaintiffs Motion for Summary Judgment is GRANTED and this matter is REMANDED to the USCIS to determine the matter within sixty (60) days of receiving a completed background investigation from the FBI. Defendants' Motion is DENIED.

DISCUSSION
I. Facts
This case arises from Defendants' purported failure to determine Plaintiffs application for naturalization in a timely manner. (Doc. # 24). Plaintiff, who is a citizen of Romania, entered the United States as a refugee and was granted permanent residence as of November 14, 1979. (Doc. # 1). Plaintiff applied for naturalization on August 27, 2004 and was interviewed May 11, 2005 at the Kansas City District Office of the USCIS. Id. Plaintiff passed the tests required for naturalization, but is awaiting the conclusion of the required security checks. (Doc. # 24, 27).
Applicants seeking naturalization are subject to criminal and national security background checks to ensure they are eligible for naturalization and do not pose a risk to national security or public safety. (Perry Decl. ¶ 4; see also Pub.L. No. 105-119, Nov. 26, 1997, 111 Stat. 2448, set forth in the historical and statutory notes to 8 U.S.C. § 1446). The required checks include a National Name Check Program administered by the FBI. Id. Following the events of September 11, 2001, the FBI is working through a backlog of name checks that has resulted in significant delays in processing some requests. (Scott Decl. ¶¶ 18-19). The FBI received Plaintiffs name check request April 29, 2004 but has not yet completed the check. (Scott Decl. ¶ 22). The USCIS has advised Plaintiff it is unable to adjudicate his application for naturalization until the name check is completed. (Perry Decl. ¶¶ 16-17). As a result, Plaintiff filed the present action for a hearing on his application or for an order of mandamus.
II. Legal Standards
A. Motion to Dismiss
Defendants argue this case should be dismissed pursuant to Rule 12(b)(1) because § 1447(b) does not vest this Court with federal question jurisdiction to adjudicate Plaintiffs claims. (Doc. # 27). Federal courts are courts of limited jurisdiction and "have only the power that is authorized by Article HI of the Constitution and the statutes enacted by Congress pursuant thereto." Marine Equip. Mgmt. Co. v. United States, 4 F.3d 643, 646 (8th *1091 Cir.1993) citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986); see also Godfrey v. Pulitzer Pub. Co., 161 F.3d 1137, 1141 (8th Cir.1998). The party asserting jurisdiction bears the burden of establishing that a cause lies within the federal court's limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). "The first and fundamental question presented by every case brought to the federal courts is whether it has jurisdiction to hear a case." Bender, 475 U.S. at 541, 106 S.Ct. 1326.
B. Summary Judgment
Summary judgment is proper if the evidence, viewed in, the light most favorable to the nonmoving party, indicates there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Castillo v. Ridge, 445 F.3d 1057, 1060 (8th Cir.2006) citing Gipson v. Immigration and Naturalization Service, 284 F.3d 913, 916 (8th Cir.2002). The summary judgment rule is intended "to isolate and dispose of factually unsupported claims" and should be applied to accomplish this purpose. Prudential Ins. Co., 121 F.3d at 366. In the interest of promoting judicial economy, summary judgment should be granted to prevent the trial of cases lacking a genuine issue of material fact. Inland Oil and Transp. Co. v. U.S., 600 F.2d 725, 728 (8th Cir. 1979).
III. Analysis
A. Subject Matter Jurisdiction
Plaintiff alleges that § 1447(b) expressly grants this Court subject matter jurisdiction over his claim that his naturalization application has been unduly delayed. (Doc. # 24). That section allows an applicant to request a hearing before a district court:
If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.
Plaintiff argues that the "examination" in question is the applicant interview that was completed on May 11, 2005. (Doc. # 24). In Plaintiffs view, that interview triggered the running of the 120-day period, giving this Court jurisdiction over this matter. Id. The position urged by Plaintiff has been adopted by a clear majority of the courts considering this issue. See, e.g., Manzoor v. Chertoff, 472 F.Supp.2d 801, 807 (E.D.Va.2007); Khelifa v. Chertoff, 433 F.Supp.2d 836, 840-41 (E.D.Mich.2006); El-Daour v. Chertoff, 417 F.Supp.2d 679, 681-82 (W.D.Pa.2005); Hussein v. Gonzales, 474 F.Supp.2d 1265, 1268 (M.D.Fla. 2007); Castracani v. Chertoff, 377 F.Supp.2d 71 (D.D.C.2005); Shalabi v. Gonzales, Civil No. 4:06CV866, 2006 WL 3032413 (E.D.Mo. Oct. 23, 2006); Essa v. U.S. Citizenship and Immigration Services, Civil No. 051449, 2005 WL 3440827 (D.Minn. Dec. 14, 2005) (unpublished); Shalan v. Chertoff, Civil No. 05-10980, 2006 WL 42143 (D.Mass.Jan.6, 2006) (unpublished); Al-Kudsi v. Gonzales, Civil No. 05-1584, 2006 WL 752556 (D.Or. March 22, 2006) (unpublished); Daami v. Gonzales, Civil No. 05-3667, 2006 WL 1457862 (D.N.J. May 22, 2006) (unpublished); Meyersiek v. U.S. Citizenship and Immigration Service, Civil No. 05-398, 2006 WL 1582397 (D.R.I. June 6, 2006) (unpublished); Khan v. Chertoff, Civil No, 05-00560, 2006 WL 2009055 (D.Ariz. July *1092 14, 2006) (unpublished); Affaneh, v. Hansen, Civil No. 3-06-267, 2007 WL 295474 (S.D.Ohio Jan. 29, 2007) (unpublished).
Plaintiff suggests the majority view is correct for three reasons. First, several courts have found that the plain language in § 1447(b) requiring the 120-day period to begin on "the date on which the examination is conducted" suggests a specific event rather than a process. (Doc. # 24 citing Shalabi, 2006 WL 3032413 *4; El-Daour, 417 F.Supp.2d at 681-83; Khelifa, 433 F.Supp.2d at 841). Moreover, Plaintiff argues that without a set date for the examination, there would be no way to measure the 120 days, rendering that section meaningless. Id. Second, Plaintiff argues that the statutory distinction between the investigation and the examination suggests they are "discrete events under the statutory scheme." Id. quoting Shalabi, 2006 WL 3032413 *4. Finally, Plaintiff claims that the regulations promulgated by the USCIS make it clear that the investigation and the examination are separate and that the term "examination" means an individual event.[1]Id.
Defendants argue that the term "examination" in this section is not a single event, but in fact refers to a process that includes completion of the FBI name check. (Doc. # 27); see Danilov v. Aguirre, 370 F.Supp.2d 441, 443-44 (E.D.Va.2005) (finding jurisdiction-shifting provision never triggered as mandatory FBI investigation had not been completed). Defendants suggest that the language in § 1446 referred to in § 1447(b) indicates a process because the examination may include the issuance of subpoenas to compel the attendance and testimony of witnesses and the production of relevant papers, books, and documents as well as the taking of testimony. Id. According to Defendants, the Court lacks jurisdiction because the 120-day period does not start until that, entire process is complete, which includes Plaintiff's pending FBI background check. Id.
The term "examination" is undefined, in the INA. Although a consensus as to the meaning of the word "examination" as used in § 1447(b) appears to be forming in the district courts, neither the Eighth Circuit nor any of its sister circuits have interpreted that statutory language. Therefore, to resolve the issues between the parties, the Court must determine the meaning of the term "examination" as used in the statute at issue.
The first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with respect to the precise question at issue. United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). If the intent of Congress is clear, the Court "must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). "When reviewing a federal agency's interpretation of a federal statute, a federal court must defer to the agency's interpretation only if it finds that the agency's interpretation is consistent with the plain language of the statute or represents a reasonable interpretation of an ambiguous statute." United States ex rel. Zissler v. Regents of Univ. of Minnesota, 154 F.3d 870, 874 (8th Cir.1998) citing Chevron, 467 U.S. at 842-45, 104 S.Ct. 2778. Whether the meaning of statutory language is plain or ambiguous is determined by referring to the language itself, the context in which it is used, and the broader context of the statute as a *1093 whole. Robinson v. Shell Oil Co., 519 U.S. 337, 340-41, 117 S.Ct. 843, 136 L.Ed.2d 808(1997) (citations omitted).
Having thoroughly considered the language of § 1447(b), the context in which it is used, and the policy underlying the INA in general and § 1447(b) in particular, the Court finds the term "examination" as used in § 1447(b) clearly refers to the applicant's initial examination. The reference to a particular date indicates a single, specific event  the date of Plaintiffs initial examination  rather than an ongoing process. Moreover, the date of his exam is the only date an applicant could reasonably be expected to know. Tying an applicant's specific remedy for delay to a nebulous internal process would render the remedy ineffective at best and would make the statute very difficult to administer.
An interpretation of § 1447(b) that leaves an applicant with no real recourse for delay is at odds with Congress's intent in passing the statute. Silebi De Donado v. Swacina, No. 07-20190, 2007 WL 1417600 (S.D.Fla. May 14, 2007). While the Court acknowledges that neither of the suggested interpretations completely reconciles all of the language in § 1446 and § 1447(b), any indication that the "examination" means more than the examination of the applicant is not enough to erode the clear intent of Congress that an applicant have a cognizable remedy for delays in processing his application. Accordingly, 1447(b) gives this Court subject matter jurisdiction over Plaintiffs claim because more than 120 days have passed since Plaintiffs examination on May 11, 2005.
B. Remand
Under the terms of § 1447, the Court can either determine the matter or remand it to the USCIS with appropriate instructions. Plaintiff requests that the Court conduct a hearing on his application for naturalization or remand the matter with very specific instructions. (Doc. # 31). Defendants ask that the Court decline to intercede and remand the matter back to the USCIS. (Doc. # 27). Defendants argue that if the Court chooses to determine the matter, it will still need a complete FBI background check before it can make a decision on Plaintiffs naturalization application. Id. citing Daami, 2006 WL 1457862 at *6 (finding court in same position as the agency given the statutory prohibition on adjudicating an application without a complete investigation) and Manzoor, 472 F.Supp.2d at 808-09 (finding itself ill equipped to conduct background checks and recognizing the agency's ability to interpret the results of such checks and follow up appropriately).
In light of the circumstances of the present case and the arguments presented, the Court finds it proper to REMAND this matter to the USCIS with instructions to make a decision on Plaintiffs application within sixty (60) days of receiving a completed background check from the FBI.

CONCLUSION
Based on the foregoing, Defendants' Motion is DENIED and Plaintiffs Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. This matter is HEREBY REMANDED to the USCIS for resolution consistent with this Order.
IT IS SO ORDERED.
NOTES
[1]  For a thorough discussion of the implementing regulations see Manzoor, 472 F.Supp.2d at 806-08.


841 P.2d 675 (1992)
116 Or. App. 436
James Joseph HICKEY, Appellant,
v.
Merthal SETTLEMIER, Respondent.
90-1082; CA A69975.
Court of Appeals of Oregon.
Argued and Submitted March 11, 1992.
Decided November 18, 1992.
Reconsideration Denied February 10, 1993.
*676 Andrew P. Ositis, Salem, argued the cause and filed the brief for appellant.
John R. Osburn, Eugene, argued the cause for respondent. With him on the brief were William E. Flinn and William E. Flinn Associates, Eugene.
Before RICHARDSON, P.J., and DEITS and DURHAM, JJ.
DEITS, Judge.
Plaintiff appeals a summary judgment for defendant in this defamation action. The trial court granted the judgment on the ground that, as a matter of law, defendant's statements were either true or substantially true or defendant had not published them. We reverse.
Plaintiff sells animals for medical research and has a federal license to do so. Defendant is plaintiff's neighbor. Defendant made the allegedly defamatory statements in an interview on the television program, "20/20." The pertinent statements were:
"[Correspondent]: * * * [M]ore than 300 people in central Oregon have complained that their pets were stolen and delivered to [plaintiff's] operation. Many want it closed down, including [plaintiff's] own godmother, [defendant], who lives next door. She says there's no doubt in her mind that he's mistreating animals and dealing in stolen pets.
"[Defendant]: And it was very disturbing to think that things were going on over there that I saw that would happen in this day and age to animals. Even though they're being used for research, it still is, to me, very inhuman.
"[Correspondent]: How would you describe the conditions over there for the animals?
"[Defendant]: Well, the time I was over there, was [sic] three or four animals in a cage where there should be two. There was [sic] feces on the floor. Very warm day, no shade, no water. The food bowls were empty and the dogs were fighting each other.
"[Correspondent]: And when the animals aren't suitable for research, Lethal Settelmier [sic] says they're shot. Have you heard gunshots?
"[Defendant]: Yes, I have. Sometimes, it's once a week. Sometimes, its maybe two times a week. Just this month, there was [sic] three gunshots early in the morning about nine o'clock. And we saw pools of blood where dogs could have died and .22 shells."
Defendant denies making the statement that "there's no doubt * * * that he's mistreating animals and dealing in stolen pets" attributed to her by the correspondent but admits that she made the other statements.
Plaintiff assigns error to the trial court's summary judgment. A summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. We view the facts, and all reasonable inferences that may be drawn, in the light most favorable to the non-moving party. Dargen v. King, 87 Or.App. 349, 742 P.2d 72, rev. den. 304 Or. 437, 746 P.2d 1166 (1987).
*677 Defendant moved for summary judgment on the ground that the statements made by defendant were true or substantially true. Generally, whether a statement is true or substantially true is a question of fact for the jury. Restatement (Second) Torts, § 617(b). Defendant asserted below and argues here that the truth of the statements was established as a matter of law by earlier administrative proceedings before the United States Department of Agriculture in which it was held that plaintiff had violated certain regulations of the Animal Welfare Act, 7 USC §§ 2131-2157, and that plaintiff is precluded from relitigating the facts. The trial court granted the summary judgment on that basis.
The doctrine of issue preclusion bars a party who has had a full and fair opportunity to litigate an issue of fact or law from relitigating the same issue in another proceeding. Drews v. EBI Companies, 310 Or. 134, 140, 795 P.2d 531 (1990). It applies to administrative proceedings if the party against whom it is asserted has had a full opportunity to litigate the issues, there was a substantial incentive to litigate the issues and the issues were subject to judicial review. Chavez v. Boise Cascade Corp., 307 Or. 632, 772 P.2d 409 (1989). In this case, the proceeding before the Department of Agriculture was an adjudicative proceeding in which plaintiff had a full opportunity to litigate the issues presented. He was represented by counsel and was allowed to call and cross-examine witnesses. There is a transcript of the proceedings, there was a neutral factfinder and the final order was subject to judicial review. Plaintiff had the incentive to contest the issues, because his business license was at stake and substantial fines could have been imposed.[1]
Plaintiff first contends that issue preclusion does not apply, because he has appealed the administrative order. However, in Oregon, a pending appeal does not affect the finality of a judgment for purposes of claim or issue preclusion. Ron Tonkin Gran Turismo v. Wakehouse Motors, 46 Or.App. 199, 207, 611 P.2d 658, rev. den. 289 Or. 373 (1980).
Plaintiff next argues that the earlier administrative proceeding does not bar him from litigating the truth of defendant's statements, because the facts determined in that proceeding were not the same as the facts alleged in this defamation action. We agree. In order for issue preclusion to bar a party from litigating an issue, the issues in both actions must be identical. Mazorol v. Coats, 102 Or.App. 8, 11, 793 P.2d 326, rev. allowed 310 Or. 393, 798 P.2d 672 (1990). Defendant characterizes the administrative order as a conclusive finding that plaintiff mistreats animals. That is not correct; it determined that plaintiff had violated several regulations under the Animal Welfare Act. The regulations were, for the most part, recordkeeping requirements. Although the hearings officer stated that one of the purposes of the regulations requiring records is to prevent mistreatment of animals by ensuring accountability, he did not make any findings directly concerning the circumstances described by defendant in her statements on "20/20," nor did he draw a general conclusion that plaintiff mistreats animals.
A statement may be considered true or substantially true if the "gist" or "sting" of the statement is true, even though the statement contains slight inaccuracies. Restatement (Second) Torts, § 581 (1977); see also Prosser and Keeton, Torts 842, § 116 (5th ed 1984). Although plaintiff's violations of the federal act involved circumstances similar to those said to have existed by defendant, we do not think it can be said, as a matter of law, that the earlier violations established conclusively the substantial truth of defendant's statements. The past violations may be relevant to determining whether defendant's statements were true. However, the truth of the statements is a question of fact for the jury.
*678 Defendant also argues that plaintiff's admissions establish as a matter of law the substantial truth of two of her statements: (1) that plaintiff "deal[s] in stolen pets"; and (2) that plaintiff sometimes shoots animals. Plaintiff admits that his sole means of destroying animals when that becomes necessary is by gunshot and that he has unwittingly purchased, but has not sold, stolen animals. However, defendant's statements about the gunshots could be interpreted by a rational trier of fact to say more than that he shoots animals. They could be understood to imply that plaintiff unnecessarily shoots animals. Plaintiff did not admit that conduct. Additionally, the admission that on occasion he has unknowingly purchased, but has never sold, stolen pets need not be found by a trier of fact to be an admission that he deals in stolen pets. We conclude that plaintiff's admissions do not establish, as a matter of law, the truth or substantial truth of any of plaintiff's statements. Whether plaintiff's admissions establish the truth or substantial truth of any of defendant's statements is a question of fact for the jury. Restatement (Second) Torts, § 617(b).[2]
Finally, defendant argues that she is entitled at least to a partial summary judgment, because she denied making the statement regarding stolen pets and plaintiff failed to produce any admissible evidence that defendant published that statement. Publication is an essential element in a defamation action. Dell v. McKay's Market, 273 Or. 752, 543 P.2d 678 (1975). Although defendant denies making the statement, the videotape of the television show that is in the record shows the correspondent stating that defendant did make the statements. Viewing the evidence in the light most favorable to plaintiff, the non-moving party, we conclude that the evidence is sufficient to make the publication of the statement a disputed question of fact. Because there are genuine issues of material fact, the trial court improperly granted a summary judgment for defendant.
Reversed and remanded.
NOTES
[1]  As a result of the administrative proceedings, plaintiff was fined $10,000 and his license was suspended for one year.
[2]  "The rule that makes truth relevant to the `gist' or `sting' of the publication protects the defendant who has got the details wrong but the `gist' right; but it also works in the reverse, to impose liability upon the defendant who has the details right but the `gist' wrong. Thus, if the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts, he may be held responsible for the defamatory implication, unless it qualifies as an opinion, even though the particular facts are correct. On the other hand, the defendant who states all the particular facts correctly, does not omit facts necessary to put them in context, and does not juxtapose the facts in a farfetched way to create libelous implications, is not liable even if the conclusion to be drawn from the facts is clearly defamatory, at least in the case of a public figure. The difference in the two cases seems to be whether the particular facts were manipulated, omitted, or artificially juxtaposed to create untrue implications; if so, the truth of the particular facts provides no protection; if not, the truth is complete protection." Prosser and Keeton, Torts 117, § 116 (5th ed supp 1988). (Footnotes omitted.)


                                                        [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                  FILED
                                                         U.S. COURT OF APPEALS
                         ________________________          ELEVENTH CIRCUIT
                                                                June 23, 2005
                                No. 04-15985                THOMAS K. KAHN
                                                                  CLERK
                         ________________________
                      D.C. Docket No. 01-00010-CR-4-RH

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

      versus

AARON JONATHON HOLT,

                                                        Defendant-Appellant.

                        __________________________

               Appeal from the United States District Court for the
                          Northern District of Florida
                         _________________________

                                (June 23, 2005)

Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Randolph P. Murrell, appointed counsel for Aaron Jonathon Holt, has filed a

motion to withdraw on appeal supported by a brief prepared pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent

review of the entire record reveals that counsel’s assessment of the relative merit of

the appeal is correct. Because independent examination of the entire record reveals

no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Holt’s

conviction and sentence are AFFIRMED.

                                          2


                 United States Court of Appeals,

                            Fifth Circuit.

                      Nos. 93-3873, 93-3877.

          UNITED STATES of America, Plaintiff-Appellee,

                                  v.

             Sylvester TOLLIVER, et al., Defendants,

   Noah Moore, Jr., Glenn Metz, and Shane Sterling, Defendants-
Appellants.

                            June 11, 1997.

Appeals from the United States District Court for the Eastern
District of Louisiana.

         ON REMAND FROM THE UNITED STATES SUPREME COURT

Before LAY,1 DUHÉ and DeMOSS, Circuit Judges.

     DUHÉ, Circuit Judge:

     Defendants were convicted of federal drug offenses arising

from a narcotics conspiracy and gang war in New Orleans, Louisiana.

Six of these eight Defendants, viz., Gennero Arthur, Gerald Elwood,

Marlo Helmstetter, Glenn Metz, Noah Moore, Jr., and Shane Sterling,

were also convicted of violating 18 U.S.C. § 924(c)(1), which

punishes any person who uses or carries a firearm during and in

relation to any drug trafficking crime.         In United States v.

Tolliver, 61 F.3d 1189 (5th Cir.1995), we, inter alia, affirmed

Defendants' firearms convictions.      We revisit this case today on

remand from the Supreme Court to determine whether Defendants'

firearms convictions survive Bailey v. United States, --- U.S. ----

, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).     For reasons that follow,

     1
      Circuit Judge of the Eighth Circuit, sitting by
designation.
we affirm in part, vacate in part, and reverse and remand in part.

                               BACKGROUND

     Arthur, Elwood, Helmstetter, Moore, and Sterling each occupied

the positions of gunman, enforcer, and firearms procurer/storer in

the Metz Organization.       Metz led this drug organization.         Their

firearms convictions are based upon the following facts:               (1)

Arthur was convicted for possession of a loaded Mac 11 9 mm. pistol

and a loaded Mini 14 .223 caliber assault rifle, both recovered

from his vehicle after a police chase (count 13);           (2) Metz was

convicted for his vehicular possession of two loaded semi-automatic

.380 pistols   (count   14);     (3)   Helmstetter   was   convicted    for

possession of a 9 mm. semi-automatic pistol incident to his arrest

(count 15);    (4) Elwood was convicted for possession of two .38

caliber revolvers, three rifles, and a semi-automatic pistol, all

recovered during two searches of his residence (counts 16 and 17);

(5) Sterling was convicted for (a) possession of several loaded

firearms, including two semi-automatic pistols and two assault

rifles,   several   loaded     high-capacity   magazines,     and     extra

ammunition—all recovered in the apartment he shared with Moore and

all in proximity to drug paraphernalia, drug records, and receipts

indicating Sterling's ownership of certain of the firearms, and (b)

his act of reaching for a nearby loaded .40 caliber semi-automatic

pistol when federal agents entered his room (count 22);2            and (6)

Moore was convicted for possession of several loaded firearms,

     2
      Sterling was indicted on three firearms counts (counts 20,
21, and 22) in the superseding indictment. Pursuant to an
earlier ruling by this Court, however, counts 20 and 21 were
dismissed.
including    a   loaded   drum     magazine     capable   of   providing      rapid

firepower of ninety additional rounds, found in proximity to drug

records and other drug paraphernalia in his apartment. (count 22).

Drugs were not found on or near these Defendants contemporaneously

with the seizure of these firearms.

     In Tolliver, 61 F.3d at 1218, we affirmed Defendants' firearms

convictions based upon these facts.                The Supreme Court granted

Sterling's and Moore's subsequent petitions for writ of certiorari,

vacated   the    judgments    on    their   §     924(c)(1)    convictions,     and

remanded to this Court for further consideration in light of

Bailey.     Pursuant to Bailey, Metz moved this Court to recall the

mandate   in     his   case   to   allow    his    contest     of   his    firearms

conviction.      Arthur, Elwood, and Helmstetter did not petition for

certiorari, and this Court's mandate therefore issued as to them.

They have neither requested recall of the mandate nor made any

other request for relief.

                                   DISCUSSION

                                        I

      Before reaching the merits, we must first consider Metz's

motion to recall the mandate.          Metz contends that our disposition

of his firearms conviction directly conflicts with the Supreme

Court's subsequent decision in Bailey v. United States, --- U.S. --

--, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).             We agree, as discussed

in Part II below, and thus order the mandate recalled.

      Our authority to recall our own mandate is clear.                   Under Rule

41.2 of the Fifth Circuit Rules, we may recall our mandate if

necessary in order to prevent injustice.               An example of such an
injustice is when a subsequent decision by the Supreme Court

renders a previous appellate decision demonstrably wrong.             See,

e.g., Greater Boston Television Corp. v. F.C.C., 463 F.2d 268, 278

n. 12 (D.C.Cir.1971).         Bailey squarely fits this description.

Recalling the mandate is also appropriate "where there is a danger

of incongruent results in cases pending at the same time."             See

American Iron & Steel Inst. v. Environmental Protection Agency, 560

F.2d 589, 594 (3d Cir.1977);        see also Greater Boston, 463 F.2d at

278-79.   Failure to recall the mandate as to Metz would result in

such incongruity.       This Court's opinion in Gradsky v. United

States,   376   F.2d   993,   995   (5th   Cir.1967),   which   presents    a

procedural posture analogous to our own, is instructive.                   In

Gradsky, this Court was faced with nine codefendants, five of whom

petitioned the Supreme Court for writs of certiorari, were granted

writs, and to whom the mandate was stayed, and four of whom failed

to seek further review and as to whom mandate issued.3               "[T]o

prevent injustice, this Court, on motion to recall by three of the

four non-peitioning defendants, recalled its mandate to allow them

to join in the proceedings after their co-defendants obtained a

remand. Id. Guided by these authorities, we are convinced that

recalling the mandate as to Metz is appropriate and in the interest

     3
      One of these four defendants either petitioned the Supreme
Court nor moved this Court to recall its mandate. As to her,
this Court declined to recall its mandate, noting that the her
failure to appear properly before the court was evidence of her
lack of "interest in participating in th[e] proceeding."
Gradsky, 376 F.2d at 995 n. 1. Accordingly, this Court did not
grant her any relief.
of justice, do so today.4

                                       II

          Section   924(c)(1)   penalizes       "[w]hoever,   during    and   in

relation to any ... drug trafficking crime ... uses or carries a

firearm."     In Bailey, the Supreme Court addressed only the "use"

prong of this text, leaving the remainder of the section untouched.

As   to "use,"      Bailey   held   that    §   924(c)(1)   requires   evidence

"sufficient to show an active employment of the firearm by the

defendant, a use that makes the firearm an operative factor in

relation to the predicate offense."             Id. at ----, 116 S.Ct. at 505

(emphasis added).      A defendant is culpable under § 924(c)(1), the

      4
      We are equally convinced that we should not recall sua
sponte our mandate as to Arthur, Elwood, and Helmstetter. These
three neither petitioned the Supreme Court for writs of
certiorari nor moved this Court to recall its mandate. As was
true of the non-petitioning, non-moving defendant in Gradsky, 376
F.2d at 995 n. 1, see supra note 3, these Defendants "ha[ve]
shown no interest in participating in this proceeding" and are
thus not properly before us. We are therefore unable to address
their firearms convictions. As a court of error, we have
jurisdiction over only those parties who seek relief. See United
States v. Johnson, 718 F.2d 1317, 1325 n. 23 (5th Cir.1983) (en
banc ), cited in United States v. Coscarelli, 105 F.3d 984, 995
(5th Cir.1997) (Jones, J., dissenting).

           This does not suggest that this Court lacks authority
      to act sua sponte on all matters. Where a party evinces
      interest in judicial review, this Court has authority to
      act. See, e.g., Reeves v. International Tel. & Tel. Corp.,
      705 F.2d 750, 752-53 (5th Cir.1983) (per curiam) (acting sua
      sponte to modify original mandate where interest was omitted
      in final judgment and motion to recall mandate was not filed
      because party "did promptly seek a judicial determination of
      the interest question" albeit in district court); cf.
      Leroy v. City of Houston, 906 F.2d 1068, 1075 (5th Cir.1990)
      (noting that it treats appellate request for prejudgment
      interest as authority "to sua sponte recall our earlier
      mandate where we deemed that required in the interests of
      justice," but declining to do so where, as here, plaintiffs,
      who were experienced attorneys representing themselves,
      "adamantly refused to file a motion to recall the mandate").
Court emphasized, "only [in] cases of actual use, not intended use,

as when an offender places a firearm with the intent to use it

later if necessary."       Id. at ----, 116 S.Ct. at 507             Examples of

"use" include "brandishing, displaying, bartering, striking with,

and most obviously, firing, or attempting to fire, a firearm." Id.

at ----, 116 S.Ct. at 508.

     Bailey 's "active employment" requirement clearly overrules

our pre-Bailey    precedent     upon     which   we   had   relied    to    affirm

Defendants' firearms convictions.            This precedent held that to

convict under § 924(c)(1), the Government need show only that the

defendants possessed the firearms in question.              See United States

v. Blake, 941 F.2d 334, 342 (5th Cir.1991) (holding that evidence

demonstrating " "that the weapon involved could have been used to

protect, facilitate, or have the potential of facilitating the

operation, and [that] the presence of the weapon was in some way

connected with the drug trafficking' " is sufficient to sustain a

§ 924(c)(1) conviction), quoted in Tolliver, 61 F.3d at 1218.                   In

contrast, Bailey emphasizes that the mere possession of firearms

for the protection of or to embolden an offender is not enough to

constitute "use" under § 924(c)(1).          See Bailey, --- U.S. at ----,

116 S.Ct. at 508 (emphasizing that the inert presence of a firearm,

without more, cannot trigger § 924(c)(1) culpability).

     We   turn    now     to   examine     whether    Defendants'        firearms

convictions survive Bailey.

                                       A

      Sterling concedes that his act of reaching for his pistol in

self-protection    when    federal     agents    stormed    into   his     bedroom
constitutes a "use" of the gun within the post-Bailey meaning of §

924(c)(1).     Sterling insists, however, that such action does not

constitute use "in relation to" a drug trafficking crime.5            We are

not persuaded.

         Whether Sterling's use of the loaded pistol during the raid

was "in relation to" the underlying drug conspiracy is a mixed

question of law and fact.        We defer to the jury's factual findings

on this issue unless clearly erroneous. The ultimate determination

of whether § 924(c)(1) is satisfied, however, is a question of law

for this Court to decide.        See United States v. Muniz-Melchor, 894

F.2d 1430, 1439 n. 9 (5th Cir.1990) (determining standard of review

for mixed question whether probable cause for warrantless search

existed).

         Bailey did not address the "in relation to" prong of §

924(c)(1).     The pre-Bailey interpretation of the "in relation to"

language therefore remains unaffected.              See United States v.

Richardson, 86 F.3d 1537, 1548 n. 5 (10th Cir.) (noting that the

"question of whether a weapon was used ... "during and in relation

to' a drug trafficking offense" is distinct from the pre-Bailey

"use" requirement that the firearm be an integral part of the

criminal undertaking), cert. denied, --- U.S. ----, 117 S.Ct. 588,

136 L.Ed.2d 517 (1996);          see also United States v. David, No.

96-1391,    1997   WL   26581,   at   *3   (10th   Cir.1997)   (unpublished)

     5
      Sterling does not contest that his "use" of the firearms
occurred "during" the predicate drug offense, here, drug
conspiracy. Nor could he, as the Government points out, because
Sterling's "use" of the loaded pistol occurred during the period
for which the conspiracy was charged, and found, to have existed.
See Tolliver, 61 F.3d at 1218.
(stating   "Bailey   did    not   affect   the   clearly    established    "in

relation to' element of § 924(c)(1)"), petition for cert. denied,

--- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ----, 65 USLW 3767 (U.S.

April 18, 1997).     In Smith v. United States, 508 U.S. 223, 237-38,

113 S.Ct. 2050, 2058-59, 124 L.Ed.2d 138 (1993), the Supreme Court

interpreted the phrase "in relation to," stating:

     The phrase "in relation to" is expansive, ... as the Courts of
     Appeals construing § 924(c)(1) have recognized. According to
     Webster's, "in relation to" means "with reference to" or "as
     regards." The phrase "in relation to" thus, at a minimum,
     clarifies that the firearm must have some purpose or effect
     with respect to the drug trafficking crime; its presence or
     involvement cannot be the result of accident or coincidence.
     As one court has observed, the "in relation to" language
     "allay[s] explicitly the concern that a person could be"
     punished under § 924(c)(1) for committing a drug trafficking
     offense "while in possession of a firearm" even though the
     firearm's presence is coincidental or entirely "unrelated" to
     the crime. Instead, the gun at least must "facilitat[e], or
     ha[ve] the potential of facilitating," the drug trafficking
     offense.

(citations omitted) (declining to determine precise contours of "in

relation to" requirement).        The phrase "in relation to" therefore

requires only that the firearm have played a role in the crime for

which the defendant is charged;            the firearm cannot have been

inadvertently   used   or    carried   "in    relation     to"   an   obviously

unrelated crime.     See United States v. Ocampo, 890 F.2d 1363, 1371

(7th Cir.1989) (citation omitted);           United States v. Stewart, 779

F.2d 538, 540 (9th Cir.1985), overruled on other grounds, 80 F.3d

1253 (9th Cir.1996).

     Sterling maintains that his gun use on the night of the raid

does not satisfy Smith, insisting that the firearm had no purpose

or effect with respect to the underlying drug conspiracy. Sterling

characterizes his act of reaching for the gun as one of "misguided
self-defense,"   not   one   "in   relation   to"   a    drug   conspiracy,

explaining that his instinct for self-protection compelled him to

reach for his gun when he was awakened in the middle of the night

by men in dark clothing.     He concludes that the firearm's presence

as to the drug conspiracy was therefore entirely coincidental. The

only crime, if any, to which his use of the firearm could relate,

Sterling contends, is assault of a federal officer—an offense, he

points out, with which he is not charged.

     Sterling, however, presented his "sleepy act of self-defense"

defense to the jury.   The jury rejected it, and this finding is not

clear error.   We agree with the Government that Sterling's use of

the pistol was "in relation to" the underlying drug conspiracy. As

noted above, the Supreme Court has explained that the phrase is

expansive and requires only that the firearm "have some purpose ...

with respect to the drug trafficking crime;              its presence or

involvement cannot be the result of accident or coincidence."

Smith, 508 U.S. at 237-38, 113 S.Ct. at 2059.              To satisfy the

statute, therefore, the firearm need only facilitate or have the

potential of facilitating the underlying drug trafficking offense.

Sterling's conduct satisfies this standard.             A jury could have

found that Sterling's use of the pistol was not accidental and that

the gun had the potential to facilitate the drug distribution

conspiracy of which Sterling is charged.             Indeed, present in

Sterling's apartment at the time of the raid were drug records, a

cache of assault weapons, and a co-conspirator, Defendant Moore,

with whom Sterling shared the apartment.            Accepting the jury's

factual findings, we conclude that Sterling's use of the gun was
"in relation to" the underlying drug conspiracy;            such use could

have facilitated that conspiracy by preventing the arrest of two

conspirators     and        forestalling   the    seizure     of    various

instrumentalities      of    the   conspiracy.6    We   therefore   affirm

Sterling's § 924(c)(1) conviction.

                                      B

         As to Metz, we invoke the concurrent sentence doctrine to

decline review of his firearms conviction.         To avoid any possible

adverse collateral consequences our decision may have, we vacate

     6
      Sterling argues that the lack of drugs in his apartment at
the time of the raid is fatal to this position. We disagree. In
United States v. Riascos-Suarez, 73 F.3d 616, 624 (6th Cir.),
cert. denied, --- U.S. ----, 117 S.Ct. 136, 136 L.Ed.2d 84
(1996), a post-Bailey case, the court approvingly cited a
pre-Bailey case, United States v. Edwards, 994 F.2d 417 (8th
Cir.1993), for the proposition that the "in relation to" element
of § 924(c)(1) does not require the presence of drugs in the
proximity of firearms for a valid gun conviction. In Edwards,
the defendant was convicted of conspiracy to distribute cocaine
and of using a firearm during and in relation to that conspiracy
in violation of § 924(c)(1) even though drugs were not found in
the vicinity of the firearms. In response to the defendant's
challenge to the validity of his gun conviction, the court
replied that the "[p]rotection of drug proceeds furthers a drug
trafficking crime, and use of a firearm to guard such proceeds
therefore violates § 924(c)." Edwards, 994 F.2d at 421.

          A post-Bailey case supports the same theory. In United
     States v. DeSantiago-Flores, 107 F.3d 1472, 1476 (10th
     Cir.1997), the court found § 924(c)(1) satisfied even in the
     absence of drugs. In DeSantiago-Flores, in exchange for
     forgiveness of a drug debt, the defendant had one of his
     customers bomb the home of another customer who was
     delinquent with her payment. The defendant was convicted
     under an aiding and abetting theory with violation of §
     924(c)(1) for using an incendiary bomb during and in
     relation to a drug trafficking crime. The defendant
     challenged his conviction, arguing that the evidence
     supported nothing more than an independent personal
     vendetta. The court rejected this argument, concluding that
     the defendant's attempt to intimidate his delinquent
     customer had the potential of facilitating the underlying
     drug conspiracy.
his firearms conviction and order that the fifty dollars special

assessment he was assessed on his firearms conviction be returned,

if such assessment has in fact been paid.            This Court has vacated

unreviewed convictions in similar situations in the past.                   See

United States v. Montemayor, 703 F.2d 109, 116 (5th Cir.1983).              As

we observed in that case, vacating an unreviewed conviction in no

way alters the jury's verdict or the conviction itself.                    "The

effect of this judicial action is to suspend imposition of the

sentences.      No need of the Government is impaired;          at the same

time,     no   possibility   of   adverse   collateral     consequences      to

defendants exists."      Id. (footnote omitted) (citing United States

v. Cardona, 650 F.2d 54, 58 (5th Cir.1981)).7

                                      C

     Moore was charged and convicted under both the "use" and

"carry" prongs of § 924(c)(1).            We therefore have occasion to

determine whether either prong may support his conviction.

         The facts underlying Moore's conviction do not show that

Moore actively employed firearms, as required by Bailey, --- U.S.

at ----, 116 S.Ct. at 507.        Accordingly, we hold that Moore cannot

be convicted under the "use" prong of § 924(c)(1).

         Nor can Moore be convicted under the "carry" prong.          As noted

above, Bailey did not address the "carry" prong of § 924(c)(1).

Prior    precedent   analyzing    this    language   is   therefore    "   "not

     7
      We note that Metz has been sentenced to life on other
counts; vacation of his firearms conviction would therefore make
no difference in the amount of time that he serves. We decline
to invoke the concurrent sentence doctrine as to Moore, however,
because our disposition of his firearms conviction would affect
the amount of time he would have to serve.
affected.' "    United States v. Rivas, 85 F.3d 193, 195 (5th Cir.)

(citation omitted), cert. denied, --- U.S. ----, 117 S.Ct. 593, 136

L.Ed.2d 521 (1996). Our "carry" jurisprudence holds that where, as

here, firearms are recovered outside of a vehicle context, "

"carrying' requires a showing that the gun was in reach during the

commission of the drug offense."     United States v. Pineda-Ortuno,

952 F.2d 98, 103 (5th Cir.1992);           see also United States v.

Blankenship, 923 F.2d 1110, 1116 (5th Cir.1991);          accord United

States v. Joseph, 892 F.2d 118, 126 (D.C.Cir.1989) (holding that

"carrying" requires proof that defendant "has a present ability to

exercise dominion and control over a firearm" and "has the firearm

within easy reach and available to protect him during his ongoing

[drug trafficking] offense" (internal quotation marks omitted)).

     There is no evidence to suggest that Moore "carried" firearms

within   this   meaning.   Rather,   the    record   reveals   only   that

authorities found the firearms underlying Moore's gun conviction

scattered throughout Moore's home;         the Government points to no

evidence indicating the firearms were within Moore's reach during

the commission of the predicate drug offense.         That Moore merely

possessed the firearms is insufficient to support a conviction

under the "carry" prong.   See United States v. Smith, 80 F.3d 215,

221 (7th Cir.1996) (concluding that defendant must do more than

possess or store weapon to be convicted of carrying firearm during

and in relation to drug offense);      United States v. Morris, 929

F.Supp. 993, 998 n. 2 (S.D.Miss.1996) (stating that "defendant

cannot be said to have carried guns that were not even in the same

room with the defendant and which were locked away in a closet.").
We therefore reverse Moore's firearms conviction and remand for

resentencing.

                           CONCLUSION

     For the foregoing reasons, we grant Metz's motion to recall

the mandate, and the judgment of the district court is AFFIRMED IN

PART, VACATED IN PART, and REVERSED AND REMANDED IN PART.


661 F.2d 943
U. S.v.Barber
80-1673
UNITED STATES COURT OF APPEALS Ninth Circuit
9/8/81

1
C.D.Cal.

AFFIRMED