815 F.2d 76
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.In Re BRYN MAWR APARTMENTS OF YPSILANTI, LTD., a MichiganLimited Partnership, Debtor,James McTEVIA, Trustee of Bryn Mawr Apartments of Ypsilanti,LTD., a Michigan Limited Partnership, Plaintiff-Appellee,v.Thomas CAPE, Edward Jensen, Bryn Mawr of Marshall,Defendants-Appellants.
No. 85-1975.
United States Court of Appeals, Sixth Circuit.
Feb. 27, 1987.

Before LIVELY, Chief Judge and JONES and GUY, Circuit Judges.
PER CURIAM.

1
Defendants appeal the district court's denial of their motions to reinstate appeal and requesting stay of proceedings.  Because we do not believe that the district court abused its discretion in dismissing the appeal for want of prosecution, we affirm its denial of the motions.

2
In 1979, Bryn Mawr Apartments of Ypsilanti, Ltd. filed a voluntary Chapter 11 petition for bankruptcy.  Thomas Cape was appointed debtor-in-possession by the bankruptcy court.  As debtor-in-possession, Cape was restricted by the bankruptcy court from making any payments other than those necessary for the day-to-day operation of the business.  In 1982, a court-appointed examiner determined that Cape had violated his duties as debtor-in-possession in the course of transferring estate funds to himself and others.  Consequently, the bankruptcy court appointed a trustee for the bankruptcy estate.  This trustee initiated an adversary proceeding against Cape and others, alleging that they had received voidable transfers from the estate.  Following a hearing, the bankruptcy court held that the defendants had received voidable transfers from the estate.  Following a hearing, the bankruptcy court held that the defendants had received voidable transfers, and ordered the defendants to return a total of $261,333.

3
Defendants filed a notice of appeal from the bankruptcy court's order on May 14, 1984.  The district court notified the attorneys that the records were received on August 6, 1984.  Under Bankruptcy Rule 8009(a)(1), the appellants then had fifteen days in which to file their brief.  When no brief or motion for extension of time for filing a brief had been filed by October 4, 1984, the appellee filed a motion to dismiss the appeal.  The district court set up a briefing schedule and an oral argument date for appellee's motion to dismiss.  The response to the motion was due by October 19, 1984, and argument was to be on October 29.  The order setting up this schedule stated that if the non-moving party failed to respond in some way by October 19, the motion to dismiss would be considered to be unopposed.  Although the district court's docket sheet does not reflect that a timely response was filed, the response brief date-stamped October 19 by the district court clerk's office has been filed with this court.  This brief explained that defendants had missed the August deadline due to confusion caused by substitution of counsel.  The docket sheet shows no decision on the October motion to dismiss.

4
On November 9, 1984, the appellants filed a motion for extension of time for filing an appellate brief.  The basis for this motion was that the court reporter had erased a portion of the trial testimony and appellants were unable to locate exhibits allegedly needed to reconstruct the missing testimony.  The parties stipulated on November 15, 1984, that the appellants would have fifteen days from the settlement of the record below to file their brief on appeal, and the district court entered an order in accordance with that agreement.

5
At some point before February 6, 1985, the district court appears to have asked the defendants/appellants to submit a status report regarding their efforts to reconstruct the record.  Appellants replied in a letter suggesting that they were having difficulties in obtaining the exhibits needed to reconstruct the erased testimony.  They intimated that the exhibits might never be located.

6
When nothing further had been submitted by appellants six months later, the district court, on August 2, 1985, sent out another briefing schedule and set a date for oral argument.  The appellants' brief was to be filed by August 19, 1985.  The order setting forth the schedule stated:

7
If the appellant does not file a brief in support of the appeal by the date specified above, or obtain from the court an extension of time within which to file said brief, after written motion and for just cause, the appeal shall be dismissed.

8
J.App. at 50.  Appellants contend that rather than filing the required motion for extension of time, they called the judge's law clerk on August 13 and were told that the briefing schedule would be vacated.  No order reflecting this alleged change was entered.  Appellants concede that the judge's law clerk called them back on August 16, but they allege that she only said something to the effect that appellants were mistaken in their belief that the next step was up to the parties.  The law clerk supposedly indicated that the district court would issue an order regarding the appeal in the next week, but she would not reveal what the order was.  Appellants appear to have done nothing in response to this rather mysterious conversation of August 16.

9
When nothing had been filed by appellants on August 19, the district court dismissed the appeal without prejudice for failure to prosecute.  The order of dismissal apparently went to appellants' former counsel.  Therefore, not knowing that their delay had already led to their appeal's dismissal, appellants filed on August 26 a motion to stay proceedings for substitution of counsel.  Upon learning that the appeal had been dismissed, appellants filed a motion to reinstate appeal and a motion for stay of proceedings.  A hearing was held, and the motions were denied.

10
We may review the district court's refusal to reinstate the appeal only for abuse of discretion.   See Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962).  In the case before us, the district court indicated that dismissal was based on undue delay in reconstructing the trial record and the consequent failure of appellants to meet the deadlines of the briefing schedules.  Appellants contend that the dismissal took place without notice and in the face of an order permitting them whatever time was necessary to reconstruct the record.  We disagree.

11
The district court dismissed the appeal pursuant to E.D.Mich.R.

12
Subject to the provisions of Rule 23(e) Federal Rules of Civil Procedure, in each cause pending wherein it appears that the Court lacks jurisdiction over the subject matter or that no action has been taken by a party for a reasonable period of time, the Court may, on its own motion or upon application of any party and after reasonable notice, enter an order dismissing such cause unless good cause for the inaction is given.

13
This local rule is not clear regarding the district court's duty to give notice before dismissing an action sua sponte.    However, even if notice is required, it was given in this case.  First, notice of the consequences of failure to file a brief was contained in the briefing schedule sent to the attorneys on August 2, 1985.  Moreover, the notice specified that the time for filing a brief could be extended only by "written motion."    Thus, even if the law clerk and the appellants had agreed over the phone to vacate the schedule, the appellants should have realized the necessity of filing a written motion to extend the time for filing their brief.  Reliance on an ex parte phone conversation with a judge's clerk is not justified.  Second, the order entered on August 19 dismissing appellant's appeal was without prejudice.  Thus, it was akin to a "show cause" order, allowing appellants to demonstrate in their motion to reinstate why they had failed to meet the briefing deadline.

14
Although the district court had in late 1984 allowed appellants time to reconstruct the record before they had to file their briefs, the scheduling order sent out in August 1985 was an indication that the court had given all the time it thought was necessary to reconstruct the record.  Thus, at that time appellants were obligated to proceed with or without every page of the trial transcript.

15
Appellants set forth a number of actions which they believe would have been more appropriate for the district court to take.  First, they should have had an opportunity to show cause for their delay.  Second, they could have been required to complete the reconstruction within a limited time.  Third, the appeal could have proceeded with the unreconstructed record.  These are indeed good suggestions, but the district court, in effect, did all three.  Appellants could have filed a motion to extend the time for briefing, setting forth their reasons for delay, but they failed to do so.  Moreover, they were afforded a hearing on their motion to reinstate.  By once again establishing a briefing schedule, the district court was indicating that appellants either must reconstruct the record by August 19 or the appeal would go forth on the unreconstructed record.  Instead, the appellants did nothing.

16
Altogether, we believe that the district court allowed appellants ample opportunity to reconstruct the record.  When appellants failed to reconstruct the record and ignored the judge's scheduling order, she acted within her discretion in dismissing the appeal.  Therefore, she acted appropriately in refusing to reinstate the appeal.

17
Accordingly, we AFFIRM the district court.


23 So.3d 1184 (2009)
GUZMAN
v.
CITY OF CLERMONT.
No. 1D09-3392.
District Court of Appeal of Florida, First District.
December 28, 2009.
Decision Without Published Opinion Affirmed.


398 F.3d 1021
Charles E. GOAD, Plaintiff-Appellant,v.Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
No. 04-1363.
United States Court of Appeals, Eighth Circuit.
Submitted: November 17, 2004.
Filed: February 17, 2005.

COPYRIGHT MATERIAL OMITTED Edward C. Olson, argued, Minneapolis, MN, for appellant.
Cynthia A. Brandel, argued, Asst. Regional Counsel, Social Security Admin., Chicago, IL, for appellee.
Before MURPHY, HANSEN, and MELLOY, Circuit Judges.
MELLOY, Circuit Judge.

1
Plaintiff-Appellant Charles E. Goad appeals the district court's denial of fees and costs under the Equal Access to Justice Act, codified in part at 28 U.S.C. § 2412(d) ("EAJA"). We vacate and remand to the district court for consideration of whether the Commissioner's position regarding the initial denial of benefits was substantially justified.

I.

2
Mr. Goad filed a claim for social security disability benefits on March 27, 1996, alleging disability prospectively as of March 29, 1996. Mr. Goad's alleged disability related to various cardiovascular ailments including persistent angina. On November 18, 1997, an administrative law judge ("ALJ") denied Mr. Goad's claim, finding that he was not disabled and that he retained the residual functional capacity to perform available work in the light exertional range. The Appeals Council considered additional evidence, but ultimately denied Mr. Goad's request for further review, making the ALJ's decision the Commissioner's final decision. Mr. Goad appealed to the district court.

3
On July 28, 2000, Mr. Goad filed a second claim for benefits. In the second claim, he alleged a disability onset date of November 19, 1997. In March 2001, the Commissioner ruled in favor of Mr. Goad on the second claim, finding him disabled as of November 19, 1997.

4
On September 30, 2001, the district court remanded the first claim to the Commissioner. The district court found that the Commissioner had failed to adequately develop the administrative record. The district court stated that it was troubled by evidence that suggested Mr. Goad suffered from non-exertional angina which "could alter the ALJ's residual functional capacity determination, hypothetical to the vocational expert, and ultimate disability determination." The district court also found the Commissioner should consider certain additional evidence on remand. Mr. Goad did not make the district court aware of the second claim or the grant of benefits on the second claim.

5
On December 11, 2001, Mr. Goad filed a motion with the district court for attorneys' fees and costs under the EAJA for legal work related to the district court action involving the first claim. On January 23, 2003, a United States Magistrate Judge issued a report and recommendation in which she found that Mr. Goad was entitled to attorneys' fees under the EAJA. She assessed the merits of the Commissioner's position on the denial of benefits under the first claim and found that position not substantially justified.

6
The remanded disability claim apparently languished for some time. Ultimately, the Commissioner set an April 9, 2003 hearing to reconsider the remanded claim. The Notice of Hearing stated that the issues to be considered included not only the limited issue of whether Mr. Goad was disabled and entitled to benefits for the period between March 29, 1996 (as alleged in the first claim) and November 19, 1997 (as determined by the Commissioner on the second claim), but also the issue of whether he was entitled to continue receiving benefits at all, i.e., whether he was entitled to continue receiving benefits in accordance with the existing award on his second claim.

7
On April 2, 2003, Mr. Goad notified the Commissioner that he had decided to drop the first claim and no longer desired the hearing. Shortly thereafter, on April 23, 2003, an ALJ issued an opinion on the remanded and abandoned, first claim, stating that Mr. Goad's election to withdraw the claim implied that "[Mr. Goad] now agrees with the hearing decision of November 18, 1997 ... that he was not disabled as of that date." The ALJ also stated that the question of whether Mr. Goad became disabled prior to November 19, 1997 was moot, and further administrative proceedings were unnecessary. The ALJ proceeded to adopt the Commissioner's original decision — the November 18, 1997 decision that the district court had rejected — and found that Mr. Goad was not disabled as of March 29, 1996. Mr. Goad neither appealed the ALJ's April 23, 2003 ruling nor notified the district court of the ruling and his withdrawal of the remanded claim.

8
As of April 23, 2003, the district court had not ruled on the Commissioner's objections to the Magistrate Judge's recommendation to grant EAJA fees to Mr. Goad. On an ex parte basis, counsel for the Commissioner provided the district court with a copy of the April 23, 2003 ruling and notified the district court that Mr. Goad had withdrawn the remanded claim. Subsequently, on August 14, 2003, the district court rejected the Magistrate Judge's January 23, 2003 Report and Recommendation and ruled that Mr. Goad was not entitled to attorneys' fees. The district court held that, although Mr. Goad was a prevailing party due to the remand order from the initial district court proceedings, the Commissioner was "substantially justified" in her losing position. In explaining this result, the district court provided no comments regarding the merits of the Commissioner's decision, but noted only the facts that Mr. Goad withdrew his initial claim for benefits and failed to appeal the ALJ's April 23, 2003 ruling. The district court stated that these actions by Mr. Goad made "it ... abundantly clear that `at least one permissible view of the evidence' shows a reasonable basis in law and fact for the Commissioner's decision to deny benefits." (Internal citation omitted).

9
Mr. Goad then moved to alter or amend the district court's judgment on the fee issue. Mr. Goad argued that the district court improperly relied on information outside the district court's record — the withdrawal of the claim following remand and the administrative law judge's opinion on remand. He argued further that reliance on such information comprised a due process violation, and that if he had received notice that the district court was going to consider such information, he would have presented affidavits to explain why he dropped the first claim on remand.

10
The district court refused to amend the judgment. In an order dated February 4, 2004, the district court again stated that when Mr. Goad withdrew his first claim, he conceded the issue of disability regarding the earlier date of March 29, 1996. The district court stated that reliance on information known to Mr. Goad but outside the record was not a due process violation because, "[a] plaintiff who failed to supply the Court with information relevant to the matter pending cannot later be heard to complain of a violation of due process rights when the Court is made aware of such information. [Mr. Goad's] failure to supply known and relevant information in a timely fashion waives his opportunity to explain that information at a later date."

11
Mr. Goad appeals to our court. He argues on appeal that the Commissioner was not substantially justified in the initial denial of benefits that led to the initial appeal in the district court. He also argues that the district court should not have relied on his withdrawal of the first claim following remand and the ALJ's subsequent ruling because (1) these matters were not in the record before the district court, (2) they were provided to the court on en ex parte basis, and (3) his decision to withdraw the first claim did not necessarily constitute a concession as to the validity of the Commissioner's position on that claim. Mr. Goad characterizes his decision to drop the first claim as a strategic, risk-benefit decision based on the fact that his benefits under the second claim would have been subject to review, and therefore placed potentially at risk, had he followed through with the April 9, 2003 administrative hearing. Ultimately, Mr. Goad argues that the district court should have considered only the merits of the first claim as reflected in the record that existed at the time of the district court's remand order, September 30, 2001.

II.

12
We review a district court's decision to deny a fee request under the EAJA for abuse of discretion. Pierce v. Underwood, 487 U.S. 552, 562, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); Yarbrough v. Cuomo, 209 F.3d 700, 703 (8th Cir.2000). Although a social security claimant may be a prevailing party for purposes of the EAJA, a fee award under the EAJA is not available unless the Commissioner lacked substantial justification for her position. 28 U.S.C. § 2412(d)(1)(A). A position enjoys substantial justification if it has a clearly reasonable basis in law and fact. Brouwers v. Bowen, 823 F.2d 273, 275 (8th Cir.1987). Accordingly, the Commissioner can advance a losing position in the district court and still avoid the imposition of a fee award as long as the Commissioner's position had a reasonable basis in law and fact. Id. Further, a loss on the merits by the Commissioner does not give rise to a presumption that she lacked substantial justification for her position. Keasler v. United States, 766 F.2d 1227, 1231 (8th Cir.1985). The Commissioner does, however, at all times bear the burden to prove substantial justification. Id.

13
During oral arguments in this case, the Commissioner conceded the impropriety of her ex parte communication concerning Mr. Goad's withdrawn claim. As noted above, withdrawal of the remanded claim may or may not have been related to the merits of the Commissioner's position in the prior litigation. We believe then, that at a minimum, reliance on the ex parte communication improperly deprived Mr. Goad of the opportunity to explain his reasons for withdrawal. Also, we note that because it was the Commissioner's burden to prove substantial justification, Mr. Goad was under no duty to supplement the record by notifying the district court of the outcome on remand. Accordingly, his failure to do so cannot serve as a waiver of his right to rebut evidence presented by the Commissioner.

14
We reverse the judgment of the district court and remand for consideration of whether the Commissioner proved substantial justification. We express no opinion as to whether the Commissioner's position in the prior litigation enjoyed a reasonable basis in law and fact.


190 F.Supp.2d 29 (2002)
JUDICIAL WATCH, INC., Plaintiff,
v.
FEDERAL BUREAU of INVESTIGATION, Defendant.
No. Civ.A.01-0248 (RMU).
United States District Court, District of Columbia.
March 21, 2002.
*30 Larry Klayman, Judicial Watch, Inc., Washington, DC, for plaintiffs.
Lisa Barsoomian, Assistant U.S. Attorney, Washington, DC, for defendants.

MEMORANDUM OPINION
URBINA, District Judge.

GRANTING THE DEFENDANT'S MOTION TO DISMISS

I. INTRODUCTION
Implicating constitutional issues courts rarely addressed only a decade ago, this case involves technology that would allegedly allow the Federal Bureau of Investigation ("FBI" or "the defendant") to "wiretap" the Internet. Judicial Watch, Inc. ("the plaintiff") brings this action against the FBI[1] for an alleged failure to comply with the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The alleged violation stems from the defendant's refusal to respond to the plaintiff's FOIA request for documents related to the FBI's automated system called "Carnivore." The plaintiff seeks declaratory and injunctive relief under FOIA. The defendant moves to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) based on the plaintiff's failure to exhaust administrative remedies, and thus for lack of subject-matter *31 jurisdiction, and failure to state a claim on which relief can be granted. For the reasons that follow, the court will grant the defendant's motion to dismiss.

II. BACKGROUND
On July 15, 2000, Judicial Watch sent a FOIA request via fax and certified mail to the defendant requesting certain records related to Carnivore. See Compl. at 2 & Ex. 1; Def.'s Mot. to Dismiss ("Mot. to Dismiss") at 1 & Ex. 1. Known as a "packet sniffer," Carnivore analyzes data flowing through computer networks, allowing law enforcement officials to monitor e-mail messages of criminal suspects. See Compl. Ex. 1. Civil liberties groups are interested in Carnivore because of the potential Fourth Amendment search and seizure concerns the system allegedly raises. See id. Judicial Watch claims that Carnivore allows the FBI to "wiretap" the Internet. See Compl. at 2.
The FBI responded in a letter to Judicial Watch dated July 21, 2000, acknowledging receipt of Judicial Watch's request and assigning it a Freedom of Information-Privacy Acts ("FOIPA") number. See Mot. to Dismiss at 1, Ex. 1; Pl.'s Opp'n to Def.'s Mot. ("Pl.'s Opp'n") at 3. The July 21, 2000 letter advised Judicial Watch that the defendant had been experiencing processing delays and would process its request as soon as possible. See Mot. to Dismiss Ex. 1.
In a letter to Judicial Watch dated August 17, 2000, the defendant stated that approximately 3,000 pages[2] of material responsive to Judicial Watch's FOIA request had been located and that interim releases of information would begin in about 45 days. See Mot. to Dismiss at 1, Ex. 1; Pl.'s Opp'n at 3-4. The August 17, 2000 letter denied Judicial Watch's request for a fee waiver[3] and requested that Judicial Watch indicate in writing its willingness to pay the initial processing fee of approximately $290.00. See Mot. to Dismiss at 1-2, Ex. 1; Pl.'s Opp'n at 4. The August 17, 2000 letter did not advise Judicial Watch of its right to appeal the decision to the head of the agency pursuant to 5 U.S.C. § 552(a)(6)(A)(i). See Pl.'s Opp'n at 4.
On October 2, 2000, the defendant sent Judicial Watch 565 pages of material responsive to its FOIA request.[4]See Mot. to Dismiss at 2, Ex. 1. Judicial Watch claims that it never received these documents. See Compl. at 2; Pl.'s Opp'n at 4. Judicial Watch did not pay the $46.50 duplication fee requested in the August 17, 2000 letter, nor did it provide a written willingness to pay for the remaining pages. See Mot. to Dismiss at 2.
On February 1, 2001, Judicial Watch filed its complaint in this court. The defendant filed a motion to dismiss on March 19, 2001 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). On April 2, 2001, Judicial Watch filed an opposition to the defendant's motion to dismiss, in which it agreed to pay the $290.00 duplication fee if the defendant produced the rest of the documents without delay. See Pl.'s Opp'n at 5.
*32 For the reasons that follow, the court agrees with the defendant that this court lacks subject-matter jurisdiction because the plaintiff has failed to exhaust its administrative remedies. Accordingly, the court will grant the defendant's motion to dismiss.

III. ANALYSIS

A. Legal Standard for a Motion to Dismiss
On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has jurisdiction. See District of Columbia Retirement Bd. v. United States, 657 F.Supp. 428, 431 (D.D.C.1987). In evaluating whether subject-matter jurisdiction exists, the court must accept all the complaint's well-pled factual allegations as true and draw all reasonable inferences in the plaintiff's favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overturned on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The court need not, however, accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations. See, e.g., Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990).
Moreover, the court need not limit itself to the allegations of the complaint. See Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds by 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, the court may consider such materials outside the pleadings as it deems appropriate to determine whether it has jurisdiction in the case. See Herbert v. National Acad. of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992).
For a complaint to survive a Rule 12(b)(6) motion to dismiss, it need only provide a short and plain statement of the claim and the grounds on which it rests. See FED.R.CIV.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss under Rule 12(b)(6) tests not whether the plaintiff will prevail on the merits, but instead whether the plaintiff has properly stated a claim. See FED.R.CIV.P. 12(b)(6); Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. The plaintiff need not plead the elements of a prima-facie case in the complaint. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C.Cir.2000); see also Swierkiewicz v. Sorema N.A., ____ U.S. ____, 122 S.Ct. 992, ____ L.Ed.2d ____ (2002) (holding that a plaintiff in an employment-discrimination case need not establish her prima-facie case in the complaint). Thus, the court may dismiss a complaint for failure to state a claim only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Atchinson v. District of Columbia, 73 F.3d 418, 422 (D.C.Cir.1996). In deciding such a motion, the court must accept all the complaint's well-pled factual allegations as true and draw all reasonable inferences in the nonmovant's favor. See Scheuer, 416 U.S. at 236, 94 S.Ct. 1683.

B. The Plaintiff Has Failed to Exhaust its Administrative Remedies
FOIA requires a plaintiff to exhaust its administrative remedies before seeking judicial review of a FOIA request. See 5 U.S.C. § 552(a)(6)(A)(i)-(ii). The agency receiving a plaintiff's FOIA request must determine within 20 days whether it will comply with the request and "notify the person making such request ... of the right of such person to appeal to the head of the agency any adverse determination." 5 U.S.C. § 552(a)(6)(A)(i). To exhaust its administrative remedies, the party making the FOIA request must first appeal to the *33 head of the agency.[5]See Thomas v. Office of U.S. Attorney for the Eastern Dist. of New York, 171 F.R.D. 53 (E.D.N.Y.1997). A plaintiff's failure to exhaust administrative remedies precludes a federal court from exercising subject-matter jurisdiction over the party's FOIA claims. See id. "The exhaustion requirement ... allows the top managers of an agency to correct mistakes made at lower levels and thereby obviates unnecessary judicial review." Oglesby v. United States Dep't of the Army, 920 F.2d 57, 61 (D.C.Cir.1990).
The plaintiff argues that it has exhausted its administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C), which states that exhaustion occurs if the agency fails to respond to a party's FOIA request within the 20-day response period set forth in 5 U.S.C. § 552(a)(6)(A)(i).[6]See Compl. at 2. According to the plaintiff, the defendant's July 21, 2000 letter did not constitute a proper response under 5 U.S.C. § 552(a)(6)(A)(i) because it was only an acknowledgment of receipt and did not advise the plaintiff of its right to appeal. See Pl.'s Opp'n at 3.
The court deems the plaintiff's constructive exhaustion argument irrelevant, however, for two reasons. First, the plaintiff never paid the fees imposed by the defendant. The D.C. Circuit has held that failure to pay FOIA fees constitutes a failure to exhaust administrative remedies. See Oglesby, 920 F.2d at 66 (stating that "[e]xhaustion does not occur until the required fees are paid or an appeal is taken from the refusal to waive fees"); see also Crooker v. United States Secret Serv., 577 F.Supp. 1218, 1220 (D.D.C.1983) (granting the defendant's motion to dismiss because the plaintiff failed to respond to or appeal the defendant's request for payment).
Second, the plaintiff filed suit after the defendant had already responded to its request. Once an agency has responded to the request, regardless of whether the response is timely under 5 U.S.C. § 552(a)(6)(C), the requestor can seek judicial review only after appealing to the agency first. See Oglesby, 920 F.2d at 61; McCall v. U.S. Marshals Service, 36 F.Supp.2d 3, 5 (D.D.C.1999) (holding that a "FOIA plaintiff's option to proceed to court without pursuing an ... administrative appeal terminates when the agency responds before the plaintiff goes to court"). Thus, the court does not need to consider whether the defendant's July 21, 2000 letter was an adequate response under 5 U.S.C. § 552(a)(6)(A)(i) because the defendant sent additional letters dated August 17, 2000 and October 2, 2000 before the plaintiff filed suit. See Oglesby, 920 F.2d at 69; Mot. to Dismiss Ex. 1.
The court concludes that the plaintiff has failed to exhaust its administrative remedies. Accordingly, the court lacks subject-matter jurisdiction under Rule 12(b)(1) and the court need not address the defendant's argument pursuant to 12(b)(6).[7]

IV. CONCLUSION
For all these reasons, the court grants the defendant's motion to dismiss. An order directing the parties in a manner consistent with this Memorandum Opinion *34 is separately and contemporaneously issued this 21 day of March, 2002.

ORDER

GRANTING THE DEFENDANT'S MOTION TO DISMISS
For the reasons stated in this court's Memorandum Opinion separately and contemporaneously issued this ______ day of March, 2002, it is
ORDERED that the defendants' motion to dismiss is GRANTED.
SO ORDERED.
NOTES
[1]  The defendant correctly notes that the proper defendant under the Freedom of Information Act is the United States Department of Justice ("DOJ") as the "agency," rather than the FBI, which is a component of DOJ and therefore not an "agency" within the statutory definition. See 5 U.S.C. §§ 552(a)(4)(B), 552(f)(1).
[2]  The page count was later changed to 1,957 pages. See Mot. to Dismiss at 1.
[3]  Under 5 U.S.C. § 552(a)(4)(A)(iii), a fee waiver may be granted "if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii).
[4]  This letter also advised Judicial Watch that $46.50 was due for the first release of documents and it provided instructions on how Judicial Watch could administratively appeal any denial contained in the letter. See Mot. to Dismiss Ex. 1.
[5]  In this case, the plaintiff must administratively appeal any denial of its request to the Office of Information and Privacy at DOJ. See Mot. to Dismiss at 4.
[6]  This is often referred to as "constructive" exhaustion. See, e.g., Oglesby, 920 F.2d at 62.
[7]  Because the court lacks subject-matter jurisdiction, the court also declines to take any position on the plaintiff's newly stated willingness to pay the defendant's processing fee.


395 F.3d 1064
Donald BEARDSLEE, Plaintiff-Appellant,v.Jeanne S. WOODFORD, Director of the California Department of Corrections; Jill L. Brown, Warden, California State Prison at San Quentin, Defendants-Appellees.
No. 05-15042.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted January 12, 2005.
Filed January 14, 2005.
As Amended on Denial of Rehearing and Rehearing En Banc January 15, 2005.

COPYRIGHT MATERIAL OMITTED Steven S. Lubliner, Petaluma, CA, for the petitioner-appellant.
Dane R. Gillette, Senior Assistant Attorney General, Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Ronald S. Matthias, Supervising Deputy Attorney General, San Francisco, CA, for the defendant-appellees.
Alan L. Schlosser, San Francisco, CA, for amici curiae American Civil Liberties Union Foundation of Northern California and Death Penalty Focus.
Stephen F. Rhode, Los Angeles, CA, of counsel for amici curiae Death Penalty Focus.
Appeal from the United States District Court for the Northern District of California; Jeremy Fogel, District Judge, Presiding. D.C. No. CV-04-5381-JF.
Before TASHIMA, THOMAS, and PAEZ, Circuit Judges.
PER CURIAM.

1
Donald Beardslee, a California death row inmate whose execution is scheduled for Wednesday, January 19, 2004, at 12:01 a.m., appeals the district court's order denying his motion for a preliminary injunction in his action pursuant to 42 U.S.C. § 1983 against Jeanne S. Woodford, Director of the California Department of Corrections, and Jill L. Brown, Warden of California State Prison at San Quentin, California (collectively, "the State"). Beardslee seeks to prevent Brown from executing him in accordance with California's lethal injection protocol, arguing that such an execution would violate his Eighth Amendment right to be free from cruel and unusual punishment and, potentially, his First Amendment right to freedom of speech. Beardslee also makes an emergency motion for a stay of execution.1 We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm the district court and deny the motion.

2
* Beardslee was convicted by a jury in San Mateo County, California of two counts of first degree murder with special circumstances and sentenced to death. The California Supreme Court affirmed his conviction and sentence. People v. Beardslee, 53 Cal.3d 68, 279 Cal.Rptr. 276, 806 P.2d 1311 (1991). After exhausting his state court remedies, Beardslee filed a habeas corpus petition in federal district court. The district court rejected each of his claims, including his challenge to California's method of execution, and dismissed the petition. Beardslee did not seek a Certificate of Appealability ("COA") as to his claim that California's method of execution violated the Eighth Amendment's prohibition against cruel and unusual punishment.

3
We affirmed the district court's denial of habeas relief, Beardslee v. Woodford, 358 F.3d 560 (9th Cir.2004), and the Supreme Court denied Beardslee's petition for a writ of certiorari, Beardslee v. Brown, ___ U.S. ___, 125 S.Ct. 281, 160 L.Ed.2d 68 (2004). After denial of certiorari, but before our mandate was issued, Beardslee requested, and we granted, an expanded COA based on a decision, Sanders v. Woodford, 373 F.3d 1054 (9th Cir.2004), that had been issued during the pendency of Beardslee's petition for a writ of certiorari. After briefing and oral argument, we issued a supplemental opinion denying federal habeas relief on December 29, 2004. Beardslee v. Brown, 393 F.3d 1032, 2004 WL 3019188 (9th Cir. Dec.29, 2004). No COA was issued during the federal appellate habeas proceedings for Beardslee's claim pertaining to the method of execution.

4
On December 20, 2004, Beardslee filed this § 1983 suit in federal district court challenging California's lethal injection protocol. He also moved the court for a temporary restraining order and a preliminary injunction enjoining the State from executing him using the existing lethal injection procedure. On January 7, 2005, the district court denied the motion for a temporary restraining order, denied the motion for a preliminary injunction, and denied the motion for expedited discovery as moot. Beardslee appeals the denial of injunctive relief.

5
In order to obtain a preliminary injunction on his claim, Beardslee was required to demonstrate "(1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to the plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases)." Johnson v. Cal. State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir.1995) (internal quotation marks and citation omitted). Alternatively, injunctive relief could be granted if he "demonstrate[d] `either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor.'" Id. (citation omitted). "These two alternatives represent `extremes of a single continuum,' rather than two separate tests." Clear Channel Outdoor Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir.2003) (citation omitted). Thus, the greater the relative hardship to the party seeking the preliminary injunction, the less probability of success must be established by the party. Id. "In cases where the public interest is involved, the district court must also examine whether the public interest favors the plaintiff." Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir.1992); see also Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir.1988).

6
In capital cases, the Supreme Court has instructed that "[e]quity must take into consideration the State's strong interest in proceeding with its judgment." Gomez v. U.S. Dist. Court for N. Dist. of California, 503 U.S. 653, 654, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992). In such cases, "[a] court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief." Id. Thus, before granting a stay of execution, courts "must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim." Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2126, 158 L.Ed.2d 924 (2004).

7
We review the denial of a preliminary injunction for an abuse of discretion. Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir.1999). "Our review is limited and deferential." Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.2003) (en banc).2

II

8
The State contends that Beardslee is not entitled to relief because he previously litigated this claim in his federal habeas action. It is true that Beardslee asserted in his federal habeas petition a generic challenge to California's two statutory methods of execution, lethal gas and lethal injection. However, the claims asserted in this § 1983 suit are different. In this case, Beardslee challenges California's lethal injection protocol, rather than the punishment of lethal injection per se, as asserted in his habeas petition. The State has acknowledged that a § 1983 action is a proper vehicle by which to challenge a method of execution, noting that such a challenge was entertained in Cooper v. Rimmer, 379 F.3d 1029 (9th Cir.2004) and Fierro v. Gomez, 77 F.3d 301 (9th Cir.), judgment vacated by 519 U.S. 918, 117 S.Ct. 285, 136 L.Ed.2d 204 (1996).3

9
Section 1983 provides the statutory authorization for most federal court suits against local governments or state and local government officials to redress violations of federal civil rights. To bring a § 1983 action, a plaintiff must allege (1) a violation of a right secured by the Constitution or federal law, and (2) that this right was violated by someone acting under color of state law. 42 U.S.C. § 1983. In the instant case, the plaintiff seeks review of the method by which the sentence will be carried out, rather than a review of the fact that he was sentenced to death. He asserts that the defendants, acting under color of state law, will violate his Eighth Amendment and First Amendment rights by their use of California's lethal injection protocol. Thus, Beardlee's claim is more properly considered as a "conditions of confinement" challenge, which is cognizable under § 1983, than as a challenge that would implicate the legality of his sentence, and thus be appropriate for federal habeas review. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir.1991) ("Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the `legality or duration' of confinement. A civil rights action, in contrast, is the proper method of challenging `conditions of ... confinement.'") (citation omitted) (revision in original). Therefore, Beardslee is not foreclosed from asserting this challenge in a § 1983 action even though he raised a challenge to the constitutionality of the statute authorizing legal injection in his federal habeas proceeding.4

III

10
Relying in large part on our decision in Cooper, the district court held that, because Beardslee did not file this action until his execution was scheduled, he was subject to a "strong equitable presumption against the grant of a stay [of execution]" unless he could "make a showing of serious questions going to the merits that is sufficient to overcome that strong presumption." The district court, however, overreads Cooper. Cooper did not decide whether such a presumption existed; rather, the decision merely reported the finding of the district court, then reached the merits.

11
To be sure, as the Supreme Court has instructed in Nelson and Gomez, the district court is entitled to take delay into consideration in exercising its equitable powers. However, this consideration is based on the strong interest against the plaintiff engaging in manipulation of the system. See Gomez, 503 U.S. at 654, 112 S.Ct. 1652 ("Equity must take into consideration the State's strong interest in proceeding with its judgment and [the petitioner's] obvious attempt at manipulation.").

12
In Cooper, the district court made a similar finding based on the facts and circumstances of that case. Here, however, the district court appeared to apply the presumption solely on the basis that Beardslee had not filed the case until the California Supreme Court lifted its stay of execution. Once an execution was imminent, Beardslee acted promptly. Beardslee correctly points out that the precise execution protocol is subject to alteration until the time of execution. Moreover, by regulation the California Department of Corrections does not permit challenges to "anticipated action[s]." 15 Cal.Code Regs. § 3084.3(c)(3).5 A close examination of the record indicates that, unlike the situation in Cooper or Gomez, Beardslee pursued his claims aggressively as soon as he viewed them as ripe.6

13
In short, the district court erred in applying a general rule that a claim was dilatory if first filed at the time when the possibility of execution became imminent. Rather, the district court should have conducted a fact-specific inquiry to ascertain whether the claims could have been brought earlier, and whether the petitioner had good cause for delay.

IV

14
Despite the district court's improper application of a "strong presumption," we cannot say, given our deferential standard of review, that the district court abused its discretion in denying the motion for a preliminary injunction and stay of execution based on Beardslee's Eighth and First Amendment claims.

15
* The Eighth Amendment prohibits punishments that are "incompatible with `the evolving standards of decency that mark the progress of a maturing society.'" Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion)). In the context of executions, the Eighth Amendment prohibits punishments that"involve the unnecessary and wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), "involve torture or a lingering death," In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519 (1890), or do not accord with "the dignity of man, which is the basic concept underlying the Eighth Amendment," Gregg, 428 U.S. at 173, 96 S.Ct. 2909 (internal quotation marks and citation omitted). Thus, we held that execution by hanging under the State of Washington's protocols did not constitute cruel and unusual punishment based on the district court's findings that the "mechanisms involved in bringing about unconsciousness and death in judicial hanging occur extremely rapidly, that unconsciousness was likely to be immediate or within a matter of seconds, and that death would follow rapidly thereafter." Campbell v. Wood, 18 F.3d 662, 687 (9th Cir.1994) (en banc). In contrast, although the opinion was later vacated based on the petitioner's lack of standing, we held in Fierro v. Gomez that California's lethal gas execution protocol violated the Eighth Amendment. 77 F.3d at 308. The basis for our holding was the district court's findings that inmates were likely to remain conscious for up to a minute after the execution procedure commenced and that there was a substantial likelihood that some consciousness would persist for several minutes during which "inmates suffer intense, visceral pain, primarily as a result of lack of oxygen to the cells." Id.

16
In examining the "evolving standards of decency" under the Eighth Amendment, we employ an "assessment of contemporary values concerning the infliction of a challenged sanction." Gregg, 428 U.S. at 173, 96 S.Ct. 2909. That determination "should be informed by objective factors to the maximum possible extent." Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (plurality opinion). Among the "clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures." Penry v. Lynaugh, 492 U.S. 302, 331, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In considering objections to a particular execution method, our "methodology review focuses more heavily on objective evidence of the pain involved in the challenged method." Campbell, 18 F.3d at 682. In the end, "the objective evidence, though of great importance,[does] not `wholly determine' the controversy, `for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.'" Atkins v. Virginia, 536 U.S. 304, 312, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (quoting Coker, 433 U.S. at 597, 97 S.Ct. 2861).

17
In this case, Beardslee challenges San Quentin Institution Procedure 770, the current protocol by which lethal injection executions are performed at San Quentin. Under Procedure 770, three chemicals are used to carry out the execution. Five grams of sodium pentothal (also known as sodium thiopental), a barbiturate sedative, are first administered to the inmate to induce unconsciousness. The parties agree that this dosage of sodium pentothal would be sufficient to induce unconsciousness, and even cause death itself, if administered properly. This is followed by an injection of pancuronium bromide (also known as "Pavulon"), a curare-derived agent that paralyzes all skeletal or voluntary muscles, but which has no effect whatsoever on awareness, cognition, or sensation. This neuromuscular blocking agent causes paralysis and, in sufficient dosages, stops respiration by paralyzing the diaphragm and lungs. Finally, the inmate is injected with potassium chloride, an extraordinarily painful chemical which activates the nerve fibers lining the person's veins and which interferes with the rhythmic contractions of the heart, causing cardiac arrest.

18
Beardslee claims that there is a substantial risk that sodium pentothal will not be administered correctly, thereby subjecting him to excruciating pain that will be masked to observers by the paralyzing effects of pancuronium bromide. He contends that if he is conscious during the administration of pancuronium bromide, he will experience suffocation similar to that observed in inmates executed by lethal gas. He contends that if he is conscious during the administration of potassium chloride, he will experience excruciating pain, but be unable to communicate because of the paralyzing effect of the pancuronium bromide. The State concedes that if the inmate is not properly sedated by the first drug, the inmate will experience torturous pain. However, it vigorously disputes Beardslee's claim that there is any likelihood that the first drug will be ineffective to render him unconscious for the duration of the execution procedure.

19
In support of his claim, Beardslee recites a number of perceived problems with previous lethal injection executions in California and toxicology reports from autopsies in other states which he contends indicates that condemned prisoners may have been conscious or partly conscious during the administration of pancuronium bromide. Beardslee also points to the American Veterinary Medical Association's ("AVMA") prohibition on the use of neuromuscular paralytic agents, such as pancuronium bromide, in animal euthanasia. He underscores the fact that nineteen states have passed laws banning, in whole or in part, the use of neuromuscular paralytic agents as a means of euthanizing animals. Beardslee additionally challenges the lack of specificity in Procedure 770, contending that there are many variables that can complicate the proper administration of the drugs, such as the use of Valium as a pre-execution sedative, and the problems in finding acceptable veins for the insertion of an intravenous tube.

20
The State argues that twenty-seven of the thirty-seven states employing lethal injection use the same combination of chemicals as California; that no court in any state has found lethal injection or the drugs used in such executions to be constitutionally infirm;7 and that this case is indistinguishable from Cooper. The State also underscores the concession by Beardslee's expert that, if properly administered, a five gram dose of sodium pentothal would likely be fatal. The State highlights, as it did in Cooper, its expert's declaration that all but an infinitesimally small number of people would be rendered unconscious within a minute after the proper administration of sodium pentothal. It contests the conclusions based on autopsy reports submitted by Beardslee, citing a lack of information about the specific protocol used in administering the drugs and the interval of time after death when the autopsy was performed.

21
In analyzing these arguments, and considering the objective factors present in this preliminary injunction record, we first examine the action by state legislatures. As we observed in Cooper,"[e]xecution by lethal injection is now used by 37 of the 38 states with the death penalty." Cooper, 379 F.3d at 1033.8 Thus, objective evidence of contemporary values indicates that lethal injection has been deemed an acceptable means for society to implement a death sentence. However, this observation does not address the issue raised in this case because Beardslee is not raising a generic challenge to lethal injection as a means of execution. Rather, he contests the specific protocol used in California, most importantly, the use of pancuronium bromide. In analyzing objective evidence of contemporary values on that issue, it is somewhat significant that at least nineteen states have enacted laws that either mandate the exclusive use of a sedative or expressly prohibit the use of a neuromuscular blocking agent in the euthanasia of animals.9 It is also of some significance that the leading professional association of veterinarians promulgated guidelines that prohibit the use of a sedative with a muscle-paralyzing drug for purposes of euthanasia, concluding that "[a] combination of pentobarbital with a neuromuscular blocking agent is not an acceptable euthanasia agent" for animals. 2000 Report of the American Veterinary Medical Association Panel on Euthanasia, 218 J. Am. Veterinary Med. Ass'n, 669, 681 (2001), at 680.10 Beardslee's expert opines that the AVMA condemns this combination due to the risk that the animal might not be properly sedated by the barbiturate and therefore would be conscious of the severe pain of asphyxiation while being suffocated by the neuromuscular blocking agent. In any case, it is quite clear that the AVMA does not approve of the use of neuromuscular drugs in animal euthanasia, and this view has been adopted by many states.

22
In the context of this particular challenge, the more important consideration may be the examination of the objective evidence as to the pain caused by the particular method employed at San Quentin.

23
The procedure used in most states for lethal injections originated in Oklahoma when Senator Bill Dawson asked Dr. Stanley Deutsch, then chair of the Anesthesiology Department at Oklahoma University Medical School, to recommend a method for executing prisoners through the administration of intravenous drugs. In a responsive letter, Dr. Deutsch recommended the administration of an "ultra short acting barbiturate" to induce unconsciousness, followed by the administration of a neuromuscular blocking drug to induce paralysis and death. See Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us, 63 Ohio St. L.J. 63, 95-97 (2002). Shortly thereafter, in 1977, Oklahoma became the first state to adopt lethal injection as an execution method, employing the protocol described in Dr. Deutsch's letter. See Rebecca Brannan, Sentence and Punishment: Change Method of Executing Individuals Convicted of Capital Crimes from Electrocution to Lethal Injection, 17 Ga. St. U.L.Rev. 116, 121 (2000). The first lethal injection execution occurred in Texas in 1982. Christina Michalos, Medical Ethics and the Execution Process in the United States of America, 16 Med. & L. 125, 126 (1997). Lethal injection has been an authorized method of execution in California since 1992, and the presumptive method since 1996. Cal.Penal Code § 3604, amended by 1992 Cal. Legis. Serv. 558 (West), amended by 1996 Cal. Legis. Serv. 84 (West). Humane concerns formed a large part of the motivation in adopting lethal injection as the presumptive method of execution in California. The California Assemblyman who introduced the measure in the wake of concerns over constitutionality of executing inmates by lethal gas, stated that lethal injection is "the only form of execution which from our own life's experience, we can conclude is entirely devoid of discomfort." He further asserted that "[n]o one knows for sure whether a prisoner suffers in the gas chamber.... With lethal injection, we know exactly what the person is going through because it's exactly what someone undergoing surgery experiences." Jonathan S. Abernethy, The Methodology of Death: Re-examining the Deterrence Rationale, 27 Colum. Hum. Rts. L.Rev. 379, 414 (1996).

24
Although the origins of the addition of potassium chloride to the combination are uncertain, it probably originated both from the advice of consulting physicians and Fred Leuchter, the creator of execution machinery. Denno, When Legislatures Delegate Death, supra, at 99. Twenty-seven states use the three-drug protocol. Id. at 117. New Jersey uses a two-drug protocol, administering sodium pentothal with potassium chloride. Id. North Carolina uses a two-drug protocol, using sodium pentothal with pancuronium bromide. Id.11

25
The key element in this procedure is the proper administration of the barbiturate. It is undisputed that "substantial pain and suffering can occur when the inmate receives an inadequate dosage of sodium pentothal and therefore retains consciousness and sensation during the injection of the second and third chemicals." Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L.Rev. 319, 380 (1997). Despite the critical nature of correct medical procedure, lethal injection executions are hampered by ethical restrictions on physicians, who are prohibited from participating in executions. See generally W. Noel Keyes, The Choice of Participation by Physicians in Capital Punishment, 22 Whittier L.Rev. 809 (2001). Thus, the prisons must rely on personnel who may not always be experienced in establishing an intravenous connection. Compounding this problem is the fact that some prisoners have collapsed or inaccessible veins due to drug abuse or because the veins are too deep, too flat, or below layers of fat. Denno, Getting to Death, supra at 381.

26
In some cases, executioners are forced to perform a "cut-down," a surgical procedure that exposes the vein. Id. at 382. In addition, sodium pentothal is a short acting barbiturate that must be administered properly to induce the desired effect and thereafter monitored carefully. Id. at 380. The sensitivity to sodium pentothal varies greatly among the population. Id. Some individuals, particularly those who have been building additional resistance by taking Valium or other anti-anxiety medication, are significantly more resistant to sodium pentothal than others. Id.

27
Beardslee has submitted evidence that he contends shows that a number of executed inmates in California may have been conscious, or partially conscious, during the administration of chemicals that would cause significant pain for a period similar to the one involved in Fierro. 77 F.3d at 308. He points to the California execution logs of William Bonin, Keith Williams, Jaturun Siripongs, and Manuel Babbit, which contain indications that there were problems associated with the administration of the chemicals that may have resulted in the prisoners being conscious during portions of the executions. This evidence, coupled with the opinion tendered by Beardslee's expert, raises extremely troubling questions about the protocol. Nonetheless, the record before us at this stage is insufficient to support a conclusion that the district court abused its discretion in denying the preliminary injunction.

28
Beardslee tendered an expert opinion based on the witness accounts and execution logs. However, the value of Beardslee's expert's interpretations of the witness accounts and execution log entries was undercut by the expert's concession that his expertise regarding the "pharmacokinetics [the time course of medications in the body] and pharmacodynamics [the effect of medications on the body] of sodium thiopental" was inferior to the State's expert on those matters. See Reid v. Johnson, 333 F.Supp.2d 543, 547 n. 7 (E.D.Va.2004). According to the State's expert, over 99.999999999999% of the population would be unconscious within sixty seconds from the start of the administration of five grams of sodium pentothal — which is 12.5 times the normal surgical dosage — and would render most people unconscious for a period in excess of 13 hours. Given the comparative expertise of the experts in different fields, the district court did not abuse its discretion in crediting the State's expert's interpretation.

29
As the district court correctly observed, the evidence and the arguments in this case are almost identical to those made in Cooper. Beardslee's challenge to the protocol is not based on any factors peculiar to him, such as those that were at issue in Nelson involving compromised veins in the condemned inmate. See 124 S.Ct. at 2121. Furthermore, even Beardslee's expert concedes that the amount of sodium pentothal given under Procedure 770, if properly administered, would likely be sufficient to cause loss of consciousness and probable death prior to the administration of pancuronium bromide.

30
In addition to his challenge to the use of pancuronium bromide as part of Procedure 770, Beardslee also raises a series of questions about the ambiguity of the procedure and noting the risks attendant to the improper administration of the drugs. Obviously, there are risks involved in virtually every method of execution. However, the Supreme Court has rejected Eighth Amendment challenges based on an "unforeseeable accident," Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 91 L.Ed. 422 (1947), and has presumed that state officials have acted "in a careful and humane manner," id. at 462, 67 S.Ct. 374; see also Campbell, 18 F.3d at 682 ("The risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.").

31
On the other hand, the State has tendered only minimal evidence in response to Beardslee's claims. Virtually the only affirmative evidence tendered by the State was its expert's declaration that all but an infinitesimally small number of people would be rendered unconscious within a minute after the proper administration of sodium pentothal. The State did not defend the protocol. Indeed, the State declined to produce significant portions of Procedure 770.12 The State did not, even under repeated questioning at oral argument, provide a single justification for the use of pancuronium bromide, which is one of the key issues. This response is, to say the least, troubling.13

32
Nonetheless, the question before us is not the ultimate resolution of the merits of this issue. That will have to await another day, based on a full record. Our "[a]ppellate review of the grant or denial of preliminary injunctive relief requires consideration of the merits of the underlying issue, but it does not decide them." Cooper, 379 F.3d at 1034 (Browning, J., concurring) (citing Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir.1998); Southwest Voter, 344 F.3d at 918). Our review at this stage is "limited and deferential." Southwest Voter, 344 F.3d at 918.

33
The critical question that we must ultimately answer in this case is not whether Beardslee has raised serious questions about the protocol itself, but whether, in this specific challenge, he has shown enough of a likelihood that he will be conscious during the administration of pancuronium bromide and potassium chloride to experience pain. The undisputed evidence in this limited record is that an administration of five grams of sodium pentothal will produce unconsciousness, and perhaps even death, if properly administered. Beardslee has not shown a sufficient likelihood that the administration will be improper in his case, or that there are specific risks unique to him that require modification of the protocol. His objections to the use of pancuronium bromide become irrelevant upon the proper administration of sodium pentothal.

34
Given the undisputed evidence that death or unconsciousness is likely to occur prior to the administration of pancuronium bromide and the lack of showing of any unique risk to Beardslee in this limited record, we cannot say that the district court abused its discretion in applying the appropriate balancing tests in the context of this case and denying the preliminary injunction.

B

35
Beardslee also raises a First Amendment claim. This claim was not litigated in Cooper. Beardslee contends that the use of pancuronium bromide will prevent him from audibly and consciously expressing his pain, thereby denying him his right to free speech under the First Amendment. Framed in this manner, Beardslee's argument is tied to his claim that there is a risk that he will be conscious when the final two drugs are administered. On this limited record, he has not made that showing. Therefore, in the context at this stage of the case, the district court did not abuse its discretion in denying preliminary injunctive relief on Beardslee's independent First Amendment claim.14

V

36
For these reasons, we conclude that the district court did not abuse its discretion in denying the preliminary injunction, given the limited record and the context of the case. We express no opinion on the ultimate merits of the claims.

37
The district court's order denying injunctive relief is AFFIRMED. The motion for a stay of execution is DENIED.

Notes:

1
 Because the district court denied preliminary injunctive relief, we construe this motion as one for "an order ... granting an injunction while an appeal is pending." Fed. R.App. P. 8(a)(1)(C);see Fed.R.Civ.P. 62(c).

2
 Although we realize that, in this case, the denial of a preliminary injunction is tantamount to the denial of permanent injunctive relief because the execution date is imminent, the parties do not dispute that the "normal," preliminary injunction standard of review applies. We do not reach, nor do we decide, whether a different standard of review should apply under these circumstances

3
 Cooper did not actually decide this issue. The panel reached the merits, but expressly declined to address the question of whether the claim was properly made in a habeas petition, a § 1983 action, or both. Cooper, 379 F.3d at 1031. The Fierro decision was vacated, and ultimately dismissed on standing grounds. Fierro v. Terhune, 147 F.3d 1158, 1160 (9th Cir.1998). The Supreme Court recently has also declined to reach the issue. Nelson, 124 S.Ct. at 2122-23.

4
 For the same reason, Beardslee's § 1983 action cannot be considered a second or successive federal habeas corpus petition governed by 28 U.S.C. § 2254

5
 The State claims that, regardless of this regulatory prohibition, Beardslee could have brought his administrative challenges earlier. Beardslee contends that they would have been dismissed as unripe. The plain language regulation supports Beardslee's argument. Whether or not exceptions would exist for circumstances such as these is an unsettled question. Furthermore, there may be some question, in this context, about whether Beardslee was required to exhaust his state administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), prior to filing a § 1983 action. However, both parties have assumed that exhaustion was required, and the same district court inCooper had dismissed Cooper's claims for failing to exhaust remedies. In any case, given the regulation and prior action, Beardslee cannot be faulted now for pursuit of his administrative remedies prior to filing this action.

6
 To date, we have not resolved the question of when challenges to execution methods are ripe. InStewart v. Martinez-Villareal, 523 U.S. 637, 644-45, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998), the Supreme Court held that an inmate's competency challenge was properly dismissed as unripe because "his execution was not imminent and therefore his competency to be executed could not be determined at that time." The Court held that the inmate's claim was "unquestionably ripe" only after it was clear that he "would have no federal habeas relief for his conviction or his death sentence, and the Arizona Supreme Court issued a warrant for his execution." Id. at 643, 118 S.Ct. 1618. We have suggested that a constitutional challenge to an execution method becomes ripe when the method is chosen. LaGrand v. Stewart, 170 F.3d 1158, 1159 (9th Cir.1999). However, because the execution protocol is subject to change, Beardslee argues that his challenge to the protocol, as opposed to a generic challenge to the statutorily specified method, did not become ripe until his execution was imminent as described in Martinez-Villareal. We need not, and do not resolve this question.

7
 The State also points out that we previously rejected challenges to Arizona's method of lethal injection inLaGrand v. Stewart, 133 F.3d 1253, 1265 (9th Cir.1998), and Poland v. Stewart, 117 F.3d 1094, 1104-05 (9th Cir.1997). However, as Beardslee correctly responds, those challenges were not to the execution protocol, did not involve the California procedure at issue here, and were mostly founded on evidentiary deficiencies.

8
 Alabama, Ala.Code 1975 § 15-18-82; Arizona, Ariz.Rev.Stat. Ann. § 13-704; Arkansas, Ark.Code Ann. § 5-4-617; California, Cal.Penal Code § 3604; Colorado, Colo.Rev.Stat. Ann. § 18-1.3-102; Connecticut, Conn. Gen.Stat. § 54-100; Delaware, Del.Code Ann. tit. 11, § 4209(f); Florida, Fla. Stat. Ann. § 922.105; Georgia, Ga.Code Ann., § 17-10-38; Idaho, Idaho Code § 19-2716; Illinois, 725 Ill. Comp. Stat. Ann. 5/119-5(a)(1); Indiana, Ind.Code Ann. § 35-38-6-1; Kansas, Kan. Stat. Ann. § 22-4001; Kentucky, Ky.Rev.Stat. Ann. § 431.220; Louisiana, La.Rev.Stat. Ann. § 15:569 B; Maryland, Md.Code Ann., Corr. Servs. § 3-905; Mississippi, Miss.Code Ann. 99-19-51; Missouri, Mo.Rev.Stat. § 546.720; Montana, Mont.Code Ann. § 46-19-103; Nevada, Nev.Rev.Stat. § 176.355 1; New Hampshire, N.H.Rev.Stat. Ann. § 630:5 XIII; New Jersey, N.J. Stat. Ann. § 2C:49-2; New Mexico, N.M. Stat. Ann. § 31-14-11; New York, N.Y. Correct. Law § 658; North Carolina, N.C. Gen.Stat. § 15-187; Ohio, Ohio Rev.Code Ann. § 2949.22; Oklahoma, Okla. Stat. Ann. tit. 22, § 1014; Oregon, Or.Rev.Stat. § 137.473, amended by 2003 Or. Laws 103; Pennsylvania, Pa. Stat. Ann. tit. 61, § 3004; South Carolina, S.C.Code Ann. 24-3-530; South Dakota, S.D. Codified Laws § 23A-27A-32; Tennessee, Tenn.Code Ann. § 40-23-114; Texas, Texas Crim. Proc.Code Ann. § 43.14; Utah, Utah Code Ann. § 77-18-5.5; Virginia, Va.Code Ann. § 53.1-233; Washington, Wash. Rev.Code Ann. § 10.95.180; and Wyoming, Wyo. Stat. Ann. § 7-13-904. SinceCooper was decided, the death penalty statutes in New York and Kansas have been held unconstitutional for reasons other than the method of execution. People v. LaValle, 3 N.Y.3d 88, 783 N.Y.S.2d 485, 817 N.E.2d 341, 367 (2004); State v. Marsh, 102 P.3d 445, 458-59 (Kan.2004).

9
 The states that expressly forbid the use of neuromuscular blocking agents to euthanize animals are: Florida, Fla. Stat. §§ 828.058 and 828.065; Georgia, Ga.Code Ann. § 4-11-5.1; Maine, Me.Rev.Stat. Ann., tit. 17, § 1044; Maryland, Md.Code Ann., Criminal Law, § 10-611; Massachusetts, Mass. Gen. Laws ch. 140 § 151A; New Jersey, N.J. Stat. Ann. 4:22-19.3; New York, N.Y. Agric. & Mkts Law § 374; Oklahoma, Okla. Stat. tit. 4, § 501; and Tennessee, Tenn.Code Ann. § 44-17-303. The states that mandate the use of particular methods for animal euthanasia, most often the use of the sedative sodium pentobarbitol, and therefore implicitly ban the use of neuromuscular blocking agents are: Connecticut, Conn. Gen.Stat. § 22-344a; Delaware, Del.Code Ann. tit. 3, § 8001; Illinois, 510 Ill. Comp. Stat. 70/2.09; Kansas, Kan. Stat. Ann. § 47-1718(a); Kentucky, Ky.Rev.Stat. Ann. § 312.181(17) and Ky. Admin. Regs. 16:090 section 5(1); Louisiana, La.Rev.Stat. Ann. § 3.2465; Missouri, Mo.Rev.Stat. § 578.005(7); Rhode Island, R.I. Gen. Laws § 4-1-34; and South Carolina; S.C.Code Ann. § 47-3-420; Texas, Tex. Health & Safety Code Ann. § 821.052(a)

10
 The most common protocol for animal euthanasia is a single overdose of a barbiturate, usually sodium pentobarbital (which is a longer acting barbiturate than sodium pentothal)

11
 The history of the use of the three chemical protocol gives some force to Beardslee's argument that the adoption of the procedure in California was informally based on the observation of two Texas executions by the then-warden of San Quentin and the precise protocol was never subjected to the rigors of scientific analysis

12
 The State has advanced no legitimate reason, indeed, no reason at all, for its refusal to disclose the entire protocol to the condemned prisoner

13
 Indeed, the State's expert conceded that at least one of the purposes for the use of pancuronium bromide in the lethal injection protocol is to prevent seizures that often occur after cardiac arrest induced by the administration of potassium chloride that could be interpreted erroneously by lay observers as pain or discomfort. The record does not contain any other explanation

14
 We granted the ACLU of Northern California and Death Penalty Focus leave to file an amici brief in this case, and heard argument from Amici. Amici argue that the public has a First Amendment right to a pancuronium bromide-free execution independent of that of Beardslee. Amici contend that the use of pancuronium bromide serves no purpose during an execution other than a purpose not recognized by the Constitution — to prevent viewers from seeing the inmate suffer excruciating pain and convulse as the lethal chemicals are administered. Thus, Amici claim that pancuronium bromide acts as a "chemical curtain" interfering with the public's right to knowSee Cal. First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir.2002). Although their arguments may have merit, these parties did not intervene in the district court action and their independent claims are not properly before us. See Russian River Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1141 n. 1 (9th Cir.1998) ("Generally, we will not consider on appeal an issue raised only by an amicus.").


5 Cal.App.2d 208 (1935)
MAJOR MAGARIAN, Appellant,
v.
SILAS MOSER et al., Respondents.
Civ. No. 1366.
California Court of Appeals. Fourth Appellate District.
March 9, 1935.
 Clyde Cate and Ray W. Hays for Appellant.
 Harold M. Child and Halbert & Stone for Respondents.
 Allyn, J., pro tem.
 This is an appeal by plaintiff from a judgment in favor of defendants on their cross-complaints in an action arising out of a collision between two automobile trucks. Both drivers were proceeding in a general easterly direction, the plaintiff, driver of the leading truck, well to the right-hand side of the pavement. One of the defendants, driving the overtaking truck proceeding at a greater rate of speed, sounded his horn, turned to the extreme left of the road, giving sufficient clearance to pass. When he was but a few feet from the rear of the first truck its driver suddenly swerved to the left into the path of the overtaking vehicle and was struck by it.
 The findings of the trial court are against plaintiff and in favor of the defendants on the issues of negligence and as conclusions of law judgment was ordered against plaintiff on his complaint and in favor of the defendants on their cross-complaints. The trial court, in addition to its formal findings and conclusions, filed a written opinion which is in some respects inconsistent with the findings and conclusions. *210 There is, however, no lack of conformity of the judgment with said findings and conclusions.
 [1] When findings are required the decision of the court is rendered when they are made and filed with the clerk as required by sections 632 and 633 of the Code of Civil Procedure. The court retains power to amend and change them and to enter judgment different from that first announced. This power continues until the entry of the judgment. (Brownell v. Superior Court, 157 Cal. 703 [109 P. 91].)
 [2] We have been shown no authority to support appellant's argument that the written opinion of the trial judge constituted a part of the court's decision and that its inconsistency with the findings and conclusions filed deprives the judgment of the support and conformity required by law. It is obvious that the judgment as entered must be supported by and conform to the findings (Nestor v. Burr, 124 Cal.App. 369 [12 PaCal.2d 479]), but it seems equally clear that a written opinion of the trial court is no more a part of the decision rendered than an oral pronouncement can be and that such opinion, even if inconsistent with the formal conclusions reached by the court, cannot be made the basis for a reversal when the findings, conclusions and judgment are consistent.
 [3] It is argued that the driver of defendant's truck had the last clear chance to avoid the collision and hence plaintiff should have taken judgment. This argument is based upon false premises: First, that the defendant's driver was negligent; and second, that plaintiff's negligence did not continue to the moment of the impact. The trial court on conflicting evidence found adversely to plaintiff on each of these questions. There is ample evidence to support both the finding that the defendant's driver was not negligent in attempting to pass plaintiff's truck after giving an audible signal and turning a safe distance to the left of the highway, and the further finding that the plaintiff was negligent in swerving suddenly to the left into the path of the overtaking vehicle. [4] Even if the driver of defendant's truck had been found to be negligent it does not appear that the last clear chance doctrine would apply because in order to do so it must have been found that the defendant's driver could, by the exercise of reasonable diligence, *211 have avoided the collision and further that the plaintiff was not actively and contemporaneously at fault until the moment of the impact. (Rasmussen v. Fresno Traction Co., 138 Cal.App. 540 [32 PaCal.2d 1091].)
 The judgment is affirmed.
 Barnard, P. J., and Marks, J., concurred.


566 N.W.2d 692 (1997)
Joseph Leander RAINER, Petitioner, Appellant,
v.
STATE of Minnesota, Respondent.
No. C7-96-1807.
Supreme Court of Minnesota.
July 10, 1997.
*693 Joseph Rainer, Stillwater, pro se.
Hubert H. Humphrey, III, Minnesota Attorney General, St. Paul, Walter M. Kaminsky, Sherburne County Attorney, Thomas N. Price, Assistant Sherburne County Attorney, Elk River, for Respondent.
Considered and decided by the court en banc without oral argument.

OPINION
TOMLJANOVICH, Justice.
This is an appeal from the denial of a second petition for postconviction relief. Petitioner Joseph Leander Rainer was convicted of first-degree murder in May 1986 for the shooting death of Marla Forrest. Rainer challenged his conviction on direct appeal and we affirmed his conviction. State v. Rainer, 411 N.W.2d 490 (Minn.1987) ("Rainer I"). Rainer then sought habeas relief in federal district court, which the court denied. The Eighth Circuit Court of Appeals subsequently affirmed the denial. Rainer v. Department of Corrections, 914 F.2d 1067 (8th Cir.1990), cert. denied, 498 U.S. 1099, 111 S.Ct. 993, 112 L.Ed.2d 1077 (1991).
In July 1991, Rainer filed his first petition for postconviction relief, arguing that he was denied effective assistance of counsel and that newly discovered evidence warranted a new trial. The trial court denied Rainer's petition and we affirmed the denial. State v. Rainer, 502 N.W.2d 784 (Minn.1993) ("Rainer II").
Rainer subsequently filed a second petition for postconviction relief, which is the subject of this appeal. The trial court again denied Rainer postconviction relief and we hold that the postconviction court properly denied the relief.
We stated the facts of this case in Rainer I, 411 N.W.2d 490 (Minn.1987):

*694 Defendant and Marla Forrest had known each other since the summer of 1983 when Forrest began taking her car to defendant's gas station. The two spent time together and defendant wanted to get married, but Forrest was not prepared to make a commitment. Within the last two weeks before the shooting Forrest told friends that she planned to terminate the relationship.
On October 27, 1984, Forrest went to defendant's house so that he could replace the engine in her car. Her 9-year-old son Tobi went along. During the afternoon Forrest and defendant talked and drank beer, while Tobi amused himself. Forrest sounded normal and cheerful when her father telephoned and she told him that she would use defendant's car to get home. At one point during the afternoon Tobi heard an argument between Forrest and defendant.
At the end of the afternoon as Forrest was leaving, defendant walked her out to the car. According to the account of the incident defendant gave the police, he picked up a single shot 12-gauge shotgun that he had left lying in the breezeway, tucked it under his arm, and it accidentally fired, hitting Forrest in the back. He said that he had been shooting squirrels that morning and had left the gun in the breezeway and that he picked it up to get it out of the mist. Defendant's former wife, Maxine, testified that defendant made a habit of keeping his guns loaded. Tobi said that the gun was not in the breezeway but in the living room, leaning against the wall near the gun case. Defendant's tenant said that he did not remember seeing a gun in the breezeway when he walked through the breezeway in the early afternoon.
Medical evidence indicated that Forrest was shot in the back from one [1] to two [2] feet away at a downward angle of between 10 and 20 degrees. The wound was 44 1/2 inches from Forrest's bare feet, and her boots added another 1 3/4 to 2 inches. Defendant measured between 47 3/8 inches and 53 inches from stocking foot to armpit (measurements at different times yielded different results); his boots added another 1 3/4 inches. The downward angle and the measurements of the two bodies were relevant to the question of whether the gun was under defendant's arm when it went off, as he claimed, or whether it was at his shoulder, a normal position for intentional firing, as the state hypothesized.
Expert testimony concerning the gun established that the gun required cocking before firing, though it had no other safety device, and that a moderate to heavy amount of force was needed for pulling the trigger. The gun would not discharge without the trigger being pulled when it was tested by dropping it or striking it with a rubber mallet when it was cocked. No tests were made concerning pulling the gun along clothing, though the expert agreed that the gun could be cocked by catching it on clothing. The expert did not comment on whether the trigger could be pulled by drawing it across clothing.
Rainer I, 411 N.W.2d at 493-95.
In this second petition for postconviction relief, Rainer primarily raises two substantive claims: (1) that he was entitled to a new trial based on newly discovered evidence contained in an anonymous letter, and (2) that his inmate wages were wrongfully withheld in violation of due process, double jeopardy, ex post facto, and equal protection.[1]
*695 Our review of a postconviction proceeding is limited to a determination of whether there is sufficient evidence to sustain the postconviction court's findings. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). We will not disturb a postconviction court's decision absent an abuse of discretion. Id.
First, Rainer argues that he is entitled to postconviction relief based on an anonymous letter, which reads as follows:
Mr. Rainer, I heard you were going back to court on something that you are in prison for. I am not going to have this on my mind forever. You don't belong there. The girl's son was 8 or 9 years old. They told him to say the gun was in the house. Something about you killed an animal outside, and had the shells some place in a car garage and you were stupid to leave a loaded gun outside. I heard they shaved some hammer off the gun so you can't say it caught on all the clothes you had on. Can't you tell someone about this wrongdoing. I can't tell you who I am. I will be in hot water, but you don't belong there.
Without an evidentiary hearing, the trial court denied postconviction relief, holding that the letter was not reliable and that it would be unlikely to produce an acquittal or a more favorable result. We have held that an evidentiary hearing is not required unless the petitioner alleges such facts which, if proved by a fair preponderance of the evidence, would entitle him or her to the requested relief. Roby v. State, 547 N.W.2d 354, 356 (Minn.1996); Hanley v. State, 534 N.W.2d 277, 278 (Minn.1995). Furthermore, the allegations raised in the petition must be more than argumentative assertions without factual support. Roby, 547 N.W.2d at 356; Hodgson v. State, 540 N.W.2d 515, 516 (Minn.1995).
When determining whether to grant a new trial based upon newly discovered evidence, a defendant must prove the following: (1) that the evidence was not known to the defendant or his/her counsel at the time of the trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result. Hodgson, 540 N.W.2d at 517, Race v. State, 504 N.W.2d 214, 217 (Minn.1993).
In Rainer's affidavit submitted to the trial court on the issue of the anonymous letter, he asserted that the prosecution's expert disassembled the gun and filed down the hammer on the gun without the notification by the prosecution. However, the only factual support Rainer provides is the anonymous and uncorroborated letter.
The letter is not a sufficient basis on which to grant a new trial because it fails to meet each of the last three requirements of Hodgson. First, Rainer could have discovered prior to trial evidence that the prosecution's expert had filed down the hammer because Rainer had retained a firearms expert to examine the gun prior to trial.[2] Secondly, the evidence to support Rainer's allegation is based solely on the anonymous letter, which is uncorroborated and unreliable. Finally, the letter is unlikely to produce a more favorable result to Rainer because it constitutes inadmissible hearsay. Even if the letter were admissible, it still fails to address expert testimony that both the hammer and the trigger would have had to snag on Rainer's clothes at the same time for the gun to *696 accidentally fire.[3] Given the unreliable nature of this letter, an evidentiary hearing on this issue was not required and postconviction relief was properly denied.
Rainer also argues that he is entitled to postconviction relief because his constitutional rights are being violated by the Department of Corrections' deduction of room and board costs from his inmate wages to offset the cost of his incarceration. Specifically, Rainer argues that such a policy is unconstitutional because it violates double jeopardy, ex post facto, and his rights to due process and equal protection.[4] Although the trial court held that Rainer improperly challenged the constitutionality of the wage withholding statutes, the court concluded that such statutes were constitutional.
We decline any review on the merits of this claim because it is not properly brought as a basis for postconviction relief. Postconviction remedies generally are available only for claims "that the conviction obtained or the sentence or other disposition made violated the person's rights under the Constitution or laws of the United States or of the state * * * ." Minn.Stat. § 590.01, subd. 1 (1996). Rainer's challenge to the wage withholding policy of DOCs is not related to his conviction or sentence for first-degree murder. Because the constitutionality of the wage withholding policy is an issue completely separate from Rainer's conviction or sentence, it is improperly brought as a basis for postconviction relief. Thompson v. State, 284 Minn. 274, 277-78, 170 N.W.2d 101, 104 (1969) (the Postconviction Remedy Act was enacted to provide a postconviction remedy by which a defendant may attack the judgment of conviction).
In summary, we conclude that an anonymous and uncorroborated letter is not a sufficient basis on which to grant a new trial. We further hold that constitutional claims against the Department of Corrections' deduction of room and board costs from inmate wages to offset the cost of incarceration are not properly brought as a basis for postconviction relief.
Affirmed.
NOTES
[1]  In his second petition for postconviction relief, Rainer also challenges the trial court's admission of prior bad acts, the state investigator's presence during the defense expert's examination of the gun, redenial of effective assistance of counsel during his motion for a Schwartz hearing, and the unconstitutional nature of the indictment and the statute under which he was convicted. Because Rainer failed to address these issues in his informal brief, each is deemed to be waived on appeal to this court. Scruggs v. State, 484 N.W.2d 21, 24 (Minn.1992).

Furthermore, none of these remaining claims warrants postconviction relief. In regard to the first three claims, Rainer has twice before raised these issues in his direct appeal and his first petition for postconviction relief. Thus, these issues will not be considered in a subsequent petition for postconviction relief. Roby v. State, 531 N.W.2d 482, 483-84 (Minn.1995); Case v. State, 364 N.W.2d 797, 799 (Minn.1985) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). In regard to his claim that both the language of the indictment and the statute under which he was convicted are unconstitutional, Rainer had ample opportunity to raise such claims on direct appeal. Because these claims were known to Rainer at the time of his direct appeal, his failure to raise them at that time precludes him from raising them now. See Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995); Fox v. State, 474 N.W.2d 821, 824 (Minn. 1991); Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.
[2]  Although Rainer's expert conducted an examination of the gun, Rainer's attorney decided not to call the expert as a witness at trial because of adverse information that arose regarding the expert's examination. Specifically, an investigator with the sheriff's department was present during the examination and he subsequently wrote a report regarding his observations of the examination. In that report, the investigator quoted the expert as making negative comments about Rainer's story, particularly with regard to the angle of the wound and the position in which the gun was held. Rainer II, 502 N.W.2d at 786-87.
[3]  We further note that at the time of the trial, Rainer was aware that the gun was disassembled because photo exhibits of the gun showed that it had been disassembled to reveal the internal mechanisms of the gun. Because Rainer was aware that the gun was disassembled at the time of his direct appeal and failed to challenge this matter, he should be denied the opportunity to raise it at this time. Fox v. State, 474 N.W.2d 821, 824 (Minn.1991).
[4]  Although all four constitutional claims were raised in Rainer's second petition for postconviction relief, his brief to this court failed to address the equal protection and due process claims.


102 B.R. 785 (1989)
In re John M. FIGY, Jr. a/k/a and d/b/a T.V. Jacks, Debtor.
Bankruptcy No. 87-04014-H7.
United States Bankruptcy Court, S.D. California.
July 18, 1989.
*786 Robert V. Schucker, Imperial Beach, Cal., for debtor.
Jerry Michael Suppa, San Diego, Cal., for plaintiff.
Law Firm of Lindley, Lazar & Scales, San Diego, Cal., for Transamerica Commercial.

MEMORANDUM DECISION
JOHN J. HARGROVE, Bankruptcy Judge.
At issue is whether in a Chapter 7 case, the debtor is entitled to avoid a pre-judgment attachment lien on his homesteaded real property, when subsequent to the filing of the Chapter 7 petition, and at the time of the debtor's motion to avoid lien, he no longer resides in the homesteaded property.
This court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334 and § 157(b)(1) and General Order No. 312-D of the United States District Court, Southern District of California. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B).

FACTS
The debtor is the co-owner of certain real property located at 37 Sierra Way ("Sierra Way property"), Chula Vista, California, valued at between $160,000 and $170,000.[1] On August 14, 1986, debtor recorded a homestead with the San Diego County Recorder.[2]
On September 12, 1986, as part of its action against the debtor, Borg-Warner Acceptance Corporation ("Borg-Warner") obtained a pre-judgment writ of attachment (the "writ") in the California Superior Court.
On June 3, 1987, debtor filed his Chapter 7 petition. The unrebutted evidence is that on all of the dates previously stated, the debtor resided at the Sierra Way property. Sometime subsequent to the filing of the Chapter 7 petition, the debtor vacated the Sierra Way property and has since held the Sierra property as rental property.
In April 1988, the trustee attempted to sell the Sierra Way property but received opposition from a Patricia Krajsa ("Krajsa") who claimed that she was the owner of at least a one half interest in the Sierra Way property. After a hearing on June 16, 1988, this court determined that Krajsa was entitled to a one half ownership interest in the Sierra Way property. Thereafter, the trustee abandoned his interest in the Sierra Way property and on March 29, 1989, the debtor filed his motion to avoid the writ held by Borg-Warner.
The motion was opposed by Transamerica Commercial Finance Corporation ("Transamerica"), successor in interest to Borg-Warner.
Transamerica contends that the California homestead exemption is designed to protect the debtor's primary residence and that since the Sierra Way property is not presently the debtor's primary residence, he is not entitled to the homestead exemption under California Code of Civil Procedure § 704.910, et seq.

DISCUSSION
The fresh-start policy of the Bankruptcy Code requires that the debtor's exemptions be protected in toto. Thus, judicial liens on assets such as the debtor's homestead exemption may be set aside. In re Baxter, 19 B.R. 674 (9th Cir. BAP 1982). The debtor may avoid a judicial lien on any property to the extent that the property could have been exempted in the absence of a lien. Id. at 675.
Further, in a Chapter 7 case, the debtor's exemption rights are fixed as of the petition *787 date. In re Seyfert, 97 B.R. 590 (Bankr.S.D.Cal.1989).
Transamerica did not produce any evidence indicating that the debtor intended to abandon his homestead or had recorded a subsequent homestead on another real property which would constitute an abandonment of the first declared homestead by operation of California law. To the contrary, the debtor affirmatively asserts his declared homestead interest in 37 Sierra Way.
Transamerica's reliance on In re Anderson, 824 F.2d 754 (9th Cir.1987), is misplaced. By virtue of a recorded declaration of homestead, the debtor is entitled to the benefits of the Article 5 declared homestead. The Article 5 definitions, unlike those in Article 4, do not require continued residency. Id. at 757. Although residency is required to properly declare an Article 5 homestead, moving away from the homestead does not destroy the exemption status. Further, judgment liens do not attach to the equity protected by the declared homestead exemption. Id. at 757, California Code of Civil Procedure § 704.950.
Additionally, Anderson is factually distinguishable from the present case since the debtors in Anderson did not reside in the homesteaded residence when they filed their bankruptcy petition. The Ninth Circuit emphasized the fact that the debtors had the opportunity, before filing bankruptcy to protect their equity in their residence by transferring it to their new home, but failed to take appropriate action. Anderson, supra, at 760.
Since a pre-judgment writ of attachment is a judicial lien for the purposes of § 101(32) and § 522(f) of the Bankruptcy Code, In re Austin, 73 B.R. 75, 77 (Bankr. D.Vt.1987); In re Coston, 65 B.R. 224, 226 (Bankr.D.N.M.1986) and In re McNeely, 51 B.R. 816, 819 (Bankr.D.Utah 1985), the writ of attachment, to the extent that such lien impairs the debtor's homestead exemption in the residence at Sierra Way property, shall and hereby is avoided.
However, the record in this Chapter 7 case as judicially noticed by this court herein indicates that there may be surplus equity over the debtor's $45,000 homestead exemption. Nothing in this decision shall be construed as avoiding Transamerica's writ, to the extent that the lien would be enforceable as determined by the appropriate California court under California Code of Civil Procedure § 704.950, against the amount of any surplus over the debtor's homestead exemption.

CONCLUSION
This Memorandum Decision constitutes findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052. Counsel for the debtor is directed to file with this court an Order in conformance with this Memorandum Decision within ten (10) days from the date of entry hereof.
NOTES
[1]  The court bases this value on the Chapter 7 trustee's notice of sale filed on April 8, 1988, in which the trustee sought approval of a sale of 37 Sierra Way at a price of $162,000 subject to overbids starting at $170,000. This court has taken judicial notice of the trustee's and debtor's pleadings in this regard.
[2]  Article 5 (§§ 704.910-704.995) of Title 9, Part 2, Chapter 4 of the California Code of Civil Procedure.