419 F.Supp. 792 (1976)
Mary Ann BARRETT, Plaintiff,
v.
McDONALD'S OF OKLAHOMA CITY et al., Defendants.
Robert John KOSEC, Plaintiff,
v.
McDONALD'S SYSTEMS, INC., an Illinois Corporation, et al., Defendants.
Daniel R. SMALLEY et al., Plaintiffs,
v.
McDONALD'S SYSTEMS, INC., an Illinois Corporation, et al., Defendants.
Nos. CIV-75-0929-D, CIV-75-1021-D, CIV-76-0169-D.
United States District Court, W. D. Oklahoma.
June 14, 1976.
*793 Murray Cohen, Otto Pluess, III, Coleman Hayes, Oklahoma City, Okl., for plaintiffs.
Patrick M. Ryan, Douglas R. Herman, Oklahoma City, Okl., for defendants.

ORDER
DAUGHERTY, Chief Judge.
The three above captioned cases are private actions in which Plaintiffs seek redress from Defendants for alleged violations of the overtime provisions of the Fair Labor Standards Act (FLSA) of 1938 as amended. (29 U.S.C. § 201 et seq.) All three actions were originally filed in the District Court of Oklahoma County, State of Oklahoma (State Court) and thereafter removed to this Court by Defendants. Plaintiffs have filed Motions to Remand in each action which are supported by Briefs. Defendants have filed Responses to said Motions in the form of Briefs in opposition thereto. Due to common questions of law involved in the Motions to Remand, the Court will consider same as to all cases and this Order shall constitute its ruling in all cases.
At the time the Barrett case was removed, subject matter jurisdiction existed pursuant to 28 U.S.C. § 1332 by reason of diversity of citizenship and amount in controversy. The Removal Petition was based on such jurisdiction.[1] Subsequently, Plaintiff Barrett filed her First Amended Complaint in which she added several non-diverse Defendants. She thereafter filed her Motion to Remand urging that a federal question did not exist and further that diversity of citizenship did not exist. Plaintiff Barrett's acts of adding non-diverse parties after her case was properly removed based on diversity jurisdiction does not defeat the subject matter jurisdiction of this Court which existed at the time of removal and cause the case to be remanded. When considering a Motion to Remand, the pleadings as they exist at the time of removal are looked to by the Court. Barrie Co., Inc. v. Levine, 390 F.Supp. 475 (S.D.N.Y.1975). Once a case has been properly removed a Plaintiff cannot successfully do anything to defeat federal jurisdiction and force a remand. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Hatridge v. Aetna Casualty & Surety Company, 415 F.2d 809 (Eighth Cir. 1969). It thus appears that the Barrett case was properly removed to this Court based on the then existing jurisdictional basis that diversity of citizenship and amount in controversy was present and Plaintiff Barrett's Motion to Remand on the basis diversity of citizenship no longer *794 exists is without merit and said Motion should be overruled. Moreover, the issues to be determined hereafter as to the Kosec and Smalley cases would apply equally to the Barrett case even if diversity of citizenship jurisdiction had not existed at the time of removal.
The basis for Removal for the Kosec and Smalley cases as stated in the Petitions for Removal in same is that subject matter jurisdiction exists pursuant to 28 U.S.C. § 1337 for civil actions pursuant to the FLSA and removal is permissible under the provisions of 28 U.S.C. § 1441(a). Although Plaintiffs raise many irrelevant arguments in their Briefs relating to lack of diversity jurisdiction pursuant to 28 U.S.C. § 1332 or federal question jurisdiction pursuant to 28 U.S.C. § 1331, they correctly define the issues before this Court in the following statement contained in Plaintiff Kosec's Supplemental Brief:
"The basic issue and the only issue to be decided is whether a suit filed under the FAIR LABOR STANDARDS ACT, Title 29 U.S.C. Section 216(b) in a State Court may be removed to a Federal Court at the will of the Defendant or is the forum the election of the employee Plaintiff.[?]"
Plaintiffs recognize that this Court ruled on this issue in the case of Goettel v. Glenn Berry Mfrs., Inc., 236 F.Supp. 884 (N.D.Okl. 1964) at which time the Court determined that FLSA cases initiated in State Courts could be removed to Federal Courts at the option of a defendant. Plaintiffs urge that this Court should reexamine its holding in Goettel, supra, apparently on the basis that it should consider a statement contained in Senate Report 1830 as set out in the case of Wilkins v. Renault Southwest, Inc., 227 F.Supp. 647 (N.D.Tex.1964) which Report appears to contain an erroneous statement that FLSA cases were not removable. It appears to this Court that much of Plaintiffs' argument is developed from the Wilkins, supra, case.
Defendants rely heavily on the case of Hill v. Moss-American, Inc., 309 F.Supp. 1175 (N.D.Miss.1970) which case contains an excellent discussion concluding that pursuant to 28 U.S.C. § 1441(a)[2] an express provision does not exist which precludes removal of a FLSA case from a state to Federal Court.
Although not involving the FLSA, 28 U.S.C. § 1441(a) was considered in Beckman v. Graves, 360 F.2d 148 (Tenth Cir. 1966) wherein now Chief Judge Lewis stated:
"We hold the trial court properly allowed the removal of this action. Section 1365 of the act (7 U.S.C. 1365) vests concurrent jurisdiction in the state and federal courts and where original jurisdiction exists in the federal courts removal is allowed by 28 U.S.C. 1441(a) unless specifically prohibited by act of Congress. See Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70. Although the statute gives the farmer (appellant) a choice of forum, it does not guarantee that his choice shall remain undisturbed. And since the Agricultural Adjustment Act does not expressly prohibit removal as it could have done, Davis v. Joyner, D.C., 240 F.Supp. 689, this court will not do it by implication or by ignoring the meaning of section 1441."
Plaintiffs herein contend that the provisions of 29 U.S.C. § 216(b) which provides for concurrent state and federal jurisdiction evidences a congressional intent that removal is not permitted. The relevant statutory provision states:
"Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of themselves and other employees similarly situated."
Plaintiffs urge that the language "Action . . . may be maintained" evidences an *795 intent same not be subject to removal contending that removal precludes "maintaining" the action in the state Court. The following treatment of said contention by the Court in Hill v. Moss-American, Inc., supra, warrants adoption by this Court wherein the Court stated:
"Quite a different situation obtains in the case of FLS Act. No mention of removal is made in the Act itself and no reference is made to it in the general removal or other federal statutes. By the amendatory language of § 1441(a) removal jurisdiction exists in any case of which the federal district court has original jurisdiction except as otherwise expressly provided by Act of Congress. The command of this language is indisputably clear so that nothing short of an express statutory provision may preclude removal. This renders, in our view, irrelevant the correct meaning of the word `maintain' which is susceptible of two possible, reasonable interpretations, either to commence or to prosecute to conclusion, for neither connotation expressly negatives removal. We must reject a construction of a word or words which would imply a Congressional intent against removal since Congress itself has plainly declared that denial of removal must be `expressly provided'."
See also, Anthony v. West Coast Drug Company, 331 F.Supp. 1279 (W.D.Wash.1971). The rationale developed in Hill v. Moss-American, supra, is stated by the textwriter in Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3729 as follows:
"The courts allowing removal have argued that the language in the FLSA permitting actions to be `maintained' in state or federal court (1) imply only that actions may be commenced in either court, and does not grant a right to prosecute the case to conclusion in the chosen forum, and (2) does not constitute an express provision prohibiting removal, as is required by the general removal statute, Section 1441(a)."
This Court after considering further development of the law in the almost twelve years since it last considered the issue whether a FLSA case filed in a state Court can be removed to a Federal Court determines that during such period the statutes in question[3] have not been amended and the question remains unresolved by the Supreme Court of the United States or by the Court of Appeals of the Tenth Circuit.[4] It is thus determined that the Court should adopt its holding in Goettel v. Glenn Berry Mfrs., Inc., supra, wherein it stated:
"Thus, though provision has been made in the Act for dual and concurrent jurisdiction between State and Federal Courts of actions brought under the Act, such provision does not render the action non-removable. The action falls within that category of cases stated by Congress to be removable at the option of the defendant and no express provision exists prohibiting or inhibiting such removal."
For the foregoing reasons the Motions to Remand filed by Plaintiffs in each of the three cases herein are denied.
NOTES
[1]  The Complaint filed in State Court properly states Federal Court jurisdiction pursuant to 28 U.S.C. § 1337 for a FLSA case.
[2]  Said statute provides:

"Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending." (Emphasis supplied)
[3]  28 U.S.C. § 1441(a) and 29 U.S.C. § 216(b).
[4]  The Court is unable to find that any Circuit Court has ruled on the question in point since the 1948 amendment to 28 U.S.C. § 1441(a).


                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00262-CV

THE CITY OF COLLEGE STATION,
                                                         Appellant
v.

PATRICIA KAHLDEN, INDIVIDUALLY AND
AS REPRESENTATIVE OF THE ESTATE OF
LILLIE MAY WILLIAMS BAYLESS,
                                                         Appellee

                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 11-003172-CV-272

                                       ORDER

      Without regard to the characterization of the basis of the Court’s holding as

stated by Kahlden in her motion for rehearing, with which we do not agree, we deny

her motion for rehearing filed on April 14, 2014.

                                         TOM GRAY
                                         Chief Justice
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Motion denied
Order issued and filed April 24, 2014

The City of College Station v. Kahlden   Page 2


864 F.2d 85
Jean L. RICHARDS, Plaintiff-Appellant,v.Hal HARPER, Max Baucus, and Pat Williams, Defendants-Appellees.
No. 87-4225.
United States Court of Appeals,Ninth Circuit.
Submitted Dec. 16, 1988.*Decided Dec. 23, 1988.

Jean L. Richards, Corvalis, Mont., pro se.
Stanley T. Kaleczyc, Helena, Mont., for defendant-appellee Harper.
Michael Davidson, Morgan J. Frankel, Washington, D.C., for defendant-appellee Baucus.
Steven R. Ross, Michael L. Murray, U.S. House of Representatives, Washington, D.C., for defendant-appellee Williams.
Appeal from the United States District Court for the District of Montana.
Before GOODWIN, Chief Judge, WRIGHT and WALLACE, Circuit Judges.
EUGENE A. WRIGHT, Circuit Judge:

1
Jean Richards, appealing pro se, challenges the exercise of removal jurisdiction, the refusal to appoint counsel under 28 U.S.C. Sec. 1915(d) (1982), summary judgment in favor of two defendants and dismissal in favor of a third.

FACTS

2
Richards alleges that United States Senator Baucus, United States Representative Pat Williams, and Montana State Representative Hal Harper violated her civil rights through "obstruction of justice, defamation, harassment, misuse of public record, retaliation with government services, improper and illegal practices, and political activity."    She holds them responsible for allegedly discriminatory practices of the United Methodist Church.

3
Defendants Baucus and Williams removed from state court to the United States District Court under 28 U.S.C. Sec. 1442(a)(1) (1982).  All three legislators moved to dismiss for failure to state a claim.  Richards opposed removal, asserting that Harper never received process.

4
The judge found removal proper.  Baucus and Williams qualified as "Officers of the United States" under 28 U.S.C. Sec. 1442(a)(1) and "... any actions on [their] ... part ... were taken under color of federal office...."  He determined that removal by Baucus and Williams established jurisdiction over the entire action, including Richards' claims against Harper.  He also denied Richards' motion opposing removal for lack of service.

5
The court granted without prejudice the legislators' motions to dismiss because Richards' complaint was "devoid of specific factual allegations against any defendant."

6
Richards amended her complaint but failed to cure this basic defect.  Baucus and Harper moved for dismissal or summary judgment.  Williams moved for dismissal.  The court denied Richards a court-appointed counsel, granted summary judgment to Baucus and Harper and dismissed the complaint against Williams.  It held that "[a] constituent is not entitled to sue for damages simply because his or her representative fails to resolve a petition as the constituent wishes."    Alternatively, it determined that qualified immunity shielded the legislators from liability.  It concluded the action was "frivolous."

DISCUSSION

7
I. Removal of the Claims Against Baucus and Williams

8
We review removal jurisdiction de novo.  Swett v. Schenk, 792 F.2d 1447, 1449 (9th Cir.1986).

A. Officer of the United States
Under 28 U.S.C. Sec. 1442(a)(1) (1982):

9
A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

10
(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

11
Baucus and Williams as officers of the United States may remove an action from state to federal court.  See Hill Parents Ass'n v. Giaimo, 287 F.Supp. 98, 99 (D.Conn.1968) (member of Congress is an "Officer of the United States" under Sec. 1442(a)(1));  Preston v. Edmondson, 263 F.Supp. 370, 372 (N.D.Okla.1967).

B. Under Color of Office

12
The claims against these defendants arose from their service as members of Congress.  The statute allows removal for "... any act under color of such office...."  See 28 U.S.C. Sec. 1442(a)(1) (1982).  They acted in their capacities as federal officers and they assert this as a defense.  See Saul v. Larsen, 847 F.2d 573, 575 (9th Cir.1988);  Swett, 792 F.2d at 1450.

13
We have some difficulty distilling the substance behind Richards' vague allegations.  Nonetheless, her case appears to fall within the "color of office" test.  Any claims outside this category were properly removed as pendent to the other claims.  See Murphy v. Kodz, 351 F.2d 163, 166 (9th Cir.1965) (pendent jurisdiction where state claim so related to federal claim that it represents same cause of action).

II. Removal of the Claims Against Harper

14
Richards argues that lack of service on Harper made removal improper.

A. Section 1441(c) Removal

15
28 U.S.C. Sec. 1441(c) (1982) would permit removal of the claim against Harper if service had occurred.  That section states:

16
Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.

17
The claims against Baucus and Williams are separate and independent of those against Harper.  See Am. Fire & Casualty Co. v. Finn, 341 U.S. 6, 13-14, 71 S.Ct. 534, 539-540, 95 L.Ed. 702 (1951) (claims not separate and independent where they originate from single wrong);  Emrich v. Touche Ross & Co., 846 F.2d 1190, 1197 (9th Cir.1988) ("separate wrongs").  Richards alleges harm by each legislator from separate acts or failures to act.

B. Lack of Service of Process

18
Lack of service of process on Harper could present difficulty.  He responds that 28 U.S.C. Secs. 1447(a) and 1448 give the district court power to complete the service of process initiated in state court.1

19
Although Sec. 1448 appears to support his argument our precedent holds otherwise.  In Beecher v. Wallace, 381 F.2d 372, 373 (9th Cir.1967), we concluded that where the plaintiff has not served the defendant with process prior to removal, the district court has no power to complete the service.  Rather, the court must issue new process pursuant to Fed.R.Civ.P. 4. Id.

20
Although the court did not issue new process, we agree with its determination that Harper waived the lack of service.  After removal, federal rather than state law governs the course of the later proceedings.  Granny Goose Foods, Inc. v. Teamsters Local 70, 415 U.S. 423, 437, 94 S.Ct. 1113, 1123, 39 L.Ed.2d 435 (1974);  Savarese v. Edrick Transfer & Storage, Inc., 513 F.2d 140, 144 n. 6 (9th Cir.1975).  Harper made a general appearance, filed a responsive pleading without disputing personal jurisdiction, and does not question lack of service in his brief on appeal.  He waived any defect in service.  Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987);  Savarese, 513 F.2d at 145.    Removal of the Harper claim was proper.

III. Court-Appointed Counsel

21
Richards disputes the court's refusal to appoint counsel.  The court under 28 U.S.C. Sec. 1915(d) may designate counsel to represent an indigent civil litigant.  We review its denial for abuse of discretion.

22
Richards failed to demonstrate the exceptional circumstances necessary for appointment of counsel.  A finding of exceptional circumstances requires an evaluation of both "the likelihood of success on the merits and the ability of the petitioner to articulate [her] claims pro se in light of the complexity of the legal issues involved."    Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.1983).

23
Richards has demonstrated no likelihood of success on the merits.  In fact, the court concluded that she brought a frivolous action.  We affirm the denial of her motion.

IV. Dismissal of Williams

24
The court dismissed Williams.  Dismissal is appropriate only if Richards could prove no facts in support of her claim to entitle her to relief.  See Bergquist v. County of Cochise, 806 F.2d 1364, 1367 (9th Cir.1986).  We review de novo.  Id.

25
Richards alleges vaguely that all defendants, including Williams, are somehow involved in the discriminatory selection of clergy by the Methodist Church.  Although she alleges blacklisting, malfeasance, and retaliation with government services, she seems to complain that Williams failed to help her.  She also alleges defamation.

26
Even under our liberal standard for evaluating the dismissal of a pro se action, the court concluded correctly that Richards' vague and conclusory allegations were insufficient.  See Mann v. City of Tucson, Dept. of Police, 782 F.2d 790, 793 (9th Cir.1986) (charges beyond negligence were entirely conclusory and unsupported by facts alleged in complaint).  In Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.1982), we dismissed a pro se civil rights complaint because it lacked specific factual allegations showing the defendants' participation in the alleged discriminatory practice.  That occurred here.  We do not supply essential elements of a claim that were not initially pleaded.  Soffer v. City of Costa Mesa, 798 F.2d 361, 363 (9th Cir.1986);  Ivey, 673 F.2d at 268.

27
Williams' failure to assist Richards was neither inappropriate nor actionable.  See McDonough v. Ney, 599 F.Supp. at 683 (failure to intervene not actionable).  The court concluded correctly that Richards could prove no set of facts to entitle her to relief.2

28
V. Summary Judgment of Claims for Defendants Baucus and Harper

29
She also appeals the court's grant of summary judgment for Baucus and Harper.  We review de novo.

30
These claims mirror those against Williams.  She also alleges that Baucus planned with church authorities to remove her as a candidate for church office.  She claims that he failed to control his employee, Fitzgerald, and that Fitzgerald harassed her in her attempts to gain employment, stabilize her housing, and obtain adequate response to her needs.  She alleges that Harper joined in this harassment.

31
Baucus was unaware of the matters alleged.  His only contact with her occurred when members of his staff attempted to assist her.  He never dealt with her directly.  Nor has Harper ever taken any action affecting her employment or placement activities.

32
The court appropriately granted summary judgment.  Rule 56(e) requires going beyond the pleadings and by affidavits (or by depositions, answers to interrogatories, and admissions on file) designating specific facts showing a genuine issue for trial.  Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553-2554, 91 L.Ed.2d 265 (1986);  Coverdell v. Dep't of Social & Health Services, 834 F.2d 758, 769 (9th Cir.1987).  This Richards failed to do.

33
AFFIRMED.

*
 The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a)

1
 28 U.S.C. Sec. 1447(a) (1982) states:
"In any case removed from a State court, the district court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the State court or otherwise."
28 U.S.C. Sec. 1448 (1982) states:
"In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proved to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.
This section shall not deprive any defendant upon whom process is served after removal of his right to move to remand the case."

2
 The court also granted dismissal because of the qualified immunity available for government officials.  See Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987);  Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) ("[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.").  We agree with the court, but choose to rest our holding on the grounds discussed above


996 So.2d 1072 (2008)
Heather Cook LEMAN
v.
Michael David LEMAN, ABC Insurance Company, Melvin G. Ripp, Jr., DEF Insurance Company, Fred G. Lake and GHI Insurance Company.
No. 2008-CC-2058.
Supreme Court of Louisiana.
November 10, 2008.
Denied.
KNOLL, J., would grant.


9 F.3d 1438
UNITED STATES of America, Plaintiff-Appellee,v.Nilo Medina CUETO, Defendant-Appellant.
No. 92-50186.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Nov. 2, 1993.Decided Nov. 23, 1993.

Michael B. Dashjian, Law Offices of Michael B. Dashjian, Thousand Oaks, CA, for defendant-appellant.
Lawrence S. Middleton, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before JAMES R. BROWNING, BEEZER, and TROTT, Circuit Judges.
TROTT, Circuit Judge:

1
Nilo Cueto pled guilty to one count of attempted possession with intent to distribute methamphetamine and two counts of possession with intent to distribute methamphetamine and cocaine.   Cueto raises four challenges to his sentence on appeal:  (1) he is entitled to a one-level reduction for acceptance of responsibility because the 1992 amendment to Sentencing Guideline § 3E1.1 should apply retroactively;  (2) the district court erred by adding a weapon enhancement to a base offense level determined by aggregating the drug quantity from all three counts;  (3) the district court erred by not granting a downward departure for substantial assistance to the government, even though the government never made the required motion;  and (4) due process requires the district court to find that a defendant had the mens rea to be involved with a specific quantity of drugs before imposing a mandatory minimum sentence.   We have jurisdiction pursuant to 18 U.S.C. § 3742, and we affirm his sentence.

2
* In May of 1991, Customs Inspectors at Anchorage International Airport discovered a package containing a wooden statue filled with 173 grams of methamphetamine.   Customs Agents removed the methamphetamine, sealed a substitute substance into the statue, and delivered the package to its intended destination, a video store in Glendale, California.   An agent told a video store employee to call the telephone number on the package and tell the person who answered the phone that it had been delivered.   Shortly thereafter, Cueto and his niece arrived at the store and claimed the package.   Customs Agents stopped and arrested them.

3
Cueto was released on bail.   He subsequently tested positive for cocaine on two occasions, and then failed to report for a required drug test.   On July 25, 1991, the district court issued a warrant for Cueto's arrest for violating conditions of his bond.

4
United States Deputy Marshals eventually found Cueto with four other individuals in a motel room in Monrovia, California.   The Marshals also found a 9mm semi-automatic Uzi with a loaded carbine, a 9mm Barretta pistol in Cueto's jacket in the closet, and a brown briefcase under the bed where Cueto was lying.   Inside the briefcase, the Marshals discovered eight "pay-owe" sheets bearing Cueto's name and detailing drug transactions, several 9mm rounds, and seventeen plastic baggies containing cocaine.   They also discovered fourteen additional baggies of cocaine in three large birthday cards ready to be mailed.   Methamphetamine was also found in a sunglasses case and in baggies near the sink.

5
As part of a plea agreement, Cueto pled guilty to the following three counts on October 7, 1991:  (1) attempted possession with intent to distribute 174 grams of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1);  (2) possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1);  and (3) possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1).

6
The district court sentenced Cueto on March 9, 1992.   The court followed the presentence report by combining the quantities of methamphetamine and cocaine charged in the indictment.   The court found an equivalent aggregate of 9607.94 grams of cocaine.   Based on this total, the district court determined Cueto's base offense level to be 32.   The court added two levels for Cueto's possession of a firearm during the commission of count three.   See U.S. Sentencing Comm'n, Guidelines Manual § 2D1.1(b) (Nov.1991) (hereinafter "U.S.S.G.").   The district court subtracted two levels for acceptance of responsibility.   See U.S.S.G. § 3E1.1 (Nov.1991).   Because Cueto had no prior record, the court found that he fell within Criminal History Category I.

7
Based on a final offense level of 32 and Criminal History Category of I, the sentencing range was 121 to 151 months.   The court sentenced Cueto to 121 months in custody and five years of supervised release because of his age, prior history, and small children.   The mandatory minimum sentence was ten years.   See 21 U.S.C. § 841(b)(1)(A)(viii) (1988).

II

8
When the district court sentenced Cueto on March 9, 1992, the court gave him a two-level reduction for acceptance of responsibility.   See U.S.S.G. § 3E1.1 (Nov.1991).   On November 1, 1992, that section was amended to permit an additional one-level reduction for acceptance of responsibility, if the defendant "assisted authorities in the investigation or prosecution of his own misconduct."   U.S.S.G. § 3E1.1(b) (Nov.1992);  see also U.S.S.G.App. C, amend. 459 (Nov.1992).   Cueto argues the amendment should be applied retroactively, and therefore, he is entitled to an additional one-level reduction.   The legality of a sentence is reviewed de novo, United States v. Fine, 975 F.2d 596, 599 (9th Cir.1992) (en banc), and we reject Cueto's claim.

9
Absent an ex post facto problem, the district court must apply the version of the Guidelines in effect at the time of sentencing.   See United States v. Robinson, 958 F.2d 268, 272 (9th Cir.1992);  see also 18 U.S.C. § 3553(a)(4)-(5) (1988).   Courts have discretion to reduce a previously imposed term of imprisonment when the Sentencing Commission reduces the sentencing range, and the reduction is "consistent with applicable policy statements issued by the Sentencing Commission."  18 U.S.C. § 3582(c)(2) (1988).   Section 1B1.10(a) of the 1992 Sentencing Guidelines states that if an amendment is not specifically listed in U.S.S.G. § 1B1.10(d), a reduction is not consistent with the Sentencing Commission's policy statement.   Section 1B1.10(d) lists eleven amendments that became effective on November 1, 1992, but it did not include the amendment to U.S.S.G. § 3E1.1.   Therefore, the 1992 amendment to § 3E1.1 cannot be applied retroactively.   See United States v. Rodriguez, 989 F.2d 583, 587-88 (2d Cir.1993) (refusing to apply amended § 3E1.1 retroactively because it was not listed in § 1B1.10(d)).

10
This result is consistent with our decision in United States v. Mooneyham, 938 F.2d 139 (9th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 443, 116 L.Ed.2d 461 (1991).   In Mooneyham, we held that an amendment allowing career criminals to receive downward adjustment for acceptance of responsibility could not be applied retroactively because it was not listed in U.S.S.G. § 1B1.10(d).  Id. at 140-41.

11
Based on our reasoning in Mooneyham, we agree with the Second Circuit that the 1992 amendment to § 3E1.1 should not be applied retroactively.   Therefore, Cueto's claim fails.1

III

12
Cueto argues the district court erred in applying the two-level weapon enhancement to the base offense level (32) corresponding to the aggregated drug quantity from counts one through three.   Because no weapon was present when Cueto was arrested for the crime charged in count one, he contends the weapon enhancement may not be applied to that drug quantity.   We review de novo the district court's application of the Sentencing Guidelines.  United States v. Fagan, 996 F.2d 1009, 1017 (9th Cir.1993).

13
To determine the base offense level for multiple drug violations, "the offense level applicable to a Group is the offense level corresponding to the aggregated quantity, determined in accordance with Chapter Two [i.e., the Drug Quantity Table]."  U.S.S.G. § 3D1.3(b) (Nov.1991).   The commentary states:  "Determine whether the specific offense characteristics [e.g., the weapons enhancement of U.S.S.G. § 2D1.1(b) ] ... apply based upon the combined offense behavior taken as a whole."   U.S.S.G. § 3D1.3, comment.  (n. 3) (emphasis added);  see also U.S.S.G. Ch. 3, Pt. D., intro. comment.   Thus, the commentary directly refutes Cueto's claim, and the district court did not err in applying the two-level weapon enhancement to the offense level corresponding to the aggregated drug quantity.

IV

14
Cueto sought a two-level reduction under U.S.S.G. § 5K1.1 for substantial assistance to the government.   Section 5K1.1 allows a court to depart "[u]pon the motion of the government."   Because the government did not make such a motion, the district court did not grant any reduction for substantial assistance.

15
Cueto, however, argues the Sentencing Commission exceeded its authority by requiring a government motion before the court can depart.   Congress specifically required a government motion for imposing a sentence below the statutory minimum based on substantial assistance in 18 U.S.C. § 3553(e), but Congress did not require a government motion under 28 U.S.C. § 994(n), the statutory basis for U.S.S.G. § 5K1.1.   Rather, Congress directed the Sentencing Commission to "assure that the guidelines reflect the general appropriateness of imposing a lower sentence ... to take into account a defendant's substantial assistance" to the government.  28 U.S.C. § 994(n) (1988).   Cueto argues that because Congress required a government motion in 18 U.S.C. § 3553(e), but not in 28 U.S.C. § 994(n), the Sentencing Commission cannot require a government motion under 5K1.1.

16
In United States v. Ayarza, 874 F.2d 647, 653 n. 2 (9th Cir.1989), cert. denied, 493 U.S. 1047, 110 S.Ct. 847, 107 L.Ed.2d 841 (1990), this court stated:  "We believe that the Sentencing Commission did not exceed its authority in drafting such a requirement [as part of § 5K1.1] in view of the fact that Congress itself drafted Section 3553 the same way."   See also United States v. Shrewsberry, 980 F.2d 1296, 1297 (9th Cir.1992) (holding that district court has no authority to grant a downward departure under § 5K1.1 without a government motion), cert. denied, --- U.S. ----, 114 S.Ct. 120, 126 L.Ed.2d 84 (1993).

17
The Supreme Court's opinion in Wade v. United States, --- U.S. ----, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992), further undermines Cueto's claim.   In Wade, the Court recognized that § 5K1.1 limits the district court's authority to grant a downward departure absent a government motion.  Id. at ----, 112 S.Ct. at 1842-43.   The Court did not suggest this requirement was unauthorized.   The Court, however, did hold that district courts have "authority to review a prosecutor's refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive."  Id. at ----, 112 S.Ct. at 1843-44.

18
On its face, we see no reason why a government motion requirement frustrates the goal of 28 U.S.C. § 994(n).   Obviously, the best judge of a defendant's assistance to the government is the government itself.   Because § 5K1.1 requires a government motion before the district court may grant a downward departure, and because Cueto did not allege that the government's refusal was based on an unconstitutional motive, the district court properly denied his request.

V

19
Cueto claims that application of the ten-year mandatory minimum sentence provision of 21 U.S.C. § 841(b) violates the Due Process Clause of the Fourteenth Amendment, unless the district court finds that the defendant had sufficient knowledge of the quantity of drugs involved in the crime.   Cueto concedes we only need to reach this issue if we remand for resentencing.   We note that the district court properly sentenced Cueto at Offense Level 32 of the Guidelines Sentencing Table which prescribes a minimum sentence of 121 months, one month more than the mandatory minimum.   See U.S.S.G. Ch. 5, Pt. A (Nov.1991).   Because we are not remanding the case and because the mandatory minimum sentence was not applied to Cueto, we need not address Cueto's argument.2

VI

20
The sentence imposed by the district court is AFFIRMED.

1
 For the reasons previously discussed, we also deny Cueto's Motion for Modification of Term of Imprisonment filed on April 16, 1993

2
 Although we do not decide the issue, we note that Cueto's reliance on Judge Weinstein's opinion in United States v. Ekwunoh, 813 F.Supp. 168 (E.D.N.Y.1993), may be misguided in light of the failure of this controversial interpretation of the drug sentencing laws to gain acceptance at the circuit level.   See United States v. Pineda, 847 F.2d 64 (2d Cir.1988) (imposition of minimum sentence under 21 U.S.C. § 841 without showing knowledge of quantity does not violate due process);  see also United States v. Klein, 860 F.2d 1489 (9th Cir.1988)


        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 15-1342V
                                     Filed: March 23, 2017
                                         UNPUBLISHED

****************************
SIMRAT SURI,                              *
                                          *
                     Petitioner,          *
v.                                        *      Joint Stipulation on Damages;
                                          *      Influenza Vaccine; Tendinopathy;
SECRETARY OF HEALTH                       *      Shoulder Injury Related to Vaccine
AND HUMAN SERVICES,                       *      Administration (“SIRVA”);
                                          *      Special Processing Unit (“SPU”)
                     Respondent.          *
                                          *
****************************
Paul Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Mallori Openchowski, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

        On November 6, 2015, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleged that she suffered tendinopathy caused in fact by the
influenza vaccine she received on October 8, 2014. Petition at 1, ¶¶ 2, 16; see also
Stipulation, filed Mar. 23, 2017, at ¶¶ 1, 2, 4. Petitioner further alleged that she received
the influenza vaccine in the United States, has suffered the residual effects of her injury
for more than six months, and has never received compensation for her injury, alleged
as vaccine caused. Petition at ¶¶ 2, 12, 17; see also Stipulation at ¶¶ 3-5.
“Respondent denies that the flu vaccine caused petitioner’s alleged SIRVA or any other
injury and further denies that her current disabilities are a sequela of a vaccine-related
injury.” Stipulation at ¶ 6.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.

2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
        Nevertheless, on March 23, 2017, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. The undersigned
finds the stipulation reasonable and adopts it as the decision of the Court in awarding
damages, on the terms set forth therein.

      The parties stipulate that petitioner shall receive a payment of $101,810.75 as
follows:

              1. A lump sum payment of $97,000.00 in the form of a check payable
solely to petitioner;

           2. A lump sum payment of $4,810.75, which amount represents
reimbursement of a Medicaid lien, in the form of a check payable jointly to petitioner
and

                             New York State Department of Health
                                      P.O. Box 415874
                                  Boston, MA 02241-5874

Stipulation at ¶ 8. Petitioner agrees to endorse this check to the State of New York.
Id. This amount represents compensation for all items of damages that would be
available under § 15(a).

       The undersigned approves the requested amount for petitioner’s compensation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment in accordance with this decision.3

IT IS SO ORDERED.

                                          s/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          Chief Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.

                                                      2


366 Pa. 347 (1951)
Fisher
v.
Sheppard (et al., Appellant).
Supreme Court of Pennsylvania.
Argued October 3, 1950.
January 2, 1951.
Before DREW, C.J., STERN, STEARNE, JONES, LADNER and CHIDSEY, JJ.
*348 J. Campbell Brandon, with him W.D. Brandon, Hugh S. Millar and Brandon & Brandon, for appellant.
Luther C. Braham and John C. Dillon, Jr., with them Zeno F. Henninger, and Galbreath, Braham & Gregg, for appellees.
OPINION BY MR. JUSTICE CHIDSEY, January 2, 1951:
Abel Fisher and Emma Fisher, his wife, appellees, brought this action in trespass against Floyd Sheppard, Clyde Sheppard and Carlton Schneider to recover damages sustained when a tractor-trailer operated by Floyd Sheppard crashed into the rear of their building. GMC Truck and Coach Division, General Motors Corporation, appellant, was made an additional defendant, assertedly for the reason that the tractor purchased by the Sheppards from it was defective and that such defect was the proximate cause of the accident. A jury returned a verdict against the original defendants and appellant, providing therein that the former should pay 75% and appellant 25% thereof. A motion for a new trial was filed by the original defendants. Motion for judgment non obstante veredicto was filed by the additional defendant. The court below awarded a new trial. This appeal is from the refusal to enter a judgment non obstante veredicto in favor of the additional defendant.
Floyd Sheppard and Clyde Sheppard, on December 13, 1947, were the owners of a GMC tractor and Trailmobile trailer in which as agents of the defendant Schneider they were transporting 33,400 pounds of steel through the City of Butler. Floyd Sheppard was operating the vehicle. His equipment was admittedly overloaded, in violation of the laws of this Commonwealth and in excess of the maximum load of the vehicle as determined by the manufacturer, the additional *349 defendant and appellant here. He had left the Allegheny Ludlum Steel Company plant at West Leechburg about 1:00 a.m. on the morning of December 13, 1947, destined for Detroit, Michigan. Center Avenue in the City of Butler is a long hill. When at least five or six blocks from the top of the hill, he changed his transmission into second gear and turned a button on the panel of the dashboard which placed the truck in low range. He proceeded toward the top of the hill at a speed from three to six miles per hour, and as he reached the crest thereof he was traveling seven to eight miles per hour. He continued on approximately one-quarter of a block and was on a curve when he heard a grinding noise near the transmission and the tractor slipped out of gear. He gained momentum as he proceeded downward and endeavored to use his brakes, but did not have sufficient air. Being unable to stop the tractor-trailer, he kept his grasp on the wheel and endeavored to maintain control, but was unable to negotiate a turn at the foot of the hill and crashed into the rear of appellees' building.
Appellant's principal contention is that the evidence did not establish that the tractor was faulty either in design or construction.
The position of the original defendants, appellees, as regards proof of appellant's negligence is thus stated: "As you shift from your high to low range, the shift is accomplished by use of air pressure, and if [in] the attempt to get the truck back into gear, the air pressure is exhausted due to the breakdown of certain parts in the differential, sufficient evidence has been elicited to warrant reasonable men in declaring this is the negligence that caused the wreck." The theory of negligence appears to be that, notwithstanding a successful shift by Sheppard, a defective sleeve in the differential broke causing the gear to slip out *350 and there was not sufficient air pressure remaining to force the gear back into proper position. The basis of the entire theory is proof of a defective sleeve.
We are of opinion that the evidence is not sufficient to establish this basic fact. Certainly, proof of a broken sleeve itself, in the circumstances here presented, will not support a finding that it was defective prior to the collision of the tractor with the Fisher building. A finding that the break resulted from the terrific impact is equally probable. Where two conclusions can be had from given circumstances, one of which would create liability and the other negative liability, a jury may not be permitted to indulge in conjecture and negligence cannot be predicated thereon.
Appellees suggest that the testimony of Roy E. Anderson, a truck mechanic and repairman, and Paul Sipe, subsequent owner of the tractor, established that "the truck slipped out of gear due to a breakdown in the sleeve and fork in the differential." Careful review of the record does not reveal testimony in support of this assertion. Their testimony does not supply the necessary evidence.
Anderson, called by appellees as an expert, admitted, on preliminary cross-examination, that he could not give an opinion as regards what occurred without having seen the equipment and also that he could not form an opinion by having someone relate what occurred. He was not shown the equipment, but, nevertheless, testified that the grinding noise occurring after the differential slipped out of low range indicated it was trying to get back in, and also stated that a broken sleeve would permit the slip from low range into neutral. Anderson's testimony is clearly insufficient in that at no time did he state that in his opinion the sleeve was defective and that such defect brought about the unfortunate accident.
*351 Sipe testified that it was impossible to say whether the housing or the sleeve broke first. His testimony appears to establish only that after the accident the sleeve and housing were broken and that the axle was bent or broken.
There is no direct testimony establishing the existence of a defective sleeve. What is sought to be proved is that circumstances indicate the probability that the accident occurred as appellees theorize. "Affirmative proof of negligence by circumstantial evidence must be by evidence which precludes possibility of injury in any other way and is such that the only reasonable inference to be deduced therefrom is that the accident was caused by the negligence of the defendant in the manner alleged: Donaldson v. Pittsburgh Railways Co., 358 Pa. 33, 37, 55 A. 2d 759; Stauffer v. Railway Express Agency, Inc., 355 Pa. 24, 29, 47 A. 2d 817, 819:" Stanalonis v. Branch Motor Express Co., 358 Pa. 426, 428, 57 A. 2d 866. Certain it is that the evidence here adduced does not "so describe, picture or visualize what actually happened as to enable one fixed with the responsibility for ascertaining the facts to find that defendant was the culpable party: Skrutski v. Cochran, 341 Pa. 289, 291, 19 A. 2d 106:" Balducci v. Cutler, 354 Pa. 436, 439, 47 A. 2d 643, 644. See Stanalonis v. Branch Motor Express Co., supra.
The record does not contain evidence sufficient to establish liability on the part of the manufacturer, appellant. A verdict imposing liability would of necessity be based upon conjecture and surmise. These are not a substitute for proof: Stanalonis v. Branch Motor Express Co., supra.
Order reversed and judgment here entered for appellant.


395 F.Supp.2d 644 (2004)
COMMUNITY MENTAL HEALTH SERVICES OF BELMONT, HARRISON AND MONROE COUNTIES, OHIO Plaintiff,
v.
MENTAL HEALTH AND RECOVERY BOARD OF BELMONT, HARRISON AND MONROE COUNTIES, et al., Defendants.
No. C2-03-581.
United States District Court, S.D. Ohio, Eastern Division.
April 22, 2004.
*645 *646 *647 Harry Woodrow White, St. Clairsville, OH, for Plaintiff.
Franklin J. Hickman, Hickman & Lowder Co., L.P.A., Cleveland, OH, for Defendants.

OPINION AND ORDER
FROST, District Judge.
This matter is before the Court upon the Motion to Dismiss of Defendant Michael F. Hogan ("Hogan"), Director of the Ohio Department of Mental Health ("ODMH"), Both In His Official and Individual Capacities (Doc. # 70); Brief of Defendants MHR Board and Linda Pickenpaugh In Support of Motions to Dismiss and for Summary Judgment on Plaintiff's Second Amended Complaint (Doc. # 71); Plaintiff's Memorandum In Opposition to the Motions to Dismiss of Defendants Hayes and Hogan (Doc. # 75); Plaintiff's Memorandum In Opposition to the Motion to Dismiss or In The Alternative For Summary Judgment Of Defendants MHRB And Pickenpaugh (Doc. # 76); Reply Memorandum of Defendant Thomas Hayes In Support of Defendant's Motion to Dismiss (Doc. # 83); Reply Memorandum In Support of Defendant Hogan's Motion to Dismiss (Doc. # 84); Reply of MHR Board and Linda Pickenpaugh In Support of Defendants' Motion to Dismiss (Doc. # 85).

I. NATURE OF PROCEEDINGS

Plaintiff Community Mental Health Services of Belmont, Harrison and Monroe Counties, Ohio ("CMHS") Second Amended alleges four claims against defendants. All defendants have filed motions to dismiss plaintiff's claims for lack of subject matter jurisdiction and failure to state a claim for which relief may be granted. Additionally, Defendants Hogan and Hayes move the Court to dismiss plaintiff's claims against them in their individual capacity. Defendant MHRB argues that, as a political subdivision acting as an extension of the state, it is immune from liability pursuant to the 11th Amendment. Plaintiff opposes defendants' motions, arguing that plaintiff has set forth valid claims against defendants, individual defendants Hogan and Hayes are not entitled to qualified immunity, and that Defendants MHRB and Pickenpaugh are not entitled to 11th Amendment immunity.

II. FACTS

Plaintiff CMHS is a non-profit corporation organized in the State of Ohio whose principal purpose is to provide mental health services to the areas of Belmont, Harrison and Monroe counties. (Second Am. Compl. at 3, ¶ 6.) CMHS contracts with the Mental Health Recovery Board (the MHRB) to provide mental health services to both Medicaid and non-Medicaid recipients in the above counties. Id. at 5, ¶ 18. Pursuant to this contract, CMHS receives reimbursement for the mental health services that it has provided to Medicaid eligible individuals from the combination of federal, state and local matching funds. Id. ¶ 17.
Defendant MHRB is a political subdivision of the State of Ohio (defined in Ohio Revised Code § 340.01(B)). The MHRB receives Medicaid and other funds from the Ohio Department of Mental Health ("ODMH") for purpose of contracting with third parties to provide mental health services to individuals who are eligible for *648 Medicaid as well as individuals who are not Medicaid-eligible in the counties of Belmont, Harrison and Monroe, Ohio (the "District"). The MHRB has been designated to administer the community mental health services Medicaid program ("Community Medicaid Program") by Defendants Hogan and Hayes. (Second Am. Compl. at 3, ¶ 7). Defendant Pickenpaugh is the Executive Director of MHRB. Id. ¶ 8.
Defendant Hayes is the Director of the Ohio Department of Job and Family Services ("ODJFS"), the agency of the State of Ohio designated as the single state agency to administer Ohio's Medicaid program. (Second Am. Compl. at 3-4, ¶ 9.) Defendant Hogan is the Director of ODMH, which has been designated by ODJFS to administer the Community Medicaid Program. Id. at 4, ¶ 10.
In the state fiscal year ("SFY") 1998, the MHRB and the CMHS had a Medicaid contract in place to provide mental health services to both Medicaid and non-Medicaid eligible individuals. (Second Am. Compl. at 5, ¶ 18.) In SFY 1998, the CMHS also contracted with the MHRB to provide non-Medicaid services. Id. Submitted with the non-Medicaid contract was a budget which identified the funds available to pay for mental health services that CMHS would provide to Medicaid and non-Medicaid eligible individuals alike. (Sec. Am. Compl. at 5, ¶ 19.) During SFY 1998, the CMHS also had a "Provider Agreement" with ODJFS in place. Id. at ¶ 18.
In the fall of 1998, MHRB's auditors audited CMHS for SFY 1998. (Second Am. Compl. at 6, ¶ 22.) As part of the audit, the MHRB performed a "reconciliation," which determines whether a contractor, like CMHS, has provided more units of service than budgeted to Medicaid-eligible individuals and/or others, and whether the contractor's expenses for those services were less than those projected. Id. at ¶ 23. Upon the audit and reconciliation, MHRB's auditors determined that the CMHS should refund Medicaid Federal Financial Participation funds to the MHRB. CMHS repaid these funds. The MHRB audit was subsequently finalized and closed. Id. ¶ 24.
After the audit was closed the MHRB demanded that the CMHS re-pay Medicaid matching funds in the amount of $73,166.76 for SFY 1998. (Second Am. Compl. at 6, ¶ 26.) In May and June of 2003, the MHRB unilaterally withheld $10,000.00 each month from payments due CMHS from its SFY 2003 contract to repay the alleged Medicaid match overpayment until it received $73,166.67. Id. at 7, ¶ 27.
Thereafter, Defendant Hogan directed the MHRB to stop withholding payments from CMHS in accordance with ODJFS's request. (Second Am. Compl. at 7, ¶ 33.) The MHRB returned $20,000.00 to CMHS. Plaintiff submits that Defendant Hayes has threatened to take future action to recover funds paid to CMHS based upon its SFT 1998 audit. Id. at 35.
Plaintiff claims that on June 3, 2003, ODMH told CMHS that Hogan withheld approval of the MHRB's Mutual System Performance Agreement ("MSPA") because of the number of client grievances against CMHS. (Second Am. Compl. at 10, ¶ 48.) Additionally, plaintiff submits that on July 8, 2003, not less than six ODMH officials arrived at CMHS and attempted to conduct a search and seizure. Id. at ¶¶ 50-52. Plaintiff further states that ODMH contacted CMHS clients who had not requested such contact. Id. at ¶ 53.
First, Plaintiff claims that Defendants MHRB, ODMH and ODJFS deprived plaintiff of its rights within the meaning of *649 the Due Process Clause of the Fourteenth Amendment of the United States Constitution (the "Constitution") when defendants "unilaterally and intentionally misappropriated funds due and owing to plaintiff" for Medicaid services CMHS provided to the District. (Second Am. Compl. Count 1.) Plaintiff's Second Count sets forth a claim against MHRB and ODMH for the violation of plaintiff's due process rights by subjecting plaintiff to "continued harassment and interference with purported client rights investigations." Id. Count 2. Count Three of Plaintiff's Second Amended Complaint alleges that ODMH has violated plaintiff's right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment of the Constitution when ODMH arrived at plaintiff's facility and demanded access to its premises. Finally, Plaintiff claims that Defendants MHRB violated plaintiff's rights pursuant to the Fourth and Fourteenth Amendments by failing to train Defendant Pickenpaugh.
As stated infra, all defendants move the Court to dismiss all plaintiff's claims against defendants.

III. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(b)(6), a Complaint should be dismissed if it is clear that no relief could be granted under any set of facts that might be proved consistent with the pleadings. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). The rule permits courts to dismiss meritless cases which would otherwise waste judicial resources and result in unnecessary discovery. See Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). When considering a motion to dismiss pursuant to Rule 12(b)(6), a court must construe the complaint in a light most favorable to the plaintiff and accept all well-pleaded material allegations as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993).
A complaint need not set down in detail all the particularities of a plaintiff's claim against a defendant. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." The function of a complaint is to afford the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Dunn v. Tennessee, 697 F.2d 121, 125 (6th Cir.1982), cert. denied, 460 U.S. 1086, 103 S.Ct. 1778, 76 L.Ed.2d 349 (1983). However, the complaint "must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988). Bare assertions of legal conclusions are insufficient. See id.; Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir.1993).
That said, the Court will grant a motion for dismissal under Rule 12(b)(6) only if there is an absence of law to support a claim of the type made, or of facts sufficient to make a valid claim, or if on the face of the complaint there is an insurmountable bar to relief indicating that the plaintiff does not have a claim.

IV. DISCUSSION

Alleged Violation of Due Process In Connection With Misappropriation of Funds
CMHS alleges that its right to due process was violated when Medicaid payments were withheld by the MHRB after such withholding was allegedly "authorized" *650 by or at the purported direction of Defendant Hogan (Director of ODMH) and that Defendants ODJFS and Hayes ( Director of ODJFS) allowed the MHRB to collect alleged overpayment to CMHS by withholding money from Medicaid payments. Defendants argue that plaintiff's claim is impermissible under the Eleventh Amendment. The Court agrees.
The Eleventh Amendment bars all suits against unconsenting states or one of its agencies or departments. See Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Ohio has not waived its immunity to suit in federal court. State of Ohio v. Madeline Marie Nursing Homes No. 1 and No. 2, 694 F.2d 449, 460 (6th Cir.1982). Defendants ODMH and ODJFS are state agencies. Defendants Hogan and Hayes, acting as directors of these agencies are state officials. Thus, pursuant to the Eleventh Amendment, this Court does not have jurisdiction to adjudicate plaintiff's claims; Plaintiff's due process claims shall be dismissed. See Madeline Marie Nursing Homes No. 1 and No. 2, 694 F.2d at 457-458 (holding that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by Citizens of another State. It is also well established that even though a State is not named a party to the action, the suit may nonetheless be barred by the Eleventh Amendment).
Plaintiff cites to Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) to support its proposition that its due process claim is not barred by the Eleventh Amendment. Ex Parte Young exempts from Eleventh Amendment exclusion "claims seeking remedies designed to end a continuing violation of federal law." Id. at 68. Plaintiff argues there is an ongoing violation here, in that Ohio law affords CMHS no procedural protection from a future due process violation if defendants chose to take, or authorize the taking of, funds from CMHS. (Second Am. Compl. ¶ 61).
The exemption enumerated in Ex Parte Young is inapplicable here. In the case sub judice, it is uncontested that the funds withheld by the MHRB have been returned to plaintiff. (Def. Hogan Mot. Dismiss at 9.) Moreover, Defendant Hayes, in his letter to Hogan, directed the return of the withheld monies and unequivocally declared that any future withhold of any sums required a hearing. The letter states:
The CMH Board is withholding Medicaid payments owed to a Medicaid provider for Medicaid services without prior notice or hearing. All Medicaid providers are entitled to due process before any government agency can withhold payments due to the provider. Due process is also required for Medicaid providers that dispute their obligations to the Medicaid program arising from rates paid in the prior fiscal periods. A hearing must be afforded to any provider before funds are withheld.
ODMH will need to take corrective action against the CMH Board to cease its actions of withholding payments due to the Medicaid provider. Once the withholding by the CMH Board stops, ODJFS staff will work with ODMH to determine the most appropriate course of action which may include ODJFS conducting an administrative hearing on the matter.
(Second Am. Compl. Ex. A.) Upon receipt of Hayes's letter, Hogan directed the MHRB (by letter addressed to Pickenpaugh) to stop withholding payments from CMHS as recovery for past reconciliation of Medicaid match funds. Id. Exhibit B.
*651 The above evidence proves that defendants have fully returned the withheld funds to plaintiff and that no future withholding will occur without a hearing. Although plaintiff asserts that defendants continue to violate plaintiff's due process rights (Pl.'s Mem. Opp'n. at 10), Plaintiff fails to set forth how defendants continue to deprive plaintiff of due process, nor does plaintiff offer any evidence of such alleged violation. For example, plaintiff claims that Defendants Hayes and Hogan have "threatened to press forward with their unlawful taking of plaintiff's funds and unlawful investigation" (Pl.'s Mem. Opp'n. at 11) but plaintiff has not alleged any specific facts to support this contention.
The Eleventh Amendment mandates that any notice or declaratory relief against a state official must be ancillary to some sort of prospective relief to pass constitutional muster. See Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985); Cotton v. Mansour, 863 F.2d 1241 (6th Cir.1988). As this Court held, in Coleman v. Hairston, 1990 WL 482465, *5 (S.D.Ohio Aug. 9, 1990) [emphasis added]:
[T]he Supreme Court's and the Sixth Circuit's [E]leventh [A]mendment jurisprudence now focuses on the time that a court grants final relief, and whether, at that time, there is a violation of federal law that may be enjoined. See Green, 474 U.S. at 74, 106 S.Ct. 423. As long as the state defendant is now complying with federal law, there is no act or practice that we can declare illegal, nor can injunctive or notice relief be granted.
In the instant case, the state defendants are not engaged in any illegal activity. Even if plaintiff succeeds in establishing that the defendants' withholding of Medicaid funds violated plaintiff's due process rights, any relief sought by plaintiff for such violation is retrospective in nature. This Court does not have jurisdiction over plaintiff's claims. See Green, supra at 64 ([w]hen there is no continuing violation of federal law the Eleventh Amendment specifically precludes a federal court from issuing declaratory relief).
Plaintiff additionally disputes the assertion that the MHRB, as a political subdivision, is entitled to Eleventh Amendment immunity. The Court is cognizant of the fact that the Eleventh Amendment's bar to suit in federal court does not generally extend to counties and similar municipal corporations. See Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The protection of the Eleventh Amendment applies to political subdivisions of the state, however, when the political subdivision is acting as an extension of the state. Alkire v. Irving, 330 F.3d 802, 811-813 (6th Cir.2003).
The Eleventh Amendment protects the MHRB to the extent that the MHRB acts on behalf of ODJFS and ODMH in implementing the mental health Medicaid program. While the MHRB is an ADAMH Board created by county boards of commissioners pursuant to Ohio Rev.Code Chapter 340, its Medicaid role is defined by Ohio law. See Ohio Rev.Code § 5111.022 which establishes the authority of ODJFS to enter into interagency agreements the Medicaid program. See also Ohio Rev.Code § 5111.025 which authorizes the director of ODJFS to define the payment for Medicaid services provided by community mental health facilities and the role ADAMH boards in that process; Ohio Rev.Code § 5111.912 which defines the duty of the MHRB to pay match for community mental health Medicaid services.
The MHRB's role within the Medicaid the Belmont-Harrison-Monroe district on behalf of ODJFS, a state agency. The MHRB performs these duties under the *652 oversight and control of ODJFS. Pursuant to federal law, ODJFS must retain all discretion in the development of rules, policies and procedures in the Medicaid program. 42 C.F.R. § 431.10(e). The rules, policies and procedures of ODJFS are binding on all local agencies which administer the plan. 42 C.F.R. § 431.10(a)(2). It is evident that MHRB's role as a Medicaid provider is defined in state law and that the state has control over the MHRB's participation in the Medicaid program. See Alkire, 330 F.3d at 812-813.
Furthermore, under the Medicaid rules, state agencies like ODMH and ultimately ODFJS, are responsible for any Medicaid match which would ordinarily be paid by the MHRB. See Ohio Rev.Code § 5111.02; Ohio Administrative Code § 5101:3-27-05(A). Thus, the state is at risk for actions or inaction by the MHRB in its role as a Medicaid sub-recipient. As the MHRB is administering the Medicaid program on behalf the state, and is subject to the supervision and control of ODJFS, the Court determines that it is an extension of the state for Medicaid purposes. As an extension of the state, the MHRB is entitled to Eleventh Amendment immunity for actions arising from its role in the Medicaid program.[1]
The MHRB has returned all funds withheld from CMHS. The Court has before it Hayes's explicit directive to Hogan that the CMH Board return to plaintiff any withheld Medicaid payments. Hayes goes further to direct that all Medicaid providers are entitled to due process before any government agency can withhold payments due to the provider. (Second Am. Compl. Exhibit B.) Moreover, Hayes states "[a] hearing must be afforded to any provider before funds are withheld." Id. Upon receipt of this letter, Hogan directed Pickenpaugh to stop withholding payments from CMHS and to remit to CMHS any payments to date that have been withheld. (Second Am. Compl. Exhibit B.) The Court is satisfied that defendants are not committing any ongoing violation of plaintiff's right to due process.
Defendants have ceased withholding plaintiff's funds and have returned to plaintiff all funds previously withheld. Thus, this Court does not have jurisdiction to grant retrospective relief for this alleged constitutional violation. Moreover, although plaintiff claims to also be seeking prospective injunctive relief from defendants' alleged continuous constitutional violation, the Court finds no evidence that defendants are engaged in an ongoing constitutional violation warranting prospective relief. Thus, pursuant to the Eleventh Amendment, defendants' motion to dismiss plaintiff's due process claims against defendants is granted.
Alleged Violation of Due Process In Connection With Client Rights Investigation
Plaintiff's claim that Defendants MHRB and ODMH have deprived CMHS *653 of its liberty and property interests in its business by subjecting it to continued harassment and interference in connection with purported client rights investigations must be dismissed. Plaintiff is seeking declaratory and prospective relief requesting the Court to find: (1) that ODMH and MHRB, on behalf if ODMH, does not have the authority to conduct client rights investigations and (2) that the defendants must afford CMHS due process in their conduct of client rights investigations. (Second Am. Compl. Count 2).
Plaintiff attacks the authority of ODMH (and that of Defendant Hogan as Director of ODMH) to investigate client grievances. Such authority is dictated by state law. See Ohio Rev.Code Chapter 5119. Pursuant to Ohio law ODMH has the sole the power to establish a program to protect and promote the rights of persons receiving mental health services. Additionally, ODMH is required by the Ohio general assembly to investigate all client rights investigations. To determine whether ODMH has the right to conduct client rights investigations and whether the ODMH may delegate this responsibility to other agencies (like MHRB), would require this Court to both interpret Ohio law and determine whether a state agency is complying with state law. The Eleventh Amendment precludes this Court from doing so.
As discussed infra, the Eleventh Amendment bars all suits against unconsenting states or one of its agencies or departments, regardless of the nature of the relief sought. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Missouri v. Fiske, 290 U.S. 18, 27, 54 S.Ct. 18, 78 L.Ed. 145 (1933). Ohio has not waived its immunity to suit in federal court. State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449, 460 (6th Cir.1982). This Court does not have jurisdiction to determine the scope of authority that Ohio's legislature intended to bestow upon ODMH, a state agency.
Plaintiff's allegations against the MHRB in Count Two of the Second Amended Complaint also fail to state a claim against the MHRB. Plaintiff asserts that the MHRB failure to afford plaintiff a procedure through which it can contest client grievance investigations deprived plaintiff of due process. (Second Am. Compl. ¶ 66-67; Pl.'s Mem. Opp'n. at 15.) Nowhere, however, does plaintiff explain exactly what right they have been deprived of. There is simply no allegation of how the client rights investigations affected any right of plaintiff protected by the Constitution. In considering procedural due process claims, the Court first determines whether the interest at stake is within the Fourteenth Amendment's protection of liberty and property. See Ferencz v. Hairston, 119 F.3d 1244, 1247 (6th Cir.1997). Plaintiff's claimed "interest in the conduct of its business" is insufficient to set forth a claim for the deprivation of due process.
Alleged Unlawful Search and Seizure
Plaintiff's final claim; that any search by ODMH (and Hogan, as its Director) of plaintiff's premises, office, client records and information provided to employees violates plaintiff's right to be free from unreasonable searches and seizures, is insufficient to set forth a violation of the Fourth Amendment. At the outset, the Court notes that ODMH and Hogan have not engaged in an unreasonable search and seizure. According to Plaintiff's Second Amended Complaint, defendants attempted to conduct an unlawful search and seizure on July 8, 2003. (Second Am. Compl. ¶ 50.) Plaintiff has not alleged that defendants *654 unreasonably searched or seized anything on July 8, 2003.
Furthermore, as Defendant Hogan emphasizes, CMHS has not established that CMHS has a reasonable expectation of privacy in the CMHS health care facility, information given to CMHS employees and CMHS client records, when these things pertain to a client rights investigation. The determination of whether a reasonable expectation of privacy exists is determined by the totality of the circumstances, considering the degree of intrusion upon an individual's privacy and the degree to which the search is needed to protect a government interest. United States v. Knights, 534 U.S. 112, 118-119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001).
CMHS does not have a reasonable expectation of privacy in its clients' records. The clients themselves have the privacy expectation. On July 8, 2003, Hogan attempted to see client records for which Hogan had obtained signed releases. Hogan had the express authority from the clients to examine their records. CMHS does not have a Fourth Amendment right to prohibit Hogan from examining these records.
Furthermore, during an investigation into client rights CMHS's privacy right in its premises and information provided to its employees is outweighed by the government interest in protecting client rights. See Blue v. Koren, 72 F.3d 1075, 1081 (2nd Cir.1995) (nursing home search involving matters related to a health care facility's compliance with patient care rules and regulations the facility's right to privacy is virtually none existent.) Defendant Hogan is responsible, pursuant to Ohio law, for protecting and promoting the rights of persons receiving mental health services. See Ohio Rev.Code Ch. 15. The General Assembly has granted Hogan the authority to conduct investigations of client rights violations by obtaining all relevant information regarding the client grievance. Ohio Admin. Code 5122:2-1-02(G)(1)(f)-(g); 5122:2-1- 02(H)(2)(e)-(f). Ohio's statutory and regulatory scheme shows that the state places great importance upon the rights of persons receiving mental health services and intended those investigating alleged violations of clients' rights to have access to all information relevant to ensuring client rights.
The Court has determined that no search and seizure occurred on July 8, 2003. The Court has also determined that CMHS does not have a reasonable expectation of privacy in its premises, employee information and client records when such items are relevant to client rights investigations. Therefore, plaintiff's claim for unlawful search and seizure fails.[2]
Failure to Supervise/Failure to Train
Plaintiff's final claim, asserted against Defendants MHRB and Pickenpaugh (as its Director) alleges that MHRB's failed to train and supervise its employees, including Pickenpaugh, and that such failure resulted in the violation of plaintiff's constitutional rights. (Second *655 Am. Compl. Count Four.) At the outset, the Court finds that to the extent plaintiff's failure to train claim implicates defendant's appropriation of funds, policy development, allocation of resources and maintaining reserve accounts, the claim is dismissed. See Bogan v. Scott-Harris, 523 U.S. 44, 55-56, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998) (legislative acts such as discretionary, policymaking decisions implicating the budgetary priorities of the city and services the city provides to its constituents are entitled to immunity).
Plaintiff's remaining allegations, that Defendant MHRB allowed Defendant Pickenpaugh to "abuse the public trust" and "reduce available mental health services in the district" are insufficient to identify a deficiency in MHRB's training program that is closely related to plaintiff's ultimate injury. City of Canton v. Harris, 489 U.S. 378, 391, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), explains that for a policy or custom to be actionable under 42 U.S.C. § 1983, a plaintiff must allege a failure to train that reflects a "deliberate" or "conscious" choice by the municipality and that the identified deficiency in the training program is closely related to plaintiff's ultimate injury.
In its claim plaintiff identifies no allegation of intent nor any facts to allege the required nexus between the asserted failure to train and any constitutional violation alleged. Plaintiff has failed to set forth a failure to train/supervise claim against the MHRB.

V. CONCLUSION

For the foregoing reasons, Defendants' ODMH and Hogan motion to dismiss plaintiff's second amended complaint (doc. # 70) is GRANTED. As defendants' previous motion to dismiss (doc. # 34) is incorporated herein, the motion is MOOT and shall be removed from the docket. Defendants' ODJFS and Hayes motion to dismiss plaintiff's second amended complaint (doc. # 72) is GRANTED. As it is incorporated herein, defendant's previous motion to dismiss (doc. # 33) is MOOT and shall be removed from the Court's docket. Defendants' MHRB and Pickenpaugh's motion to dismiss plaintiff's second complaint (doc. # 71) is GRANTED. This case is hereby TERMINATED.
IT IS SO ORDERED.
NOTES
[1]  Plaintiffs' claims against Pickenpaugh are claims against the MHRB, thus the Eleventh Amendment protects both the MHRB and Pickenpaugh acting in her official capacity. Plaintiff's argument that Defendants MHRB and Pickenpaugh (as the Director of the MHRB) waived Eleventh Amendment protection by removing this case to federal court is not well-taken. Plaintiff's reliance on Lapides v. Bd. of Regents, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) to support this proposition is misplaced. In Lapides, the Supreme Court held that where the state legislature explicitly waives immunity to a state claim in state court, removal to federal court will be construed as a waiver of Eleventh Amendment immunity. 535 U.S. at 621, 122 S.Ct. 1640. In the instant case, the MHRB seeks Eleventh Amendment immunity only with respect to the MHRB's administration of the Medicaid program. The MHRB does not assert immunity to any state claim, thus Lapides is inapplicable.
[2]  The Court additionally notes that the plaintiff's mere speculation that ODMH will conduct an unreasonable search and seizure does not constitute a "continuing violation of federal law." Ex Parte Young, supra. Thus, plaintiff has failed to set forth a claim for prospective injunctive relief over which this Court would have jurisdiction under the Eleventh Amendment. Furthermore, whether the conduct of the defendants was authorized by Ohio Rev.Code Chapter 5119, or any other state statute, is a question of state law interpretation and the question of whether a state official violated state law in carrying out official responsibilities is a question for Ohio courts. See Pennhurst, 465 U.S. at 121, 104 S.Ct. 900.


253 N.W.2d 265 (1977)
Michael E. KOLL, Administrator of the Estate of David Joseph Koll, Deceased, and Michael E. Koll, Individually, Appellants,
v.
MANATT'S TRANSPORTATION CO., and Michael Manatt, Appellees.
No. 2-58076.
Supreme Court of Iowa.
April 20, 1977.
*267 Bierman & Bierman, P. C., Grinnell, for appellants.
A. Roger Witke and Thomas S. Reavely, Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, for appellees.
Heard before MOORE, C. J., and MASON, UHLENHOPP, HARRIS and McCORMICK, JJ.
HARRIS, Justice.
This wrongful death suit arose from a fatal accident in which a young workman lost his life July 13, 1972. Trial to a jury resulted in a defendant's verdict. This appeal challenges the "unavoidable accident" instruction, a trial court ruling striking certain specifications of negligence, and a trial court ruling denying a motion for permission to amend to conform with the proof. We do not reach a third assignment because it involves a matter not likely to recur. We reverse the trial court and remand the case for a new trial.
During June and July of 1972 Manatt's, Inc. was resurfacing the shoulder of Interstate Highway 80. At the scene was a truck owned by Manatt's Transportation Co. Manatt's Transportation Co. is a distinct legal entity from Manatt's, Inc., though management of the two corporations is identical. The truck was being driven by Michael Manatt, an employee of Manatt's Transportation Co. The truck was delivering gravel to a gravel spreader, referred to in the record as a "chipper."
The work consisted of spraying oil on the shoulder, depositing gravel over the oil, and rolling the gravel. A truck called an "oil distributor" was used to spray oil on the shoulder. The chipper followed the oil distributor and deposited gravel on the oil and the shoulder. In depositing gravel the chipper was coupled to the back of a dump truck filled with gravel. As the chipper proceeded down the shoulder it pulled the dump truck behind it. When a dump truck became unloaded it was detached from the chipper and another dump truck would then be backed up to the chipper for attachment. A line of loaded dump trucks was backed down the highway lane nearest the shoulder being repaired to await attachment. The dump trucks would be backed up when the drivers observed in their rearview mirrors the other trucks backing up. The only time a signalman was used was when a particular truck was to be attached to the chipper or at certain points when a particular truck was crossing a line of traffic.
A group of workmen made up a "patching crew" which followed the chipper and its attached dump truck. One of the crew's jobs was to stand on the shoulder and pull any gravel deposited on the highway onto the shoulder.
David Koll, plaintiff's decedent, (decedent) was a member of the patching crew. He had recently graduated from high school and thereafter began his employment with Manatt's, Inc. At approximately 3:30 p. m. July 13, 1972 the truck owned by Manatt's Transportation Co. and driven by Michael Manatt backed over decedent causing his death.
The truck was a tandem vehicle with a 14 foot dump box. It was equipped with a *268 back-up bell located on the right dual wheels. In backing, Michael Manatt used two attached rearview mirrors, one mounted on each side of the truck. Each mirror was approximately five inches wide and 15 inches high. When the accident occurred the truck was loaded with gravel and was in a line of trucks being backed toward the chipper.
Immediately prior to the accident the patching crew was caught up and closer to the trucks than normal. The crew was hurrying. Decedent was standing on the shoulder next to the pavement pulling rock from the pavement onto the shoulder.
Plaintiff contends the truck either struck decedent or his broom causing him to trip over the broom and fall into the path of the right rear wheels of the truck. Defendants contend decedent tripped over the broom of his own accord, fell to the pavement, and was then run over. There was much testimony the back-up bell on the truck was audible on the day of the accident. One member of the patching crew testified he did not recall hearing such a bell. Plaintiff is decedent's father and brings this action in his own behalf and as administrator of decedent's estate for wrongful death.
I. Over plaintiff's protest the trial court submitted the following jury instruction:
"Instruction No. 21. You are instructed that the law recognizes what is termed an unavoidable or inevitable accident. These terms do not mean that it was impossible to avoid an accident, but simply denote that the accident occurred without having been proximately caused by negligence.
"In this case there is testimony that the deceased, David Koll, tripped, stumbled or lurched into the path of the truck Michael Manatt was backing at a point in time when there was no time for the truck to stop. If you find that David Koll did so trip, stumble or lurch into the path of the truck Michael Manatt was backing and that said trip, stumble or lurch took David Koll from a position on the shoulder where he would not have been struck by the truck and caused him to enter and be upon the roadway in the path of the backing truck, then you may find that David Koll's death was an unavoidable accident not proximately caused by negligence, and if you so find your verdict would be for defendants on both counts of the petition of plaintiffs."
The unavoidable accident instruction has never found outright approval in our cases, but until now has managed to escape outright disapproval. In Cavanaugh v. Jepson, 167 N.W.2d 616, 622 (Iowa 1969) we said: "We have never gone so far as to condemn the doctrine of unavoidable accident, but it is virtually impossible to discover in our decisions any clear-cut approval of it." In Cavanaugh we reversed a judgment of the trial court for giving the instruction under circumstances similar to the instant case. We said the doctrine could have no application where the issue is which of two litigants was negligent.
Although our holding in Cavanaugh would in any event require reversal for giving the instruction in the instant case, in which negligence and contributory negligence were issues, we elect to base the reversal on an outright condemnation of the doctrine. In Cavanaugh, 167 N.W.2d at 622 we quoted from Butigan v. Yellow Cab Co., 49 Cal.2d 652, 658, 320 P.2d 500, 504, 65 A.L.R.2d 1, 6-7 (1958):
"* * * `In reality, the so-called defense of unavoidable accident has no legitimate place in our pleading. It appears to be an obsolete remnant from a time when damages for injuries to person or property directly caused by a voluntary act of the defendant could be recovered in an action of trespass and when strict liability would be imposed unless the defendant proved that the injury was caused through "inevitable accident" ' * * * The instruction is not only unnecessary, but it is also confusing."
We again concur in these sentiments. We think the time has come to eliminate the confusion caused by attempting to apply a doctrine which actually means nothing beyond a denial by a defendant that any negligence of his was a proximate cause of the injury. The instruction "* * * *269 merely restates a feature of the law of negligence which in substance is necessarily covered by proper instructions on negligence, burden of proof, and proximate cause * * *. [When given, it] * * * operates to overemphasize the defendant's case, and is apt to confuse and mislead." Annot., 65 A.L.R.2d 12, 21.
The instruction has elsewhere been disapproved. See Alaska Brick Co. v. McCoy, 400 P.2d 454 (Alaska); O'Donnell v. Maves, 103 Ariz. 28, 436 P.2d 577; Schoen v. Boulder Stage Lines, Inc., 159 Colo. 531, 412 P.2d 905; Schaub v. Linehan, 92 Idaho 332, 442 P.2d 742; Miller v. Alvey, 246 Ind. 560, 207 N.E.2d 633; Graham v. Rolandson, 150 Mont. 270, 435 P.2d 263; Fenton v. Aleshire, 238 Or. 24, 393 P.2d 217; Camaras v. Moran, 100 R.I. 717, 219 A.2d 487.
We join these states and hold it is error to give the unavoidable accident instruction. Such error was reversible in the instant case. Similar circumstances yielded a reversal in Cavanaugh, supra, where we merely questioned the worth of the instruction. These circumstances (the issue is which of two litigants was negligent) demand reversal here upon our disapproval of the instruction.
II. Plaintiff's petition alleged defendants were negligent in violating two provisions of both the federal and state safety standards statutes (OSHA and IOSHA).
Subparagraph 4c asserted defendants were negligent "[i]n violating section 88.4 of the Code of Iowa and 29 USC, § 654(a)(1)(2)."
Subparagraph 4d asserted defendants were negligent "[i]n violating federal occupational safety and health standards, § 1518.601(b)(4)(i)(ii) 36 Fed.Reg. 7386 (April 17, 1971) and Iowa departmental rules, bureau of labor 10.1(88)."
Evidence of these standards was excluded during trial. At the close of evidence the trial court sustained defendant's motion to strike the claimed violation of the standards as specifications of negligence. In his second assignment plaintiff contends violations of the standards are negligence per se, or, in the alternative, evidence of negligence. The trial court did not explain the basis for the rulings so we have no way of knowing their basis. The trial court may have believed OSHA and IOSHA standards did not bear on the question of defendant's negligence. The trial court may have believed no foundation was laid for their introduction. Of course if either view supports the trial court the assignment is without merit. We believe the standards were material and relevant on the question of defendant's negligence but the evidence was properly excluded and the specifications were properly stricken because there was no competent evidence of their violation.
The OSHA standards articulated in both federal and state provisions are identical. They provide:
"No employer shall use any motor vehicle equipment having an obstructed view to the rear unless: (i) the vehicle has a reverse signal alarm audible above the surrounding noise level or: (ii) the vehicle is backed up only when an observer signals that it is safe to do so."
These standards formed the basis for the specification of negligence alleged in paragraph 4d of plaintiff's petition.
We proceed then to consider whether violation of the standards was evidence of defendants' negligence. Violation of the OSHA standard would not directly give rise to a cause of action for plaintiff because decedent was not an employee of Manatt's Transportation Co., the alleged tort feasor.[1]Jeter v. St. Regis Paper Co., 507 F.2d 973 (5 Cir. 1975); Russell v. Bartley, 494 F.2d 334 (6 Cir. 1974); Skidmore v. Travelers Insurance Company, 356 F.Supp. 670 (E.D.La.1973); Hare v. Federal Compress and Warehouse Co., 359 F.Supp. 214 (N.D.Miss.1973). IOSHA should be interpreted similarly to OSHA under the principle federal interpretations are persuasive *270 when a state statute is patterned after a federal statute. See Saxton v. State, 206 N.W.2d 85, 86 (Iowa 1973) and authorities.
We have never been called upon to consider the effect on nonemployees of OSHA or IOSHA violations. But general principles have long been settled:
"* * * [I]f a statute lays down a rule or regulation of conduct specifically designed for the safety and protection of persons or property, injuries proximately resulting from its violation to one who, under the circumstances of the case, is within its purview, and free from contributory negligence, would be actionable, as for negligence per se. Such a violation of a positive statutory enactment need not involve the element of willfulness. It is of itself negligence. (Authorities).
"Cases of another class are illustrated by those holding that the violation of statutory or municipal regulations constituting `the law of the road' is prima facie, but not conclusively negligence. (Authorities). Generally speaking, the harm for which the action is brought must be of the kind which the statute was intended to prevent; and the person injured, in order to recover, must be within the class which it was intended to protect. (Authorities). But even though the injury complained of is not within the purview of the statute, the disregard of statutory duty may be a material fact, and evidence of negligence. (Authorities).
"A general statutory duty is ordinarily for the benefit of all persons who are likely to be exposed to injury from its non-observance. (Authorities)." Hansen v. Kemmish, 201 Iowa 1008, 1011-1012, 208 N.W. 277, 279 (1926).
We quoted Hansen with approval in Peters v. Lyons, 168 N.W.2d 759, 766 (Iowa 1969). We said:
"This is not the situation considered in Lattner v. Immaculate Conception Church, 255 Iowa 120, 129, 121 N.W.2d 639. There defendant urged the violation of a statute does not amount to negligence unless the plaintiff was a member of the class the statute is designed to protect and the harm is one the statute is designed to prevent. We recognized the rule has much support but declined to follow it, primarily on the authority of Hansen v. Kemmish, 201 Iowa 1008, 1012, 208 N.W. 277, 279; 45 A.L.R. 498, where the Iowa rule is stated: `A general statutory duty is ordinarily for the benefit of all persons who are likely to be exposed to injury from its nonobservance.' As between an injured party and the violator of a statute or ordinance, we adhere to those precedents. * * *."
Although we recognize our holdings on this question are not shared in all states they are not without support. See Prosser, Law of Torts, Fourth Ed., § 36, pp. 200-202; The Restatement of Torts Second, § 288B, Comment d.
Under these general principles we hold violation by an employer of an OSHA or IOSHA standard is negligence per se as to his employee. Such a violation is evidence of negligence as to all persons who are likely to be exposed to injury as a result of the violation. Plaintiff's decedent, though not an employee, was exposed to injury from the alleged violation in the instant case. Hence a violation of OSHA and IOSHA standards was evidence of negligence on the part of Manatt's Transportation Co. Assuming a proper foundation had been laid the trial court should have received the evidence and instructed the jury accordingly.
Defendant next argues there was no competent evidence the standards were violated and hence there was no foundation for admission of the testimony. We agree.
It will be noted the specific standards are alternative. They can be satisfied by either of two means: (1) providing a reverse signal alarm audible above surrounding noise level; or (2) providing an observer to signal the driver it is safe to back up. The parties agree no observer was provided. Defendant complied with the standard, if at all, by providing a reverse signal alarm. Defendant insists that every witness called at trial by either side testified there were back-up bells on the truck which were audible above *271 the surrounding noise level. Plaintiff on the other hand points to the testimony of one witness, Robert Lawrie, as showing a violation of the signal alarm requirement. Lawrie's testimony on the subject was as follows:
"Q. Do you recall immediately prior to Dave Koll's death hearing a bell on Mike Manatt's truck? A. No.
"Q. What experience, if any, did you have with back-up bells on the construction site? A. There were back-up bells on the construction site.
"Q. When would you hear these? A. Constantly. There wereevery vehicle to my knowledge had back-up bells on them and they were a constant clatter.
"* * *
"Q. How would you describe the noise level? Was it low, high, average? A. It was probably medium level, constant noise level.
"Q. With that noise level were you able to discern one backing truck from another backing truck, the back-up bells I'm referring to * * *? A. Yes. Due to relative intensity of the ringing sound. You could tell how close you were to a certain vehicle because of the volume of the bell."
Lawrie's statement he did not recall hearing a bell on Michael Manatt's truck immediately prior to the accident is the only evidence upon which plaintiff can rely to show a violation.
Courts have long wrestled with questions relating to the relative merits of positive and negative testimony. See II Wigmore on Evidence, Third Ed., § 664, pp. 777-782; 30 Am.Jur.2d, Evidence, § 1092, pp. 252-254. We considered the problem in many early cases including Lockridge v. Railway Company, 161 Iowa 74, 84-85, 140 N.W. 834, 837-838 (1913). In order for negative evidence to qualify as sufficient it must be shown the witness was so situated that in the ordinary course of events he would have heard or seen the fact had it occurred.
Lawrie's statement lacks this necessary foundation. Indeed it is highly doubtful Lawrie's statement even amounts to negative testimony at all. He did not testify the bell was not sounded nor that it was inaudible. He did not even testify directly he did not hear the bell. He merely testified he did not recall having heard the bell immediately prior to the accident. Most of all there is nothing to indicate the absence of recollection on the part of Lawrie would in any way indicate the bell was not sounded or was not audible.
Under these circumstances we hold evidence of OSHA and IOSHA standards was properly excluded not because they would not constitute evidence of negligence, but because no foundation was laid for their admission.
Plaintiff alternatively argues the trial court erred in striking specifications of OSHA and IOSHA standards relating to the general duty clause. Any evidence showing a violation of these standards related to the specific standards on backing a truck. Under both OSHA and IOSHA standards, where a specific section applies, the general duty clause ordinarily is inapplicable. American Smelting & R. Co. v. Occupational S. & H. R. Com'n, 501 F.2d 504, 512 (8 Cir. 1974). Manatt's Transportation Co. could not be deemed to violate the general duty clause by reason of violation of specific standards.
Plaintiff's second assignment is without merit.
III. Plaintiff separately complains of a denial of his application to amend his pleadings to conform with proof. This assignment need not be considered because it relates to a matter not likely to recur upon remand.
REVERSED AND REMANDED.
NOTES
[1]  There is no challenge to the legitimacy of the separate corporate identities of Manatt's, Inc., decedent's employer, and Manatt's Transportation Co., a defendant.