                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-1500

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                               Anthony Thomas Leonsaco,
                                      Appellant.

                                Filed December 1, 2014
                                       Affirmed
                                    Johnson, Judge

                             Kanabec County District Court
                                File No. 33-CR-12-361

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Barbara McFadden, Kanabec County Attorney, Reese Frederickson, Assistant County
Attorney, Mora, Minnesota 55051 (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Reyes,

Judge.
                        UNPUBLISHED OPINION

JOHNSON, Judge

       A Kanabec County jury found Anthony Thomas Leonsaco guilty of burglary,

aiding and abetting theft, and aiding and abetting criminal damage to property. Leonsaco

challenges the sufficiency of the evidence supporting the convictions. We affirm.

                                         FACTS

       Leonsaco’s convictions arise from a series of burglaries of cabins on Quamba

Lake in Kanabec County over the Memorial Day weekend in 2012. Leonsaco’s then-

fiancée, M.T., invited Leonsaco to stay with her family at her stepfather’s cabin. On

Friday night, M.T. stayed up with Leonsaco until 2:30 a.m. When she went to bed,

Leonsaco was drinking alone on the porch. Just before dawn Saturday morning, M.T.

awoke and found that Leonsaco still was awake and was talking with a man and two

women. She quarreled with one of the women until the guests left on foot. M.T. saw that

Leonsaco was drinking from an unusual bottle with a long, wide neck and that Bud Light

beer cans were strewn across the lawn.

       At approximately 7:00 a.m. Saturday morning, M.T.’s stepfather, D.K., awoke and

discovered that his van was parked in a different place from where he had left it the

previous evening. He also noticed that the seat had been adjusted and that the odometer

had gained 40 to 50 additional miles. D.K. found the keys to the van inside his cabin in

the usual place.

       D.K. then noticed that a next-door neighbor’s cabin appeared to have been

burglarized. He contacted law enforcement. Deputy Sheriff Cole Bangerter responded.

                                           2
Deputy Bangerter found that the unoccupied cabin, which belonged to N.E., was missing

several window screens. Deputy Bangerter determined that someone had entered the

cabin through a window where cinder blocks had been stacked on the ground below.

Inside the cabin, Deputy Bangerter saw that everything looked “out of place for a normal

cabin,” with papers scattered and cabinet doors left open.         Deputy Bangerter soon

discovered that two other nearby cabins, one belonging to W.C. and one belonging to

C.D., also had been burglarized. Deputy Bangerter observed that the three burglarized

cabins had been entered in similar ways and left in similar states of disarray.

       Deputy Bangerter’s investigation indicated that items were missing from each of

the three burglarized cabins. In W.C.’s cabin, the missing items included consumer

electronics, DVDs, and a bottle of Hungarian Tokaji wine, which has a distinctive long,

wide neck. W.C. testified at trial that he had purchased the bottle in Hungary. Deputy

Bangerter found an empty Tokaji bottle on the ground near the N.E. cabin. In W.C.’s

cabin, Deputy Bangerter also found an empty Bud Light can in the kitchen sink. W.C.

told the deputy that he does not drink Bud Light and that he did not have any Bud Light

in the cabin before the burglary. Subsequent testing determined that DNA found on the

beer can and on the Tokaji bottle matches Leonsaco’s DNA.              Each cabin’s owner

reported that consumer electronics and DVDs were missing. Another neighbor, C.M.,

reported that the tires on his vehicle had been slashed during the night while the vehicle

was parked in his driveway.

       In November 2012, the state charged Leonsaco with ten counts: (1) three counts of

second-degree burglary (one for each cabin), in violation of Minn. Stat. § 609.582,

                                             3
subds. 2(a)(1) and 2(a) (2010); (2) three counts of third-degree burglary (one for each

cabin), in violation of Minn. Stat. § 609.582, subd. 3; (3) one count of theft, in violation

of Minn. Stat. § 609.52, subds. 2(a)(1) and 3(3)(a) (2010); (4) one count of aiding and

abetting theft, in violation of Minn. Stat. § 609.52, subds. 2(a)(1) and 3(3)(a); (5) one

count of fourth-degree criminal damage to property, in violation of Minn. Stat. § 609.595,

subd. 3 (2010); and (6) one count of aiding and abetting fourth-degree criminal damage

to property, in violation of Minn. Stat. § 609.595, subd. 3.

       The case was tried to a jury in March 2013. The state called nine witnesses in its

case-in-chief: M.T., D.K., two cabin owners, a caretaker of one cabin, two deputy

sheriffs, and two forensic scientists. Leonsaco did not testify but called one witness,

M.T.’s mother, J.K.

       The jury found Leonsaco guilty of three counts of second-degree burglary, three

counts of third-degree burglary, aiding and abetting theft, and aiding and abetting

criminal damage to property. The jury found Leonsaco not guilty of theft and criminal

damage to property.      The district court entered judgment and imposed concurrent

sentences on three counts of second-degree burglary, one count of aiding and abetting

theft, and one count of aiding and abetting criminal damage to property, the longest being

26 months of imprisonment.        The district court did not adjudicate the third-degree

burglary offenses because they are lesser-included offenses. Leonsaco appeals.

                                     DECISION

       Leonsaco argues that the evidence is insufficient to support the jury’s verdicts with

respect to each conviction for which he was convicted and sentenced.

                                             4
      When considering a claim of insufficient evidence, this court conducts “a

painstaking analysis of the record to determine whether the evidence, when viewed in a

light most favorable to the conviction, was sufficient to permit the jurors to reach the

verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must

assume that “the jury believed the state’s witnesses and disbelieved any evidence to the

contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). “We will not disturb the

verdict if the jury, acting with due regard for the presumption of innocence” and the

requirement of proof beyond a reasonable doubt, could reasonably conclude the

defendant was guilty of the crime charged. Bernhardt v. State, 684 N.W.2d 465, 476-77

(Minn. 2004) (quotation omitted).

      In reviewing the sufficiency of the evidence, we apply a heightened standard of

review if the state’s evidence on one or more elements of an offense consists solely of

circumstantial evidence. State v. Porte, 832 N.W.2d 303, 309 (Minn. App. 2013) (citing

State v. Al-Naseer, 788 N.W.2d 469, 473-75 (Minn. 2010); State v. Leake, 699 N.W.2d

312, 319-20 (Minn. 2005); State v. Rhodes, 657 N.W.2d 823, 840 (Minn. 2003)). In this

case, it is undisputed that the state did not introduce any direct evidence that Leonsaco

committed burglary, theft, or criminal damage to property; no witness testified that he or

she actually saw Leonsaco commit any of the offenses. But the state introduced a

voluminous amount of circumstantial evidence linking Leonsaco to the charged offenses.

In closing argument, the prosecutor asked the jury to rely on that circumstantial evidence

to infer that Leonsaco committed the alleged offenses, either by himself or with others.

                                            5
Thus, it is appropriate for this court to apply the heightened standard of review applicable

to circumstantial evidence.

       When reviewing a conviction based on circumstantial evidence, we apply a two-

step test to determine the sufficiency of the evidence. State v. Moore, 846 N.W.2d 83, 88

(Minn. 2014).    First, we “identify the circumstances proved.”        Id. (citing State v.

Andersen, 784 N.W.2d 320, 329-30 (Minn. 2010)). “In identifying the circumstances

proved, we assume that the jury resolved any factual disputes in a manner that is

consistent with the jury’s verdict.” Id. (citing Andersen, 784 N.W.2d at 329). At the

second step of the circumstantial-evidence test, we “examine independently the

reasonableness of the inferences that might be drawn from the circumstances proved,”

and then “determine whether the circumstances proved are consistent with guilt and

inconsistent with any rational hypothesis except that of guilt.” Id. at 88 (quotations

omitted). We must consider the evidence as a whole and not examine each piece in

isolation. Andersen, 784 N.W.2d at 332.

       In this case, we note at the first step of the circumstantial-evidence test that the

state proved the following circumstances. The three burglarized cabins were in the same

vicinity and were unoccupied during the Memorial Day weekend. A similar method of

entry was used at each cabin. The interior of each cabin was left in similar states of

disarray, with similar items missing. At 10:30 p.m. on Friday night, the exterior of the

N.E. cabin had not been disturbed, but it had been disturbed when D.K. awoke Saturday

morning. When M.T. went to bed, Leonsaco stayed up. When she awoke a few hours

later, around dawn, a man and two women were outside with Leonsaco. Leonsaco was

                                             6
intoxicated and was drinking out of a bottle with a long, wide neck, and Bud Light beer

cans were strewn around the yard. In the W.C. cabin, an empty Bud Light beer can was

found in the sink, which contained the DNA of only one person, Leonsaco. Leonsaco’s

DNA was found on W.C.’s Tokaji bottle, which was found in the yard of the N.E. cabin.

The keys to D.K.’s van were inside his cabin in their usual place, but his van was parked

in a different place in the morning with 40 to 50 additional miles on the odometer. W.C.

reported that kitchen knives were stolen from his cabin. The tires on C.M.’s vehicle,

which was parked next to his own cabin, were punctured, apparently with a sharp knife.

M.T.’s mother, J.K., previously was engaged to C.M.

       Because Leonsaco was convicted of three different offenses, we apply the second

step of the circumstantial-evidence test separately to each offense.

A.     Burglary

       The jury found Leonsaco guilty of three counts of second-degree burglary and

three counts of third-degree burglary, but the district court adjudicated and imposed

sentences only on the three counts of second-degree burglary. See Minn. Stat. § 609.04

(2010); State v. Pflepsen, 590 N.W.2d 759, 765-66 (Minn. 1999); State v. LaTourelle,

343 N.W.2d 277, 284 (Minn. 1984). A person is guilty of second-degree burglary if he

enters a dwelling “without consent and with intent to commit a crime” or enters a

dwelling “without consent and commits a crime while in the building, either directly or as

an accomplice.” Minn. Stat. § 609.582, subd. 2(a)(1).

       During closing arguments, the prosecutor asked the jury to infer that Leonsaco

burglarized W.C.’s cabin, either alone or with a group, based on circumstantial evidence

                                             7
that his DNA was discovered on an empty beer can found in the kitchen sink and on

W.C.’s Tokaji bottle. The prosecutor asked the jury to infer that Leonsaco burglarized all

three cabins because the timing and manner of each burglary was so similar. The

prosecutor also asked the jury to infer that Leonsaco, as opposed to another person,

committed the burglaries because he was in a position to observe that the cabins were

empty over the Memorial Day weekend, which typically would be a busy time at the

lake, and because he was outside drinking all night and likely would have observed

another person commit the burglaries. These inferences are reasonable in light of the

circumstances proved, and the inferences are consistent with Leonsaco’s guilt.          See

Moore, 846 N.W.2d at 88.

       At the second step of the circumstantial-evidence test, we also must determine

whether there are reasonable inferences that are inconsistent with guilt. See id. Leonsaco

contends that the circumstances proved are inconsistent with his guilt based on two

alternative theories. First, he contends that the circumstantial evidence is consistent with

the inference that his early-morning guests burglarized the cabins without his assistance.

Specifically, he contends that his guests may have placed Leonsaco’s beer can in W.C.’s

cabin and taken W.C.’s Tokaji wine bottle from the cabin and given it to Leonsaco.

Second, Leonsaco contends that the evidence is consistent with the inference that he

participated in the burglary of only W.C.’s cabin but not the other two cabins. The

inferences Leonsaco wishes to draw from the circumstances proved by the state are not

reasonable inferences.     “The only rational hypothesis to be drawn” from the

circumstances proved is that Leonsaco, either by himself or with others, broke into the

                                             8
neighboring cabins and committed theft while inside each cabin. See Andersen, 784

N.W.2d at 332. We conclude that the circumstances proved are “consistent with guilt

and inconsistent with any rational hypothesis except that of guilt.” Id. at 330.

       Thus, the evidence is sufficient to support the three convictions of second-degree

burglary.

B.     Aiding and Abetting Theft

       The jury found Leonsaco guilty of one count of aiding and abetting theft.

Leonsaco argues that the evidence is insufficient to prove that he engaged in the

prohibited conduct and insufficient to prove that the value of stolen property exceeded

the statutory threshold of $1,000.

       1.     Evidence of Theft

       A person is guilty of theft if he “intentionally and without claim of right takes,

uses, transfers, conceals or retains possession of movable property of another without the

other’s consent and with intent to deprive the owner permanently of possession of the

property.” Minn. Stat. § 609.52, subd. 2(a)(1). “A person is criminally liable for a crime

committed by another if the person intentionally aids, advises, hires, counsels, or

conspires with or otherwise procures the other to commit the crime.”               Minn. Stat.

§ 609.05, subd. 1 (2010).

       During closing arguments, the prosecutor asked the jury to draw the inferences

described above in part A and, in addition, to infer that Leonsaco used D.K.’s van to pick

up his three guests and transport stolen property. The prosecutor noted that Leonsaco

was the tallest occupant of D.K.’s cabin and that the driver’s seat of the van was pushed

                                             9
back, the keys were located in the cabin, and the van had been driven 40 or 50 additional

miles. These inferences are reasonable in light of the circumstances proved, and the

inferences are consistent with Leonsaco’s guilt. See Moore, 846 N.W.2d at 88.

       Leonsaco contends that the evidence is consistent with the inference that he drove

D.K.’s van for a purpose other than to transport stolen property. We believe that the

inference Leonsaco wishes to draw from the circumstances proved by the state is not a

reasonable inference because no other circumstances support that conclusion. Again,

“the only rational hypothesis to be drawn” from the circumstances proved is that

Leonsaco, either by himself or with others, broke into the neighboring cabins and

committed theft while inside each cabin.          See Andersen, 784 N.W.2d at 332.    We

conclude that the circumstances proved are “consistent with guilt and inconsistent with

any rational hypothesis except that of guilt.” Id. at 330.

       2.     Evidence of Value of Property

       The statute under which Leonsaco was convicted requires the state to prove that

“the value of the property or services stolen is more than $1,000 but not more than

$5,000.”    Minn. Stat. § 609.52, subds. 2(a)(1) and 3(3)(a).      Theft crimes may be

consolidated, in which event the threshold value is determined on an aggregate basis.

Minn. Stat. § 609.52, subd. 3(5) (2010). The word “value,” as used in this statute, means

“the retail market value at the time of the theft, or if the retail market value cannot be

ascertained, the cost of replacement of the property within a reasonable time after the

theft.” Minn. Stat. § 609.52, subd. 1(3). The value of stolen goods may be determined

by “direct and circumstantial evidence bearing on the value of the item in the retail

                                             10
market.” State v. Stout, 273 N.W.2d 621, 623 (Minn. 1978) (quotation omitted). A jury

may rely on the testimony of the owner of the property concerning the approximate value

of the property. State v. Clipper, 429 N.W.2d 698, 700 (Minn. App. 1988). “[A]s long as

the evidence is adequate to show the fair market value of the property taken as being over

[the statutory threshold], the value element of the crime of theft is established.” State v.

Mastousek, 287 Minn. 344, 352, 178 N.W.2d 604, 609 (1970).

       In this case, N.E. and W.C. testified about the value of the property stolen from

their respective cabins in terms of dollar amounts. N.E. testified with specificity that the

total value of the items that were stolen from her cabin was $192.62. W.C. testified more

generally that “we kind of priced it out for the attorney’s office and it looked like it was

somewhere in the area of just about $1,000.” The caretaker of the third cabin, which

belongs to C.D., did not testify in terms of dollar amounts but did describe in detail the

property that was stolen; he testified that a DVD player and box of approximately 30 to

45 DVDs were missing.

       Leonsaco contends that W.C.’s testimony shows that the total value of the

property stolen from that cabin is no more than $620 and that the total loss is merely

$812.62, which is the sum of the amount of N.E.’s loss and the amount of W.C.’s loss, as

restated by Leonsaco. But Leonsaco’s contention disregards W.C.’s testimony that the

value of the property stolen from his cabin was “about $1,000.” The jury is permitted to

rely on that testimony. See Clipper, 729 N.W.2d at 700. We conclude that the evidence

is sufficient to prove that the total value of stolen property was more than $1,000. Thus,

                                            11
the evidence is sufficient to support the conviction of one count of aiding and abetting

theft.

C.       Aiding and Abetting Damage to Property

         The jury found Leonsaco guilty of one count of aiding and abetting fourth-degree

criminal damage to property. A person is guilty of fourth-degree criminal damage to

property if he “intentionally causes damage” to “another person’s physical property

without the other person’s consent.” Minn. Stat. § 609.595, subds. 1, 3. As stated above,

“A person is criminally liable for a crime committed by another if the person

intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the

other to commit the crime.” Minn. Stat. § 609.05, subd. 1.

         During closing arguments, the prosecutor asked the jury to draw the inferences

described above in parts A and B and, in addition, to infer that Leonsaco aided and

abetted criminal damage to property because the window screens of each burglarized

cabin were slashed or crushed.        This is a reasonable inference in light of the

circumstances proved, and the inference is consistent with Leonsaco’s guilt. See Moore,

846 N.W.2d at 88. Leonsaco does not offer any alternative inferences concerning the

window screens that are inconsistent with guilt.

         Leonsaco contends that the evidence is insufficient to prove that he aided and

abetted criminal damage to property because the state did not prove that he punctured

C.M.’s tires. Leonsaco is incorrect in asserting that his conviction of aiding and abetting

fourth-degree criminal damage to property is based solely on damage to C.M.’s tires, not

damage to the window screens of the cabins. The state amended the complaint at trial to

                                            12
allege damage to the cabins. See Minn. R. Crim. P. 17.05 (permitting amendment of

complaint “at any time before verdict . . . if no additional or different offense is charged

and if the defendant’s substantial rights are not prejudiced”); State v. Stephani, 369

N.W.2d 540, 549 (Minn. App. 1985) (approving of amendment to complaint during trial

to conform to evidence), review denied (Minn. Aug. 20, 1985). In closing argument, the

prosecutor asked the jury to find Leonsaco guilty based on both the damage to the cabins

and the damage to the tires.     We need not analyze whether the state’s evidence is

sufficient to prove that Leonsaco aided and abetted the damage to C.M.’s tires because

the evidence of damage to the cabins is sufficient to support the conviction of one count

of aiding and abetting fourth-degree criminal damage to property.

       Affirmed.

                                            13


                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 15a0551n.06

                                           No. 14-6296

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

FINANCIAL STRATEGY GROUP, PLC,                           )
                                                                                FILED
                                                                             Aug 04, 2015
                                                         )
          Plaintiff-Appellant,                           )               DEBORAH S. HUNT, Clerk
                                                         )
v.                                                       )       ON APPEAL FROM THE
                                                         )       UNITED STATES DISTRICT
CONTINENTAL CASUALTY COMPANY,                            )       COURT FOR THE WESTERN
                                                         )       DISTRICT OF TENNESSEE
          Defendant-Appellee.                            )
                                                         )
                                                         )

          Before: BOGGS and KETHLEDGE, Circuit Judges; BLACK, District Judge.*

          KETHLEDGE, Circuit Judge. Financial Strategy Group (“FSG”) argues that Continental

Casualty Company breached its insurance policy when it refused to defend or indemnify FSG in

two state-court lawsuits. The district court dismissed this action for failure to state a claim. We

affirm.

          FSG prepares tax returns for clients.     In 2008, FSG bought professional-liability

insurance from Continental. The insurance policy said that Continental would defend FSG

against claims arising from its tax-preparation services and, if necessary, pay the claims. But the

policy excluded claims “based on, arising out of or in connection with the design,

recommendation, referral, sale or promotion” of illegal tax shelters.

*
 The Honorable Timothy S. Black, U.S. District Judge for the Southern District of Ohio, sitting
by designation.
No. 14-6296
Financial Strategy Group, PLC v. Continental Casualty Company

       Soon thereafter, two groups of former clients—the Lowry clients and the Kahn clients—

sued FSG for malpractice, fraud, and other claims. The Lowry clients alleged that FSG had

conspired with other financial, tax, and legal advisors to develop, promote, sell, and implement

“investment strategies” that the IRS later determined were illegal tax shelters. The Lowry clients

further alleged that, in 2000, financial and tax advisors at BDO Seidman convinced the Lowry

clients to buy and sell distressed debt in a multi-step process that would reduce their tax bills.

The Lowry clients used this shelter from 2001 to 2005, forming a limited-liability company for

that purpose. For the 2001 tax year, BDO Seidman helped the Lowry clients prepare the tax

return for the LLC. For 2002 and 2003 tax years, however, FSG prepared the LLC’s returns,

which the Lowry clients then used to prepare their individual returns. The preparation of the

returns was the final step in implementing the illegal tax shelters; and for its services FSG

received substantial fees.

       Similarly, the Kahn clients alleged that FSG had conspired with financial, tax, and legal

advisors to develop, promote, sell, and implement illegal tax shelters. Like the Lowry clients,

the Kahn clients used a multi-step process to buy and sell distressed debt in hopes of reducing

their tax bill. But this process too was an illegal tax shelter. As with the Lowry clients, for the

2002 and 2003 tax years, FSG prepared tax returns for a limited-liability company used to hold

the distressed debt, and the Kahn clients prepared their individual returns based on the LLC’s

returns.

       Upon receipt of these complaints, FSG filed insurance claims with Continental.

Continental denied the claims, stating that the policy’s exclusion for tax shelters relieved

Continental of any duty to defend or indemnify FSG. FSG then sued for breach of the policy

                                                -2-
No. 14-6296
Financial Strategy Group, PLC v. Continental Casualty Company

agreement. The district court dismissed the lawsuit for failure to state a claim. We review that

decision de novo. Berrington v. Wal-Mart Stores, Inc., 696 F.3d 604, 607 (6th Cir. 2012).

       The parties agree that Tennessee law applies. To determine whether an insurer must

defend a policyholder against a lawsuit, we examine the complaint in that lawsuit. Forrest

Const., Inc. v. Cincinnati Ins. Co., 703 F.3d 359, 363 (6th Cir. 2013) (applying Tennessee law).

If the complaint contains a single claim for which the policy provides coverage, then the insurer

must defend the policyholder against the entire lawsuit. Id. We resolve in the policyholder’s

favor any doubts about whether the policy provides coverage. Travelers Indem. Co. of Am. v.

Moore & Associates, Inc., 216 S.W.3d 302, 305 (Tenn. 2007).

       Continental’s policy covers claims based on FSG’s preparation of taxes, which is part of

the conduct alleged in the Lowry and Kahn complaints. But the policy excludes claims “based

on, arising out of or in connection with the design, recommendation, referral, sale or promotion”

of illegal tax shelters. FSG argues that it did not design, recommend, or sell illegal tax shelters

because FSG prepared tax returns for the LLCs after the shelters had been designed, marketed,

and sold. But a “recommendation” is a piece of advice or a suggestion of how to do something.

Oxford English Dictionary (3d ed. 2009). And the Lowry and Kahn clients alleged that FSG

“advised” them that they “could properly” claim losses from the illegal tax shelters. Moreover,

FSG’s act of including a proposed loss on a tax return was itself a suggestion to claim the loss.

Thus, regardless of when the shelters here were sold, FSG’s actions in preparing the LLCs’

returns amounted to a recommendation to proceed with them.

       FSG responds that the Kahn and Lowry complaints contain at least some claims to which

the exclusion does not apply. For example, FSG says, the Kahn complaint describes four types

of conduct that the policy would cover. First, the Kahn complaint alleges that FSG injured the

                                                -3-
No. 14-6296
Financial Strategy Group, PLC v. Continental Casualty Company

Kahn clients by “[a]dvising, instructing, and assisting in the preparation of the [Kahn clients’]

tax returns”—which FSG contends that the policy covers. Appellant’s Br. 23. But the Kahn

complaint more specifically alleges that FSG instructed the Kahn clients to use illegal tax

shelters, that FSG advised the Kahn clients that the shelters were legal, and that FSG proposed

tax returns that claimed losses from the shelters. Kahn Complaint ¶¶ 29, 67-69. That conduct

amounts to the recommendation of illegal tax shelters, so the exclusion applies to it.

       Second, the Kahn complaint alleges that FSG signed the Kahn clients’ tax returns, and

“advis[ed]” the Kahn clients “to sign and file the tax returns[.]” Appellant’s Br. 23. As

discussed above, however, that advice amounts to a recommendation to proceed with the tax

strategies on the return—which is what FSG did as to illegal tax shelters.               Thus, FSG

recommended illegal tax shelters when it signed tax returns and advised the Kahn clients to file

them, which means the exclusion applies.

       Third, the Kahn complaint alleges that FSG “[a]dvis[ed]” the Kahn clients “that their tax

returns . . . were prepared in accordance with professional standards and pursuant to the IRS

guidelines and established legal authorities”—which again FSG contends the policy covers.

Appellant’s Br. 23. But FSG’s advice to the Kahn clients that their tax returns were prepared in

accordance with the applicable laws constituted advice that the tax shelters were legal—which

again amounts to a recommendation to proceed with illegal tax shelters. So the policy excludes

coverage for that advice.

       Fourth, the Kahn complaint alleges that FSG failed “to advise” the Kahn clients that the

tax strategies used on their returns “did not comply with the applicable tax laws”—an omission

that FSG contends is not a recommendation. Appellant’s Br. 23. But the Kahn complaint did

not allege merely that FSG had failed to act. Rather, the Kahn complaint alleged that FSG said

                                                -4-
No. 14-6296
Financial Strategy Group, PLC v. Continental Casualty Company

that the tax shelters were legal and then failed to retract that advice. Kahn Complaint ¶¶ 71-72.

In context, therefore, the allegation that FSG failed to disclose certain information is no different

from the allegation that FSG recommended illegal tax shelters. Thus, the exclusion applies.

         Finally, FSG argues that the Tennessee-law doctrine of “concurrent causation” requires

coverage here. That doctrine mandates coverage if two causes—one covered by the policy and

another excluded by the policy—both contribute to a loss. Allstate Ins. Co. v. Watts, 811 S.W.2d

883, 886-87 (Tenn. 1991). Here, FSG contends that the Lowry and Kahn complaints allege that

the Lowry and Kahn clients were injured by two distinct causes:                  first, the design,

recommendation, or sale of illegal tax shelters (which the policy excludes); and second, the

preparation of tax returns (which the policy covers). Appellant’s Br. 25. But here that

distinction is illusory. The Lowry and Kahn complaints allege that FSG injured the Lowry and

Kahn clients through tax-preparation activities that, as shown above, amount to the

recommendation of illegal tax shelters. The concurrent-causation doctrine therefore does not

apply.

         The district court’s judgment is affirmed.

                                                 -5-


30 F.Supp.2d 1356 (1998)
EAST HIGH GAY/STRAIGHT ALLIANCE, an unincorporated association; Ivy Fox, a minor, by and through her mother and next friend, Kay Kosow Fox; Keysha Barnes, a minor by and through her father and next friend, James Barnes; and Leah Farrel, by and through her mother and next friend. Kelly Fogarty, Plaintiffs,
v.
BOARD OF EDUCATION OF SALT LAKE CITY SCHOOL DISTRICT, a body corporate of the State of Utah; Darline Robles, Superintendent of Salt Lake City School District, in her official capacity; and Cynthia Seidel, Assistant Superintendent, in her official capacity, Defendants.
No. CIV. 2:98-CV-193J.
United States District Court, D. Utah, Central Division.
November 24, 1998.
*1357 Stephen C. Clark, American Civil Liberties of Utah Foundation, Inc., Salt Lake City, UT, Kelly M. Evans, American Civil Liberties Union, San Francisco, CA, Marlin G. Criddle, Laura M. Gray, Salt Lake City, UT, David S. Buckel, Lambda Legal Defense and Education Fund, New York City, Jon W. Davidson, Lambda Legal Defense and Education Fund, Los Angeles, CA, Daniel K. Slaughter, Heller Ehrman White & McAuliffe, Kathryn D. Kendell, NCLR, San Francisco, CA, for Plaintiffs.
Dan R. Larsen, Elizabeth King, Assistant Utah Attorneys General, Jan Graham, Utah Attorney General, Salt Lake City, UT, for Defendants.

MEMORANDUM OPINION AND ORDER
JENKINS, Senior District Judge.
Relying solely on their statutory claim under the Equal Access Act, 20 U.S.C. §§ 4071-4074 (1994), plaintiffs seek preliminary injunctive relief prohibiting the defendants from denying the East High Gay/ Straight Alliance, Keysha Barnes and Ivy Fox equal access to the "limited open forum" that the defendants allegedly have created for "non-curricular" student clubs at East High School.[1] Granted such access, plaintiffs believe they "could use the public address system for announcements about meetings," post notices, and "pass out fliers at the school fairs and put up information sheets on bulletin boards," enabling them to "make a difference by reaching out to other students who need support" as well as students who "need to get information about antigay stereotypes and bigotry." (Memorandum in Support of Plaintiffs' Motion for Partial Preliminary Relief, filed October 13, 1998 (dkt. no. 60), at 9 (quoting Affidavit of Ivy Fox in Support of Plaintiffs' Motion for Partial Preliminary Relief (dkt.no.61), at ¶¶ 11-12, 14).)
Defendants respond that plaintiffs cannot establish a "clear and unequivocal" right to preliminary relief under the Equal Access Act. In particular, defendants assert that plaintiffs cannot show a likelihood of success on the merits based upon their claim that two student groups cited in their moving papers are "noncurriculum related student groups" within the meaning of the statute. (Memorandum in Opposition to Plaintiffs' Motion for Partial Preliminary Relief, filed November 2, 1998 (dkt. no. 71), at 2-3.) Even if the challenged groups are "non-curricular," defendants argue that plaintiffs cannot show that they will suffer irreparable injury if preliminary relief does not issue, and that the harm to the defendants resulting from a preliminary injunction would outweigh any harm suffered by plaintiffs. A preliminary injunction, defendants assert, would prove disruptive and burdensome and would "undermine defendants['] ability to implement and enforce the district's closed forum policy"  a policy which defendants equate with the public interest. (Id. at 12-18.)

The Equal Access Act
Enacted in 1984, the Equal Access Act, 20 U.S.C. § 4071(b), provides: "A public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time." Where a "limited open forum" exists, the Equal Access Act forbids a public secondary school to "deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings." 20 U.S.C. § 4071(a). However, the Equal Access Act as passed by the Congress of the United States does not define "noncurriculum related student groups," the essential ingredient creating the statute's "limited open forum." leaving the question of definition for the courts to decide.

The Mergens Case
The Supreme Court, per Justice O'Connor, tried its hand at interpretation of the "noncurriculum related student groups" language *1358 in Westside Community Board of Education v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990):
We begin, of course, with the language of the statute.... The common meaning of the term "curriculum" is "the whole body of courses offered by an educational institution or one of its branches." Webster's Third New International Dictionary 557 (1976); ... Any sensible interpretation of "noncurriculum related student group" must therefore be anchored in the notion that such student groups are those that are not related to the body of courses offered by the school.
496 U.S. at 237, 110 S.Ct. 2356 (emphasis added & citations omitted). The Court then looked to the statute's definition of "meeting" as well as the "logic of the Act" coupled with its "less than helpful" legislative history. Id. at 237-39, 110 S.Ct. 2356. Relying on these sources, the Mergens Court gave the legislative purpose (viz., to allow non-curricular religious student groups to meet on school premises free from discrimination based on content) a broad reading:
In light of this legislative purpose, we think that the term "noncurriculum related student group" is best interpreted broadly to mean any student group that does not directly relate to the body of courses offered by the school. In our view, a student group directly relates to a school's curriculum if the subject matter of the group is actually taught or will soon be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit. We think this limited definition of groups that directly relate to the curriculum is a commonsense interpretation of the Act that is consistent with Congress' intent to provide a low threshold for triggering the Act's requirements.
Id. at 239-40, 110 S.Ct. 2356 (emphasis in original). Of course, the required determination is fact-driven: "Whether a specific student group is a `noncurriculum related student group' will therefore depend on a particular school's curriculum, but such determinations would be subject to factual findings well within the competence of trial courts to make." Id. at 240, 110 S.Ct. 2356.
Justice O'Connor offered examples illustrating each of the Mergens direct relationship criteria:
(1) the subject matter of the group is actually taught or will soon be taught, in a regularly offered course  "a French club would directly relate to the curriculum if a school taught French in a regularly offered course or planned to teach the subject in the near future" (id. at 240, 110 S.Ct. 2356);
(2) the subject matter of the group concerns the body of courses as a whole  "A school's student government would generally relate directly to the curriculum to the extent that it addresses concerns, solicits opinions, and formulates proposals pertaining to the body of courses offered by the school" (id.);
(3) if participation in the group is required for a particular course"If participation in a school's band or orchestra were required for the band or orchestra classes" (id.); or
(4) if participation in the group results in academic credit  "If participation in a school's band or orchestra ... resulted in academic credit, then those groups would also directly relate to the curriculum" (id.).
As to the first criterion, Mergens rejected the suggestion that "`curriculum related' means anything remotely related to abstract educational goals," such as "promot[ing] effective citizenship." The required relationship depends much more on the substantive content of a specific course compared with the activities of a specific group. "The difficult question," as Justice O'Connor observed in Mergens, "is the degree of `unrelatedness to the curriculum' required for a group to be considered `noncurriculum related.'" Id.

"Noncurriculum Related Student Groups" at East High School
To show the existence of a "limited open forum" within the meaning of the Equal Access Act, plaintiffs submit that the Future Business Leaders of America (FBLA), the National Honor Society (NHS), and the Improvement Council at East (ICE) present "a *1359 sampling of groups with three different types of subject matters: social, college-oriented, and community service-oriented," each of which plaintiffs contend is "non-curricular."[2] (Memorandum in Support of Plaintiffs' Motion for Partial Preliminary Relief at 5 n. 3.)
As Mergens so aptly illustrates, "Passing a statute is but the beginning of a conversation,"[3] a conversation about meaning, about criteria, about facts.
Plaintiffs assert that that Mergens prescribes a "straightforward approach[:] hold up the subject matter of a student group next to the subject matter of a corresponding course and see if they are the same.... Once the subject matters of class and club meaningfully diverge, however, the club is noncurricular." (Reply Memorandum in Support of Plaintiffs' Motion for Partial Preliminary Relief, filed November 13, 1998 (dkt. no. 82), at 3.)
How does one measure whether class and club subject matter is "the same" or has "meaningfully diverge[d]?" Plaintiffs assert that "[i]f a creative writing class exclusively does writing exercises, and [a] student writing club exclusively does writing exercises, the club is curricular," i.e., the same. (Id.) Plaintiffs suggest that the subject matter of class and club "meaningfully diverge" when a club engages in activities having a social, fund-raising or community service function.
However, one must distinguish between sameness and relatedness. Plaintiffs  not the Mergens Court  say "the same." In saying "related"  a word referring to things "connected"[4] in some fashion  the Mergens Court did not mean to say "identical."
In general, a secondary school class does not undertake to raise funds, perform community service, or simply "have fun." A typical secondary school club may do one or all of these things as part of its activities. However, it may be that these functions distinguish "club" from "class" more than they distinguish "non-curricular" from "curricular." If to be deemed "directly related" to the curriculum, a club's subject matter must be limited to instructional activities concerning a class topic, as plaintiffs seem to suggest, then perhaps the group would be better described as a tutorial, or a study group, rather than a club. A "club" seems to be an inescapably social organization, even if it has an instructional or informational subject matter or purpose.
Nothing in Mergens suggests that Justice O'Connor's French club would become "noncurricular" if it raises funds, or plans social gatherings for the enjoyment of its members, so long as part of its activities involve things French. Indeed, according to Mergens, the school's simple description of, e.g., a distributive education club as "an extension of the Distributive Education class," or a Latin club as "designed for those students who are taking Latin as a foreign language," constituted "persuasive evidence that these student clubs directly relate to the curriculum." Id. at 246, 110 S.Ct. 2356.[5]
To be directly related to a class under Mergens, therefore, a club need not be identical to a class.
Defendants, on the other hand, assert that Mergens "simply requires that the subject matter of the group directly relates to the subject matter of a class actually taught ...." (Memorandum in Opposition to Plaintiffs' Motion for Partial Preliminary Relief at *1360 8.) To determine whether a club "directly relates" to a class, defendants point to the substantive "core" of what a club is doing and why it exists. That substantive "core" is then compared with the course curriculum using a "comparative-relatedness balancing test" derived from Mergens:
[T]he Act is premised on the notion that a religious or political club is itself likely to be a noncurriculum-related student group. It follows, then, that a student group that is "curriculum related" must at least have a more direct relationship to the curriculum than a religious or political club would have.
Mergens, 496 U.S. at 238, 110 S.Ct. 2356. See also Pope v. East Brunswick Board of Education, 12 F.3d 1244, 1253 (3d Cir.1993). To what extent this balancing test can assist in resolving Justice O'Connor's "difficult question of degree" remains unclear. How does one weigh the curriculum relatedness of an existing student group against the hypothetical subject matter of "a religious or political club" not yet established? Applying this criterion, the existence of a limited open forum under the statute would depend as much on the collective breadth of vision of court and counsel as anything else. See, e.g., Pope, 12 F.3d at 1253-54 (a Bible Club may be more directly related to the curriculum than a Key Club; "[i]t is evident that the Bible relates generally to subjects taught in high school" and if the Bible's "greater influence on Western civilization, history and thought" is weighed against "the Key Club's food and toy drives," then "the Key Club is found wanting").
To be sure, "a curriculum related student group is one that has more than just a tangential or attenuated relationship to courses offered by the school." Mergens, 496 U.S. at 238, 110 S.Ct. 2356. Yet the required analysis under Mergens appears to be qualitative rather than quantitative; if at least part of a club's activities enhance, extend, or reinforce the specific subject matter of a class in some meaningful way, then the relationship between club and class is more than tangential or attenuated, and the club may be "directly related" to the class in terms of its subject matter.[6] Where that is not the case, club and class have "meaningfully diverged," and the club may be "non-curricular" under § 4071(b).[7]
Recognizing that Mergens' definition of "noncurriculum related student activities" expressly "looks to a school's actual practice rather than its stated policy," 496 U.S. at 246, 110 S.Ct. 2356, the examination nevertheless proves to be macroscopic, not microscopic. Even as to groups challenged in that case, Mergens did not assay each and every student activity for its substantive course content. It follows that curriculum-related student clubs, like non-curricular student clubs, may function as clubs  members may socialize, raise funds, and even assist others as part of their group activities  without altering the club's status under the statute.

Future Business Leaders of America (FBLA)
Plaintiffs submit that the Future Business Leaders of America (FBLA) at East High School constitutes "without question" a "non-curricular" student group: "socializing is the most significant component to the FBLA group's subject matter." (Memorandum in Support of Plaintiffs' Motion for Partial Preliminary Relief at 31.) Looking to FBLA's activities over the past year. plaintiffs counted "`socials' (six in number), `business career preparation' (four in number), `fundraising' (three in number), and `community service' (three in number)." (Id. at 10.) In number and level of participation, the social events were the "most significant." (Id. at 32.) *1361 Less significant were activities designed to "explore and improve career opportunities," including a fall leadership conference, a guest speaker, a field trip to a local candy manufacturer and a spring business education competition.[8] (Id. at 32-33.)
Plaintiffs also point to Garnett v. Renton School District, 772 F.Supp. 531 (W.D.Wash. 1991), rev'd on other grounds, 987 F.2d 641 (9th Cir.1993), as support for the proposition that FBLA is a non-curricular group. The district court in Garnett found as much, noting that "[t]he faculty advisor generally does noninstruct members" and that "to avoid creating a limited open forum," the school must "provide instruction in FBLA meetings," among other options. 772 F.Supp. at 534.
Defendants respond by emphasizing the career preparation activities, which "provide learning experiences and career-related activities to assist students in reaching their professional goals in business," and "closely match the courses in the East High School Business Department," such as the Business Management, All About Business, Word Processing, Information Processing, and Accounting courses. (Memorandum in Opposition to Plaintiffs' Motion for Partial Preliminary Relief at viii ¶¶ 29-30, 6.) They assert that "FBLA and other vocational student leadership organizations are a vital component of the school-to-work programs in the area of applied technology education." (Id. at 6.)
Defendants also point out that "academic credit" of a sort is available to students actively involved in FBLA: the club's faculty advisor awards "extra credit in the form of a three percent grade increase" to FBLA members in her classes who participate in FBLA activities. (Id. at xiii ¶ 47; Affidavit of Connie Clements, filed November 2, 1998 (dkt. no. 75), at ¶ 24.)
This court has reviewed the parties' memoranda as well as the accompanying affidavits and exhibits, including the deposition transcripts. The documentation is extensive. The pertinent facts are numerous. The controversy is genuine.
From the factual materials now before this court, however, it appears that the FBLA actually engages in activities which enhance, extend, or reinforce the specific subject matter of one or more business classes in a meaningful way and are thus "directly related" to the school's curriculum under § 4071(b) as read in Mergens. The most significant overlap between course content and FBLA activities involves the Business Management course. Among the stated goals of that course are the following:
2. Develop an understanding of the economic principles that influence business decisions.
* * * * * *
4. Explore career opportunities, consumer issues, and other aspects of personal economics.
5. Provide hands-on experience in the operation of a business enterprise, and have weekly contact with representatives of the business community.
(Business Management Course Description, in Exhibit "E" to Affidavit of Cynthia L. Seidel, filed November 2,1998 (dkt. no. 73).) All of the FBLA activities cited by plaintiffs as being designed to "explore and improve career opportunities" extend or reinforce the defined subject matter of the Business Management course  especially its stated goal to "explore career opportunities." Further, the FBLA spring competition appears to reinforce student skills learned in word and information processing classes, accounting classes, introductory business classes, business law classes, and communications classes, among others.
Nor can this court ignore FBLA's origins. FBLA was not created in a vacuum; it represents one component of a federally funded initiative starting with the Vocational Act of 1963 and encouraging education in "applied technology" or "school-to-work" programs to better prepare students to join the workforce following the completion of their studies. Federal and state funds are specifically earmarked for schools sponsoring groups such *1362 as FBLA  in Utah, an amount approximating one percent of the total applied technology education budget. Those who earmark the funds clearly perceive a direct relationship between FBLA (and related groups) and the applied technology course curriculum those funds support.
Plaintiffs have failed to carry their burden to show a likelihood of success on the merits of their claim that the presence of Future Business Leaders of America at East High School creates a limited open forum under § 4071(b) of the Equal Access Act.[9]

National Honor Society (NHS)
Plaintiffs characterize the National Honor Society's subject matter as "recognition of general academic achievement, community service, and a winter social to get advice from alumni  with all three of these having a college-orientation." (Memorandum in Support of Plaintiffs' Motion for Partial Preliminary Relief at 35.) They reject the assertion that NHS "concerns the body of courses as a whole" under Mergens because "there is nothing in the activities or the subject matter of NHS to suggest it reflects any similarity to a student government body that provides input to schools officials about the curriculum." (Id. at 37.)
Responding that "the `directly related to the curriculum as a whole' test in Mergens is vague at best," defendants assert that "NHS's purpose is simple  to honor students who have achieved academic excellence and to encourage them to maintain their academic performance in all classes." (Memorandum in Opposition to Plaintiffs' Motion for Partial Preliminary Relief at 11.)
Plaintiffs reply that the NHS subject matter so defined runs afoul of Mergens' rejection of curriculum-relatedness based solely upon "anything remotely related to abstract educational goals," 496 U.S. at 244, 110 S.Ct. 2356, and ignores NHS's community service component altogether. (Reply Memorandum in Support of Plaintiffs' Motion for Partial Preliminary Relief at 13 & n. 9.) Plaintiffs also point to the Garnett court's finding that another club "which also combined general academic achievement with community service" was non-curricular. (Id. at 14.) See Garnett, 772 F.Supp. at 533.[10]
The Mergens "body of courses as a whole" criterion does little more than restate the Equal Access Act's "curriculum" language using different words.[11] Because of the broad scope of the criterion itself, the subject matter of a student group meeting the "body of courses as a whole" criterion will more likely reflect "some broadly defined educational goal" than a group satisfying the first Mergens standard involving relatedness to particular classes. This is borne out by Justice O'Connor's example of a "curriculum related" student government group that "addresses concerns, solicits opinions, and formulates proposals pertaining to the body of courses offered by the school"  a "broadly defined" subject matter, indeed.[12] 496 U.S. at 240, 110 S.Ct. 2356.
What other subject matter may be directly related to the school's "body of courses as a whole?"
Affording students an opportunity to achieve academic excellence in "the body of *1363 courses as a whole" represents a public secondary school's core purpose. Under the Equal Access Act, schools remain free to encourage academic excellence. Schools likewise remain free to recognize and reward academic excellence whenever it is achieved. No one has suggested that by promoting academic excellence, a school opens its doors to advocacy of non-curricular subject matter.
Allowing a student group to organize and meet on school premises for that same purpose serves to reinforce the school's policies promoting academic achievement. Moreover, insofar as a school has undertaken through its curriculum to prepare students to pursue a college education, a student group that conducts activities designed to assist students in preparing for college directly relates to the school's college preparatory curriculum.
Returning to the logic of the Equal Access Act, a student group that "concerns the body of courses as a whole" must "at least have a more direct relationship to the curriculum than a religious or political club would have," 496 U.S. at 238, 110 S.Ct. 2356, and plainly the National Honor Society has that more direct relationship.
As plaintiffs acknowledge, the subject matter of NHS embraces "recognition of general academic achievement." (Memorandum in Support of Plaintiffs' Motion for Partial Preliminary Relief at 35.) NHS's "Winter social" involves "alumni students who have gone on to college giv[ing] advice to current members of the group." (Id.) Similarly, NHS fund-raising activities involve "collecting money for college scholarships." (Id.)
Activities promoting academic excellence have a far more direct relationship to the school's "body of courses as a whole" than does a student government group that in some undefined way "addresses concerns, solicits opinions, and formulates proposals" pertaining to the curriculum. Academic excellence has no meaning apart from the courses of study offered by a school and cannot be achieved outside of the school's curriculum. By definition, then, academic achievement can have no "noncurriculum related" subject matter.
NHS rewards academic achievement as reflected by its members' entire scholastic performance, reinforcing a core purpose of the school curriculum as a whole. NHS activities also extend the school's college preparatory curriculum by helping to pave the students' road from a high school classroom to a college education.
Rewarding academic excellence through membership in an honor society does not differ in substance from rewarding academic excellence by maintaining an honor roll. In neither instance may members of a religious, political or other advocacy group deem themselves unfairly excluded from a school forum in which other views not related to the body of courses offered by the school have found a voice. Organizing an honor society simply does not discriminate against the expression of any non-curricular viewpoint on any subject.
And of course, it is that kind of discrimination that the Equal Access Act seeks to remedy. Mergens, 496 U.S. at 238, 110 S.Ct. 2356 ("[T]he purpose of granting equal access is to prohibit discrimination between religious or political clubs on the one hand and other noncurriculum-related student groups on the other[.]"); id. at 241, 110 S.Ct. 2356 ("Congress clearly sought to prohibit schools from discriminating on the basis of the content of a student group's speech ....").
As with FBLA, plaintiffs have failed to carry their burden to show a likelihood of success on the merits of their claim that the presence of the National Honor Society at East High School creates a limited open forum under § 4071(b) of the Equal Access Act.

Improvement Council at East (ICE)
Plaintiffs' motion also asserts the "non-curricular" nature of a third student group, the Improvement Council at East (ICE), which plaintiffs contend is primarily a community service organization. (Memorandum in Support of Plaintiffs' Motion for Partial Preliminary Relief at 37-38.) However, for the 1998-99 school year, "[t]he Improvement Council at East (ICE) has not been approved as a student group" and will not "meet at East High School as a student group during non-instructional time" until such time as it is approved. (Affidavit of Cynthia L. Seidel *1364 at ¶ 24.) As such, the Improvement Council at East cannot serve as a basis for any finding of a limited open forum under § 4071(b) for purposes of preliminary prospective relief.

Conclusion
Having failed to show a likelihood of success on the merits of their Equal Access Act claims based upon the groups addressed by their motion, plaintiffs have failed to establish a clear and unequivocal right to preliminary injunctive relief. Therefore, this court need not address the sufficiency of plaintiffs' claim of irreparable injury, or whether that injury outweighs any potential harm to the defendants that would flow from preliminary relief, or whether preliminary relief would somehow be adverse to the public interest.
Whether a "limited open forum" exists at East High School, or has existed in the recent past, still awaits a final determination on the basis of a complete record. Whether plaintiffs are entitled to compensatory damages or injunctive relief is also a matter reserved for another day. All that is now decided is that plaintiffs are not entitled to partial preliminary injunctive relief on the narrow and specific grounds asserted in their present motion.
For the foregoing reasons,
IT IS ORDERED that the plaintiffs' Motion for Partial Preliminary Relief is DENIED.
NOTES
[1]  Plaintiffs' motion does not address West High School; nor does it address all of the student groups at East High School which plaintiffs contend are "non-curricular." See Memorandum in Support of Plaintiffs' Motion for Partial Preliminary Relief at 5 n. 3 ("Plaintiffs do not wish to burden the Court with a review of all the student groups that Plaintiffs assert are non-curricular.")
[2]  Though it was argued in Mergens that both the Future Business Leaders of America and the National Honor Society were "curriculum related" groups, the Court did not address these groups in reaching its conclusion that the school had permitted non-curricular groups to meet, thus establishing a limited open forum. For the Mergens court, the existence of non-curricular chess and scuba diving clubs and a "Peer Advocates" special education group was sufficient to trigger the Equal Access Act's "limited open forum" protections.
[3]  George Fletcher, Basic Concepts of Legal Thought 65 (1996).
[4]  Webster's Third New International Dictionary 1916 (1971).
[5]  Nor does Mergens suggest that a student government would be deemed "curriculum related" only if it confines itself to it addressing concerns, soliciting opinions, and formulating proposals pertaining to the body of courses offered by the school, or that it would be deemed "non-curricular" if it undertakes to raise funds, plan social events or engage in community service.
[6]  Where a curriculum-related group in some meaningful way also expresses or advocates specific subject matter not encompassed within the subject matter of a class, (e.g., a French Club organizing a "Free Quebec" demonstration and distributing pro-independence leaflets), the group may nevertheless be deemed "noncurriculum related" under § 4071(b), thus giving credence to the statute's core concerns about speech and advocacy by student groups and equal access to a forum for that purpose.
[7]  This may be what the Third Circuit was driving at in Pope when it said "the curriculum-relatedness of a student activity must be determined by reference to the primary focus of the activity measured against the significant topics taught in the course that assertedly relates to the group." 12 F.3d at 1253.
[8]  Plaintiffs do not suggest that FBLA at East High engages in advocacy of substantive subject matter beyond the scope of East High's business and applied technology curriculum, or other non-curricular speech of concern under the Equal Access Act.
[9]  Plaintiffs argue that "`[t]he burden of showing that a group is directly related to the curriculum rests on the school district,'" quoting the Third Circuit's opinion in Pope. (Reply Memorandum in Support of Plaintiffs' Motion for Partial Preliminary Relief at 4 n. 2 (quoting Pope, 12 F.3d at 1252).) While this may ultimately be so, (see Mergens, 496 U.S. at 240, 110 S.Ct. 2356), on a motion for preliminary injunction, the moving party bears the burden of showing a likelihood of success on the merits, SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991), and that burden does not shift.
[10]  Of course, Garnett observed that the "SKY Club's purpose is to help people in need." 772 F.Supp. at 533. Plaintiffs here do not ascribe the same purpose to NHS.
[11]  "The common meaning of the term `curriculum' is `the whole body of courses offered by an educational institution or one of its branches.' Webster's Third New International Dictionary 557 (1976) ...." Mergens, 496 U.S. at 237, 110 S.Ct. 2356 (emphasis added). In the process of interpreting a statute, "Interpretation typically means that one set of words takes the place of another." George Fletcher, Basic Concepts of Legal Thought, supra n. 3, at 66.
[12]  Indeed, in Pope, the Third Circuit was reluctant to extend the application of this criterion beyond Justice O'Connor's student government example. 12 F.3d at 1252.


                           UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT

                           No. 11-6117

ADRIAN DOMINIC WATKINS,

               Plaintiff – Appellant,

          v.

BOYD BENNETT; BETTY BROWN; BECKY POPE; MARVIN POLK; G.J.
BRANKER; RANDEL J. SPEER; D. SANDERS, Officer; R. TIFFANY,
Officer; OFFICER BOONE; MRS. SMITH, Officer; OFFICER
MITCHEAL; OFFICER MAGUM; OFFICER BROWN; OFFICER FOX; OFFICER
GALLAWAY; MRS. CHEARY, Officer; MRS. SHAW, Officer; RONALD
LOCKLEAR, Officer; ROY GILMORE, Officer; JUDY TAYLOR,
Officer; PAULA JACOB, Officer; OFFICER GILES; SGT. CORRELL;
L. CARR, Sgt.; SERGEANT ANDINO; SGT. DODA; SERGEANT JAMES;
SGT. WIMBERLY; SGT. WARD; REGINA HAMPTON, Sgt.; SGT. MILLER;
TRACY TYNER, Sgt.; LARRY CARTER, Sgt.; B. HOLLOWAY, Sgt.;
OFFICER BACHLOR; F. STRICKLAND, Lt.; H. CLAYBURN, Lt.; M.A.
JORDAN, Lt.; DONNIE R. RAYNOR, Lt.; LIEUTENANT WADDELL; LT.
DELGOTTO; LT. AIKENS; R. SIGNAL, Capt.; F.S. ONEAL, Capt.;
BRAD PERRITT, Capt.; CAPTAIN WILLIAMS; CAROL TORRES, Capt.;
MS. LAFLUER; Z. SIMMONS; MRS. WALTON; MRS. CHAPMAN; MRS.
COOPER; MARSHALL PIKE; GARY CRUTCHFIELD; J. BAKE WILLIAMS;
KENNETH M. JONES; GEROTHA R. SPAIN; REGINALD E. MIDGETTE,
Rev.;   ROBERT  L.   MONTGOMERY,  JR.,   Chaplain;  CHAPLAIN
WILLIAMS; CHAPLAIN WALLACE; MR. CALHOUN; M. LANE; GERRI L.
LOCKLEAR; MARRIETTA BARR; CHRISTOPHER COVINGTON; ISAAC
BALDWIN; LEWIS W. FERGUSON; BARBARA M. PIERCE; MRS. OWENS;
MRS. CASH; JIMMY L. BINFORD; CURTIS JONES; EDWARD B. THOMAS;
MITCHELL LOWRY; IRENE HARRIS; DEVATER C. POLK; HATTIE B.
PIMPONG; R.D. WELLMAN; BRADFORD BANNERMAN; ANTHONY HATHAWAY,
III; ALBERT THOMAS; FREDERICK HUBBARD; DANNY THOMPSON;
MICHAEL EASLEY; OFFICER RAYNOR; 4-18-07 FCC BOARD; 5-9-07
FCC BOARD; 5-30 DCC BOARD; OFFICER HICKMAN; OFFICER
ROBBISON; JOHN DOE #1; OFFICER MCPHAUL; OFFICER SCOTT;
OFFICER BROWN; JOHN DOE #2; JOHN DOE #3; JOHN DOE #4; JOHN
DOE #5; JOHN DOE #6; JOHN DOE #7; JOHN DOE #8; JOHN DOE #9;
JOHN DOE #10; JOHN DOE #11; NURSE JANE DOE,

                Defendants – Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:09-ct-03127-D)

Submitted:   April 28, 2011                 Decided:   May 4, 2011

Before DAVIS, KEENAN, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Adrian Dominic Watkins, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

                                 2
PER CURIAM:

            Adrian      Dominic         Watkins       appeals         from    the      district

court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint

without prejudice because it failed to comply with Fed. R. Civ.

P.    8(a)(2).     Generally,           a    district         court’s     dismissal         of    a

complaint without prejudice is not appealable.                            See Domino Sugar

Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67

(4th Cir. 1993) (holding that a “plaintiff may not appeal the

dismissal of his complaint without prejudice unless the grounds

for    dismissal     clearly       indicate          that      no     amendment       [in    the

complaint]    could       cure    the       defects      in    the    plaintiff’s         case”)

(alteration in original) (internal quotation marks omitted).                                     In

this case, Watkins would be able to save his action by amending

his    complaint     to    comply        with      the      district         court’s      order.

Therefore, the district court’s dismissal of Watkins’ complaint

without      prejudice       is     not         an       appealable           final       order.

Accordingly, we dismiss the appeal for lack of jurisdiction.

We    dispense   with     oral    argument         because          the   facts     and     legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                                DISMISSED

                                               3


               UNITED STATES COURT OF APPEALS

                   FOR THE FIFTH CIRCUIT

                     __________________

                        No. 01-60835
                      Summary Calendar
                     __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                   Plaintiffs - Appellees

                             v.

KATIE FAIR BEASLEY

                                   Defendant - Appellant.

                     __________________

                        No. 01-60836
                     __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                   Plaintiffs - Appellees

                             v.

DWAYNE BROWN

                                   Defendant - Appellant.

                     __________________

                        No. 01-60837
                     __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                   Plaintiffs - Appellees
                          v.

BETTY BURNETT

                                 Defendant - Appellant.
                  __________________

                     No. 01-60838
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

ORA CAIN

                                 Defendant - Appellant.
                  __________________

                     No. 01-60839
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

MELISSA CARTER

                                 Defendant - Appellant.
                  __________________

                     No. 01-60840
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

                           2
ZINNIE MAE COLLINS

                                    Defendant - Appellant.
                     __________________

                        No. 01-60841
                     __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                   Plaintiffs - Appellees

                             v.

JESSIE COLVIN

                                    Defendant - Appellant.
                     __________________

                        No. 01-60842
                     __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                   Plaintiffs - Appellees

                             v.

MATTIE LEE CONNER

                                    Defendant - Appellant.
                     __________________

                        No. 01-60843
                     __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                   Plaintiffs - Appellees

                             v.

J C DOSS

                             3
                                 Defendant - Appellant.
                  __________________

                     No. 01-60850
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

WILLIAM DAVIS

                                 Defendant - Appellant.
                  __________________

                     No. 01-60851
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

LEONARD CHARLES NAYLOR

                                 Defendant - Appellant.
                  __________________

                     No. 01-60853
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

LOUISE HARRELL

                                 Defendant - Appellant.

                           4
                  __________________

                     No. 01-60854
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                            v.

KAREN HARRIS

                                 Defendant - Appellant.
                  __________________

                     No. 01-60855
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                            v.

MARGARET WATT HARRISON

                                 Defendant - Appellant.
                  __________________

                     No. 01-60856
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                            v.

EDDIE HEARD; TORSHA HEARD

                                 Defendants - Appellants.
                  __________________

                            5
                     No. 01-60857
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

JACQUELINE HICKS-RANDLE

                                 Defendant - Appellant.
                  __________________

                     No. 01-60858
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

EMMA HILL

                                 Defendant - Appellant.
                  __________________

                     No. 01-60859
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

LOUISE HOWARD

                                 Defendant - Appellant.
                  __________________

                     No. 01-60860

                           6
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

BOBBY C JOHNSON; LARRY JOHNSON

                                 Defendants - Appellants.
                  __________________

                     No. 01-60861
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

ARETHA CLARK JORDAN; JAMES M JORDAN

                                 Defendants - Appellants.
                  __________________

                     No. 01-60862
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

KAREN BOYD MCFARLAND; JORDAN T MCFARLAND

                                 Defendants - Appellants.
                  __________________

                     No. 01-60863
                  __________________

                           7
AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                           v.

ROSIE MARTIN

                                  Defendant - Appellant.
                   __________________

                      No. 01-60864
                   __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                           v.

THALMUS R MORGAN

                                  Defendant - Appellant.
                   __________________

                      No. 01-60866
                   __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                           v.

KATHY MOSIER

                                  Defendant - Appellant.
                   __________________

                      No. 01-60867
                   __________________

                           8
AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

BOBBY NASH

                                 Defendant - Appellant.
                  __________________

                     No. 01-60868
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

REBECCA NAYLOR

                                 Defendant - Appellant.
                  __________________

                     No. 01-60869
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

UNDRA SAWYER

                                 Defendant - Appellant.
                  __________________

                     No. 01-60870
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;

                           9
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                           v.

DELOIS SLEDGE

                                  Defendant - Appellant.
                   __________________

                      No. 01-60871
                   __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                           v.

LINDA FAYE SMITH

                                  Defendant - Appellant.
                   __________________

                      No. 01-60872
                   __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                           v.

PRESTON TALLIE

                                  Defendant - Appellant.
                   __________________

                      No. 01-60873
                   __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                           10
                                 Plaintiffs - Appellees

                          v.

LEXIE TATE

                                 Defendant - Appellant.
                  __________________

                     No. 01-60874
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

LEROY WATT

                                 Defendant - Appellant.
                  __________________

                     No. 01-60875
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          v.

LES WILBON

                                 Defendant - Appellant.
                  __________________

                     No. 01-60876
                  __________________

AMERICAN HERITAGE LIFE INSURANCE COMPANY;
FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                 Plaintiffs - Appellees

                          11
                                  v.

     ARTHUR LEE WILLIAMS

                                         Defendant - Appellant.
                          __________________

                             No. 01-60877
                          __________________

     AMERICAN HERITAGE LIFE INSURANCE COMPANY;
     FIRST COLONIAL INSURANCE COMPANY OF FLORIDA

                                        Plaintiffs - Appellees

                                  v.

     LAKIESHA YOUNG

                                        Defendant - Appellant.

            ______________________________________________

         Appeal from the United States District Court for the
              Northern District of Mississippi, Aberdeen
                            1:00-CV-375-D-A
            ______________________________________________

                             May 22, 2002

Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

     Appellants Katie Beasley, Dwayne Brown, Betty Burnett, Ora

Cain, Melissa Carter, Zinne Mae Collins, Jessie Colvin, Mattie Lee

Conner, J.C. Doss, William Davis, Leonard Charles Naylor, Louise

Harrell, Karen Harris, Margaret Watt Harrison, Eddie Heard, Torsha

     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                  12
Heard, Jacqueline Hicks-Randle, Emma Hill, Louise Howard, Bobby

Johnson, Larry Johnson, Aretha Clark-Jordan, James Jordan, Rosie

Martin, Karen Boyd McFarland, James McFarland, Thalmus Morgan,

Kathy Mosier, Bobby Nash, Rebecca Naylor, Undra Sawyer, Deloise

Sledge, Linda Faye Smith, Preston Tallie, Lexie Tate, Leroy Watt,

Les Wilbon, Arthur Lee Williams and Lakiesha Young (collectively

“Beasley”) filed suit against Appellees American Heritage Life

Insurance    Company   and   First    Colonial   Insurance    Company   in

Mississippi state court (collectively “Heritage”).           Heritage then

filed the instant actions pursuant to 9 U.S.C. § 4, seeking to stay

the state court proceedings and compel arbitration.           In separate

orders, the district courts for the Northern and Southern districts

of Mississippi granted Heritage this relief.        Beasley appeals and

we affirm.

                               DISCUSSION

A.   Jurisdiction

     “Federal courts are courts of limited jurisdiction, and absent

jurisdiction conferred by statute, lack the power to adjudicate

claims. It is incumbent on all federal courts to dismiss an action

whenever it appears that subject matter jurisdiction is lacking.

This is the first principle of federal jurisdiction.”          Stockman v.

Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998) (citation

omitted).    As the party asserting federal jurisdiction, Beasely

bears the burden of demonstrating that jurisdiction is proper. Id.

                                     13
      9 U.S.C. § 16(a)(3) provides jurisdiction over appeals from

“final decision[s] with respect to an arbitration.”         Interpreting

9 U.S.C. § 16(a)(3) in Green Tree Fin. Corp. v. Randolph, 531 U.S.

79 (2000), the Supreme Court held that Congress intended the term

final decision in Section 16(a)(3) to have its ordinary meaning, to

wit, “a decision that ends the litigation on the merits and leaves

nothing more for the court to do but execute the judgment.”            Id. at

86.   Here, the only issue before the district court was whether to

compel arbitration.       When it did so, there was nothing more for it

to do but execute judgment.

      Heritage contends that the district court stayed the federal

action and that therefore the order compelling arbitration was not

final.    See Randolph, 531 U.S. at 87 n.2 (“Had the District Court

entered a stay instead of a dismissal in this case, that order

would not be appealable.”).2          This factual contention is not

supported by the record.       Heritage did not request a stay of the

federal proceedings and the district court order does not provide

for one; because, unlike in Randolph, the federal action did not

contain any substantive claims, there was nothing for the district

courts    to   dismiss.     Accordingly,   we   conclude   that   we    have

jurisdiction to hear this appeal.

B.    McCarran-Ferguson Act

      Beasely contends that section two of the Federal Arbitration

      2
      We express no opinion on the question whether the district
court had discretion to enter such a stay.

                                    14
Act (the “FAA”) has been reverse preempted.        See 9 U.S.C. § 2 (“A

written provision in any...contract...to settle by arbitration a

controversy thereafter arising out of such contract...shall be

valid, irrevocable, and enforceable, save upon such grounds as

exist at law or in equity for the revocation of any contract.”).

In so arguing, Beasely relies on the McCarran-Ferguson act and a

declaration of the Commissioner of Insurance for the Mississippi

Insurance Department, which indicates that it was the policy of the

Mississippi Insurance Department to withhold its approval from

insurance policies containing arbitration clauses.3

      The district courts’ conclusions that the FAA, as applied to

insurance    contracts,   has   not   been   reverse   preempted   by   the

McCarran-Ferguson Act in Mississippi is a legal question we review

de novo. See e.g., Moore v. Liberty Nat’l Life Ins. Co, 267 F.3d

1209, 1220 (11th Cir. 2001). “By its terms, the [McCarran-Ferguson

Act] permits a state law to reverse pre-empt a federal statute only

if:   (1) the federal statute does not specifically relate to the

‘business of insurance,’ (2) the state law was enacted for the

‘purpose of regulating the business of insurance,’ and (3) the

federal statute operates to ‘invalidate, impair, or supersede’ the

state law.     There is no question that the FAA does not relate

specifically to the business of insurance.             Thus, we need only

      3
      Apparently this is no longer the policy of the Commissioner
of Insurance.

                                      15
address the last two requirements.”       Munich Am. Reinsurance Co. v.

Crawford, 141 F.3d 585, 590 (5th Cir. 1998).

     The only enactments identified by Beasely in support of her

contention that the FAA has been reverse-preempted are Miss. Code.

Ann. § 83-53-294 and Miss. Code. Ann. § 83-53-15.5       Neither of these

statutes address the propriety of arbitration clauses in insurance

contracts, they are simply general statutes vesting regulatory

authority   over   insurance   in   the   Commissioner    of   Insurance.

Clearly, the FAA does not directly impair either of these statutes.

A conclusion that these general statutes reverse-preempted the FAA

would be equivalent to a conclusion that all federal laws which

could potentially indirectly affect the regulation of insurance

have been preempted.    Beasely provides no argument or authority

     4
       Section 83-53-29 provides: “The commissioner may, after
notice and hearing, issue any rules and regulations that he deems
necessary to effectuate the purposes of this chapter or to
eliminate devices or plans designed to avoid or render ineffective
the provisions of this chapter. The commissioner may require such
information as is reasonably necessary for the enforcement of this
chapter.    All rules and regulations adopted and promulgated
pursuant to this chapter shall be subject to the Mississippi
Administrative Procedures Law.”

     5
      Section 83-53-29 provides, in pertinent part: “All policies,
certificates of insurance, notices of proposed insurance,
applications for insurance, endorsements and riders delivered or
issued for delivery in this state, and the schedules of premium
rates pertaining thereto, shall be filed with the commissioner for
his approval prior to use.     If after filing, the commissioner
notifies the insurer that the form is disapproved, it is unlawful
for the insurer to issue or use the form.”

                                    16
supporting such a sweeping result.

     As noted above, Beasely appears to rely on a declaration from

the Commissioner of Insurance, indicating that it was his policy to

withhold his approval from insurance forms containing arbitration

clauses.    As   an   initial   matter,    it   is   undisputed    that   the

arbitration clause at issue was not in an insurance contract, it

was in a loan agreement.        Nonetheless language in the McCarran-

Ferguson   Act   evinces   Congress’     unambiguous   intent     to   accord

reverse-preemptive effect solely to “enact[ed]” state law. Beasely

has provided no argument or authority to the contrary.

                                CONCLUSION

     In light of the foregoing analysis, we AFFIRM.

                                    17