812 F.2d 1245
43 Fair Empl.Prac.Cas.  528,42 Empl. Prac. Dec. P 36,936Luther C. COTTON, Plaintiff-Appellant,v.The CITY OF ALAMEDA, a California State Municipality,Alameda Police Department, Robert M. Shiells, anindividual, Does I through X, inclusive,Defendants-Appellees.
No. 85-2812.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Dec. 9, 1986.Decided March 19, 1987.

Raul V. Aguilar, San Francisco, Cal., for plaintiff-appellant.
Carter J. Stroud, Alameda, Cal., for defendants-appellees.
Appeal from the United States District Court for the Northern District of California.
Before WALLACE, POOLE and WIGGINS, Circuit Judges.
WALLACE, Circuit Judge:

1
Cotton appeals the district court's order granting summary judgment in favor of the City of Alameda, its police department, and its chief of police (Alameda) on Cotton's age discrimination claim brought pursuant to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. Secs. 621-634.  The district court concluded that Alameda produced evidence that it had legitimate, nondiscriminatory reasons for not hiring Cotton, and that Cotton had failed to produce evidence that these reasons were a pretext for discrimination.  We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

2
* Cotton is a 47 year old police officer with the Bay Area Rapid Transit (BART) police department.  In the fall of 1981, he applied for a position with the Alameda police department and passed the structured oral examination with a score of 66.71%.  Nevertheless, in January 1982, he signed a waiver removing his name from the eligibility list.  Cotton applied again in March 1983, but failed to achieve a passing score of 60%.  He applied for a third time in July 1983, this time passing with a 65% score.  Alameda conducted a background investigation on Cotton.  Although Alameda did not hire Cotton, it did hire seven other applicants with higher test scores.  In April 1984, Cotton applied a fourth time, scored 62.50%, and was placed on the eligibility list.  Again, Alameda hired four applicants with higher scores, but did not hire Cotton.

3
On November 1, 1984, Cotton filed a complaint in federal district court alleging age discrimination in violation of ADEA and state law.  Alameda moved for summary judgment on the ground that it had stated legitimate reasons for not hiring Cotton and Cotton had not produced any evidence that the reasons were a pretext for discrimination.  The district court granted this motion for summary judgment and then dismissed the pendent state law claims.  We review de novo the decision to grant summary judgment.   Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986).

II

4
Under the ADEA, it is "unlawful for an employer ... to fail or refuse to hire ... any individual [who is at least 40 years of age but less than 70] ... because of such individual's age."    29 U.S.C. Secs. 623(a), 631(a).  A litigant can establish a violation of ADEA using either of two related theories:  he can show disparate treatment--that he suffered intentional discrimination in employment because of his age, or he can show an adverse or disparate impact--that facially neutral employment practices in fact treated more harshly employees in the protected age group.   See Sakellar v. Lockheed Missiles and Space Co., 765 F.2d 1453, 1455-56 (9th Cir.1985) (Sakellar ), cert. denied, --- U.S. ----, 106 S.Ct. 856, 88 L.Ed.2d 896 (1986).  The district court liberally construed Cotton's arguments as stating disparate treatment and disparate impact theories.  We consider each theory in turn.

A.

5
To establish a prima facie ADEA case under the disparate impact theory, "a plaintiff must show that a neutral practice had a significant discriminatory impact upon a protected class," Sakellar, 765 F.2d at 1456, of which the plaintiff is a member.  Since our focus is on the consequences of employer action, statistical evidence usually provides the only rational means of determining whether a facially neutral employment practice had a discriminatory impact.

6
Cotton challenges Alameda's practice of bifurcating the application process.  Alameda processed applicants who were employed for a year or more by another police department as "lateral" applicants and all others as "entry level" applicants.  Lateral applicants were treated in all respects like entry level applicants, except that lateral applicants were not required to pass the written test and the writing skills test, and were given a different version of the structured oral examination.  Following the administration of the oral examination, Alameda prepared separate lists ranking the lateral and entry level applicants according to their test scores.  The lists were effectively combined, however.  Alameda first evaluated for employment those applicants with the highest test scores.  A lateral applicant with a given test score was considered only after all lateral and entry level applicants with higher scores had been evaluated, but before any applicant with lower scores was considered.

7
Cotton contends that lateral applicants as a group must be older than entry level applicants and that Alameda did not hire lateral applicants as frequently as entry level applicants.  Therefore, he argues, a genuine issue of material fact exists as to whether the bifurcated process had a disparate impact on older applicants.  We conclude, however, that the evidence does not establish a prima facie case of disparate impact.  First, Cotton has produced no statistical evidence with respect to applicants over age 40.  The record permits us to conclude only that Alameda had at least one lateral applicant over age 40, namely Cotton.  Cotton has provided no evidence with respect to the ages of other lateral and entry level applicants.  We cannot draw any conclusions from a statistical base of one.  Second, even if we accept Cotton's unsupported assertion that lateral applicants are older than entry level applicants, the only statistical evidence presented suggests that the bifurcated application process did not adversely impact the older group.  During the relevant period, Alameda hired 8% of the lateral applicants, but only 2% of the entry level applicants.

8
We conclude that Cotton has not raised a genuine issue with respect to whether Alameda's bifurcated application scheme adversely impacted older applicants.  Therefore, the district court properly granted summary judgment on the disparate impact theory.

B.

9
To prevail on a disparate treatment theory, a plaintiff must prove intentional discrimination.  A plaintiff makes out a prima facie case of intentional discrimination under the ADEA if he demonstrates that he was within the protected class of individuals between forty and seventy years of age, that he applied for a position for which he was qualified, and that a younger person with similar qualifications received the position.   Sakellar, 765 F.2d at 1455.  Establishing a prima facie case raises an inference of discrimination which the employer can rebut by demonstrating that it had a legitimate, nondiscriminatory reason for its decision.  Id.  The plaintiff then must come forward with evidence that the employer's reason is a mere pretext to conceal its discriminatory motive.  Id.

10
Alameda assumed for purposes of its summary judgment motion that Cotton could make out a prima facie case.  Alameda, however, presented three reasons for not hiring Cotton:  (1) Cotton had an unstable employment history, (2) candidates more promising than Cotton were available, and (3) Alameda did not receive encouraging reports from those who had worked with Cotton.  No one disputes that these are legitimate, nondiscriminatory reasons.  All argument has therefore focused on whether these reasons are credible or instead merely pretexts.  A plaintiff can show pretext in two ways, "either  directly by persuading the court that a discriminatory reason more likely motivated the employer or  indirectly by showing that the employer's proffered explanation is unworthy of credence."   Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981) (Burdine).  Of course, a motion for summary judgment does not require a plaintiff to prove that the employer's reasons are pretextual.  Rather, he need only "tender a genuine issue of material fact as to pretext in order to avoid summary judgment."   Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983).  To do so, he must "produce 'specific facts showing that there remains a genuine factual issue for trial' and evidence 'significantly probative as to any [material] fact claimed to be disputed.' "    Id., quoting Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir.1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1600, 63 L.Ed.2d 786 (1980).

11
We begin by considering the direct evidence avenue for showing pretext.  Cotton's only direct evidence of discrimination relates to Alameda's past employment policies.  Prior to 1979, Alameda considered age to be a job related requirement for police officers and consequently refused to hire anyone over the age of 35.  Since that practice was terminated before Cotton's applications, this fact sheds little or no light on Alameda's employment policies at times relevant to this case.  Standing alone, it does not reasonably permit the inference that Alameda was more likely motivated by Cotton's age than by the reasons it articulated for declining to hire Cotton.

12
We are therefore left to determining whether Cotton can proceed down the second avenue for showing pretext by producing sufficient indirect evidence.  We must consider whether a genuine issue exists with respect to the credibility of each of the employer's proffered explanations.  Cotton argues that the first reason given--job instability--was not credible because he only had 4 jobs in 24 years.  Taken out of context, this argument has plausibility:  in some fields, an average of one job change every six years might be considered a stable rather than an unstable employment history.  Nevertheless, Alameda produced the affidavit and deposition testimony of its Chief of Police who was familiar with employment patterns in the law enforcement field.  He testified that Cotton had moved from the San Francisco Police Department to the Department of Fish and Game, to a job in real estate, and then to BART.  The police chief thought that this pattern "indicated a lack of commitment to law enforcement and instability because the moves were not in a particular career direction."    He also stated that "leaving a municipal police department and going to a quasi law enforcement position with the fish and game ... represents a negative."

13
Cotton, by contrast, has offered no evidence that his employment history was in fact stable and directed.  He did not, for example, produce for comparison the prior employment histories of the applicants hired by Alameda, nor did he offer an empirical study of police officer employment patterns, nor did he offer the testimony of someone familiar with employment patterns in law enforcement who would support his contention that he had a relatively stable employment history.  In short, Cotton has failed to point to any evidence from which we might infer that Alameda's first reason "is unworthy of credence."   Burdine, 450 U.S. at 256, 101 S.Ct. at 1095.

14
The second reason Alameda gave for not hiring Cotton was that more promising candidates were available.  Cotton declares that he had 24 years of experience in law enforcement and contends that most people hired by Alameda had no experience.  He argues that this evidence creates a genuine dispute as to whether the other candidates were more promising.  This argument, however, misses the mark.  The question is not whether Cotton in the abstract had better qualifications than the other candidates.  The question is whether the other candidates are more qualified with respect to the criteria that Alameda actually employs.  The primary criterion used by Alameda was the applicant's score on the structured oral examination.  It is irrelevant that some other criterion, such as experience, might more accurately indicate someone's law enforcement abilities.  The ADEA does not make it unlawful for an employer to do a poor job of selecting employees.  It merely makes it unlawful to discriminate on the basis of age.   See Douglas v. Anderson, 656 F.2d 528, 534 (9th Cir.1981).  We will not second guess the selection criterion used by an employer unless that criterion itself has a disparate impact on the protected class.  In this case, Cotton agrees that the testing itself was fair.  He has failed to show a disparate impact from the selection criteria.

15
The first time Cotton applied, he passed the examination but voluntarily removed his name from the eligibility list.  On his second attempt, Cotton failed the examination.  On his third attempt, he scored 65% and was placed on the eligibility list dated August 18, 1983.  On October 19, 1983, Alameda hired four applicants from this list whose test scores ranged between 93.38% and 81.71%.  Then in November, Alameda hired two more applicants who had scored 80.04% and a third who had scored 70.04%.  On Cotton's fourth attempt, he scored 62.50% on the test, and was placed on the June 7, 1984, eligibility list.  Alameda hired four people from this list who scored above 70%.  Furthermore, for this entire period, all lateral candidates hired by Alameda scored above 80%--more than 15 percentage points above Cotton's scores.  The test results speak for themselves.  There is no genuine dispute that better applicants were available according to the criterion Alameda actually employed.

16
The third reason Alameda gave for not hiring Cotton was that it did not receive encouraging recommendations from those who had worked with Cotton.  Alameda's background investigator, Parsons, had an informal conversation about Cotton with two BART employees, Tamisiea and Nunes.  Although Parsons could recall only the substance of the conversation, he testified at his deposition that Tamisiea and Nunes described Cotton "as being a borderline employee, hinging on submarginal;  would work to an output only that he felt was necessary to get by, and was a constant complainer....  They did harp on the point that he only did as much work as he felt was necessary to get by his supervisors."    Parsons also spoke with Villa, a former BART employee now employed by Alameda.  Parsons testified that Villa described Cotton as being "less than a striver ... as doing just what was necessary to get by."

17
Cotton makes two attacks with respect to Alameda's third reason for not hiring him.  First, he argues that if Alameda had conducted a more thorough investigation, it would have discovered that he had a distinguished record at BART.  It is irrelevant, however, that Alameda's background investigation did not discover all there is to know about Cotton.  The only issue is whether Alameda received and relied upon less than favorable reports about Cotton, as it stated.  In any case, Parsons could not have readily conducted a more thorough investigation because Cotton refused to give Parsons the necessary permission to contact Cotton's employer directly.

18
Second, Cotton argues that it is disputed whether Alameda received discouraging reports because Tamisiea and Nunes have denied that they made the statements attributed to them by Parsons.  The record, however, does not support this argument.  Tamisiea testified that he could not remember the specifics of his conversation with Parsons but that in substance he had said that Cotton "was no ball of fire."    He also testified that he did not believe he used the phrase "submarginal" because he considered Cotton "mediocre" but not "terrible."    Nunes testified that he could not remember anything about the conversation with Parsons.  Finally, Villa testified that he told Parsons that Cotton was lackadaisical, not assertive, was less than a striver, and was a mediocre policeman.  This testimony does not reasonably place Parsons's version of the facts in doubt.  If anything, Tamisiea and Villa support Parsons's general recollection that he was told that Cotton was a mediocre police officer.  We conclude that Cotton has failed to produce evidence that would permit a reasonable inference that Alameda had not received unfavorable recommendations as a result of its background investigation.

III

19
Cotton has not produced evidence that Alameda's bifurcated application process adversely impacts those over 40.  Neither has Cotton produced direct evidence that Alameda's reasons for not hiring him were mere pretexts for discrimination.  Finally, the evidence does not reveal a genuine dispute as to the credibility of any of Alameda's proffered reasons.  Summary judgment was appropriate.

20
AFFIRMED.


Attorney for Appellant

Charles E. Stewart, JR., Esq.
Crown Point, IN

Attorneys for Appellee

Karen M. Freeman-Wilson
Attorney General of Indiana

Christopher L. Lafuse
Deputy Attorney General
Indianapolis, IN

      IN THE
      INDIANA SUPREME COURT

CARLOS K. WILLIAMS,
      Appellant (Defendant below),

      v.

STATE OF INDIANA,
      Appellee (Plaintiff below).

)
)     Supreme Court No.
)     45S00-0002-CR-130
)
)
)
)
)
)

      APPEAL FROM THE LAKE SUPERIOR COURT
      The Honorable James L. Clement, Judge
      Cause No.  45G04-9905-CF-00079

                              ON DIRECT APPEAL

                                June 28, 2001

SULLIVAN, Justice.

       Defendant  Carlos  Williams  was  convicted   of   murder   for   his
participation in the shooting death  of  another  man.   We  find  that  the
testimony of  two  eyewitnesses  was  sufficient  evidence  to  support  his
conviction.

                                 Background

      The facts most favorable to the verdict indicate that on May 5,  1999,
at a house in Gary, Indiana, an argument erupted between the victim,  Amondo
Nelson, and Ramar  Daniels.   After  the  confrontation,  Nelson  left  with
Anthony Holden and Eric Madry.  As they were leaving,  Daniels  told  Nelson
that he was going to kill him.

      Later that day Nelson and Holden were sitting in their  car  in  front
of another residence.  Madry was  standing  behind  the  car  speaking  with
Norman Richardson.  Defendant drove up with Daniels in the  passenger  seat.
Defendant  and  Daniels  exited  their  car  and  approached  Holden’s  car,
Defendant approaching on the driver’s side  while  Daniels  approached  from
the passenger side.  Defendant opened  the  driver’s  side  door  and  said,
“[w]hat was up with that shit with  my  little  brother  earlier.”   Daniels
then leaned into the passenger side and shot Nelson  seven  or  eight  times
with a .32 caliber  automatic.   Defendant  then  shot  Nelson  four  times.
Defendant and Daniels then fled.  Nelson died from multiple  gunshot  wounds
to the chest and abdomen.  In all, he was struck ten times.

      Defendant was convicted  of  Murder,[1]  and  sentenced  to  55  years
imprisonment.

                                 Discussion

      Defendant contends that there was  insufficient  evidence  to  convict
him of murder.  Appellant’s Br. at  5.   Defendant  argues,  “[t]he  alleged
eyewitness’ testimony was inherently unreliable  and  the  investigation  by
the Gary Police Department failed to  establish  that  the  [D]efendant  had
murdered the victim... .”  Id.

      In reviewing a sufficiency of the evidence claim,  the  Court  neither
reweighs the evidence nor assesses the credibility of the  witnesses.    See
Brasher v. State, 746 N.E.2d 71, 72 (Ind. 2001);  Chambliss  v.  State,  746
N.E.2d 73, 77 (Ind. 2001).   We look to the evidence most favorable  to  the
verdict and reasonable inferences drawn therefrom.  Id.  We will affirm  the
conviction if there is probative  evidence  from  which  a  reasonable  jury
could have found the defendant guilty beyond a reasonable doubt.  Id.

      We find here that there was  sufficient  evidence  to  find  Defendant
guilty of murder.  Richardson testified that Defendant and Daniels drove  up
in a car, approached the victim and shot him multiple times.   He  testified
that Daniels shot eight to nine shots into the car from the passenger  side,
and Defendant shot three or four shots into the car from the  drivers  side.
Madry testified that he was sitting in the back  seat  of  the  car  on  the
driver’s side.  He testified that he saw Defendant  approach  and  open  the
driver’s side front door.  (Id.)  He then heard nine  to  ten  shots  coming
from the passenger side.  Madry testified that he ran away, and “heard  like
four more shots” that sounded like they were from a different gun.

      The physical evidence matches the  eyewitness  accounts.   The  police
found bullet casing from both a  .32  caliber  handgun  and  a  .45  caliber
handgun.  The bullet holes in Nelson’s body were of two different sizes.

      Defendant argues  that  the  police  investigation  was  insufficient.
Appellant’s Br. at 7.  The State, however, provided two eyewitness  accounts
that were consistent with each other and with the physical  evidence.   This
was more than sufficient to find defendant guilty of murder.   See  Brasher,
746 N.E.2d at 72 (“It is well established that the  testimony  of  a  single
eye witness is sufficient to sustain a  conviction.”)   Anderson  v.  State,
469 N.E.2d 1166, 1169 (Ind. 1984), cert. denied, 469 U.S. 1226 (1985).   And
though Defendant challenges the credibility of the witnesses, it was  within
the  jury’s  province  to  judge  the  credibility  of  each  witness.   See
Chambliss, 746 N.E.2d at 73; Garland v. State, 719 N.E.2d 1236,  1238  (Ind.
1999), reh’g denied.

                                 Conclusion

      We affirm the judgment of the trial court.

      SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.

-----------------------
      [1]  Ind. Code § 35-42-1-1 (1998).


849 S.W.2d 334 (1993)
In the Matter of Connie Marie HARRIS, A Child under 18 years of age.
STATE of Tennessee, DEPARTMENT OF HUMAN SERVICES, Plaintiff-Appellee,
v.
Kathleen Mae White HARRIS, Thomas William Harris, Defendants,
Kim L. Kirk and Jon S. Jablonski, Guardians Ad Litem, Appellants.
Supreme Court of Tennessee, at Nashville.
February 22, 1993.
*335 Charles W. Burson, Atty. Gen. Reporter, Dianne Stamey Dycus, Asst. Atty. Gen., Nashville, for plaintiff-appellee.
Kim L. Kirk, Woods & Woods, Nashville, for defendant/guardian ad litem Kathleen Harris.
Jon S. Jablonski, Nashville, for defendant/guardian ad litem for Connie Marie Harris.
Jean Crowe, Nashville, for defendant/appellee Thomas Harris.
John Michael Thompson, Nashville, for defendant/guardian ad litem Kathleen Harris.

OPINION
REID, Chief Justice.
This case presents for review the assessment of guardian ad litem fees as court costs against the Tennessee Department of Human Services in a proceeding for the termination of parental rights initiated by the Department. The case is remanded for re-adjudication of costs.
The Department filed a petition to terminate the parental rights of the father and the mother of a minor, pursuant to T.C.A. § 37-1-147 (1991), after the child had been found to be dependent and neglected. The record does not show the specific statutory ground on which the petition was based; however, the record indicates that the father has been incarcerated for an offense involving abuse of the child. Also, though not specifically appearing as a finding of fact, the record indicates that the child and the parents are indigent. Upon motion of the Department, the trial court, pursuant to Rules 4.04(2) and 17.03 of the Tennessee Rules of Civil Procedure, appointed an attorney as guardian ad litem for the minor and another attorney as guardian ad litem for the mother, who was alleged in the petition to be incompetent. At the appropriate times, the guardians ad litem submitted statements in the amounts of $3,505 and $4,140 for services rendered, calculated at $100 per hour. The trial court approved the amounts as reasonable and assessed the fees, as court costs, against the Department.
The Court of Appeals reversed, but holding only that the trial judge was without authority to assess the costs against the state agency. The appeal of the guardians ad litem insists that the fees were assessed properly. The Department contends that the fees must be paid, if at all, by the county.
T.C.A. §§ 37-1-147 et seq. set forth the several grounds and the procedure for terminating parental rights to a minor. T.C.A. § 37-1-149(a) (1991) provides for the appointment of a guardian ad litem for a child who is the subject of a termination proceeding. It states, in part:
The court at any stage of a proceeding under this part, on application of a party or on its own motion, shall appoint a guardian ad litem for a child who is a party to the proceeding if such child has no parent, guardian or custodian appearing on such child's behalf or such parent's, *336 guardian's or custodian's interests conflict with the child's or in any other case in which the interests of the child require a guardian... .
Rule 17.03 also provides for the appointment of guardians ad litem for children and for incompetent persons. It states, in part:
... The court shall at any time after the filing of the complaint appoint a guardian ad litem to defend an action for an infant or incompetent person who does not have a duly appointed representative, or whenever justice requires. The court may in its discretion allow the guardian ad litem a reasonable fee for his services, to be taxed as costs.
T.C.A. § 37-1-150 (Supp. 1992) authorizes the assessment of costs, including guardian ad litem fees, against the county. It also authorizes the assessment of a child's guardian ad litem fees against the Department in a specific category of cases. That section provides, in part:
(a) The following expenses may be a charge upon the funds of the county upon certification thereof by the court:
.....
(3) Reasonable compensation for a guardian ad litem except that in the case of indigents the state, through the department of human services, shall pay for the guardian ad litem required by § 37-1-149 for proceedings arising under part 4 of this chapter; provided, that no compensation ordered to be paid by the department shall exceed the maximum amount of one hundred dollars ($100) per day of hearing, with a maximum total compensation for all days of five hundred dollars ($500) as allowed by subsection (e) for attorneys appointed to represent juveniles accused of being delinquent.
The first consideration in determining if the fees can be charged against a state agency is that the statutory power to assess costs against the state is in derogation of the state's sovereignty and must be strictly construed. State ex rel. Chanaberry v. Stooksbury, 176 Tenn. 687, 689, 145 S.W.2d 775, 776 (1940). Consequently, general statutes regarding the taxation of costs are not sufficient authority to tax costs against the state. Rule 54.04(1) of the Tennessee Rules of Civil Procedure, provides that court costs may be taxed against the state only when specifically authorized. That rule states:
Except when express provision therefor is made either in a statute or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the state, its officers, and agencies shall be imposed only to the extent permitted by law.
The appellants acknowledge that the above rules and statutes do not authorize the payment of fees of $100 per hour, even though those fees have been found to be reasonable compensation for services rendered. They insist, however, that authority can be found in T.C.A. § 20-12-134, read together with Rule 17.03, to authorize the action taken by the trial court in this case. T.C.A. § 20-12-134 provides:
In all cases where any civil action is brought on behalf of the state, in law or equity, and the state shall be adjudged to pay all costs, such costs shall be paid out of the treasury, upon the same being properly certified.
The effect of such an interpretation would be to allow the taxation of guardian ad litem fees, without limitation as to amount except as deemed reasonable by the court, against the state in all cases initiated by the state, except in proceedings arising under Title 37, Chapter 1, part 4, which is titled "Mandatory Child Abuse Reports." In cases arising under that part, the per day and per case limitations on the award of fees would be applicable. The legislative history of the statute does not support that interpretation. The general provision authorizing the assessment of guardian ad litem fees against the county was enacted in 1970. See 1970 Tenn. Pub. Acts 600, § 49. The exception allowing the taxation of guardian ad litem fees against the Department in proceedings arising under part 4 relating to the reporting of child abuse was added in 1977. See 1977 Tenn. *337 Pub.Acts 482, § 7; T.C.A. § 37-1-150(a)(3). The obvious intent of the legislature was to allow the limited award of guardian ad litem fees against the state only in those excepted cases, rather than to allow fees unlimited as to amount in all other cases initiated by the state. This construction is also consistent with the rule of construction that where there is a conflict between a special statute and a general statute, the special statute will be given effect. Watts v. Putnam County, 525 S.W.2d 488, 492 (Tenn. 1975); Continental Tennessee Lines, Inc. v. McCanless, 209 Tenn. 324, 354 S.W.2d 57, 58-59 (1962).
The result is that the fee allowed the guardian ad litem for the mother and the fee in the amount allowed the guardian ad litem of the child cannot be assessed against the Department. If it should be found that the parents were indigent and the petition was based on grounds set forth in part 4, the child's guardian ad litem fees could be charged against the Department, subject to the limitations as to amounts in T.C.A. § 37-1-150(a)(3). That determination may be made, if necessary, on remand.
The judgments of the trial court and the Court of Appeals are set aside and the case is remanded to the trial court for the assessment of costs at trial and on appeal and for any further proceedings that may be necessary.
DROWOTA, O'BRIEN, DAUGHTREY and ANDERSON, JJ., concur.


803 F.Supp. 626 (1992)
LORAL FAIRCHILD CORP., Plaintiff,
v.
VICTOR COMPANY of JAPAN, LTD., et al., Defendants.
No. 92 CV 0128 (SJ).
United States District Court, E.D. New York.
October 13, 1992.
*627 Charles D. Kreps, Jr., Kostelanetz Ritholz Tigue & Fink, New York City, James H. Wallace, Jr., Wiley, Rein & Fielding, Washington, D.C., for plaintiff.
Philip Furgang, New York City, Richard J. Codding, Spensley Horn Jubas & Lubitz, Los Angeles, Cal., for defendant Murata Business Systems, Inc.

MEMORANDUM AND ORDER
JOHNSON, District Judge:

INTRODUCTION
Plaintiff Loral Fairchild Corp. commenced this action against defendants Victor Company of Japan, US JVC Corp., Nikon Corporation, Nikon, Inc., Murata Machinery Ltd., Murata Business Systems, Inc., Oki Electric Industry Co. Ltd, Oki America, Inc., Ricoh Company, Inc., and Ricoh Corporation pursuant to 35 U.S.C. §§ 271 & 284 alleging that the defendants manufactured, marketed and distributed infringing products. Defendant Murata Machinery, Ltd. moves pursuant to Fed. R.Civ.P. 12(b)(2) to dismiss the complaint against it for lack of in personam jurisdiction.[1] For the reasons stated below, the motion is denied.

*628 I. PROCEDURAL HISTORY
On November 14, 1991, plaintiff Loral Fairchild Corp. ("Loral Fairchild"), a Delaware corporation with a principal place of Business in New York and a `presence' in Virginia, commenced this patent infringement suit in the Eastern District of Virginia against Murata Machinery, Ltd. ("Murata-Japan") and several other defendants. Murata-Japan is a Japanese manufacturer of facsimile machines, textile machinery and other products. The complaint alleges that Murata-Japan's facsimile machines utilize `charge couple devices' or `CCDs' (semiconductor `chips' used as a light sensing component) which infringe upon plaintiff's United States Patent No. 3,931,674 (the "'674 patent") in violation of 35 U.S.C. §§ 271 & 284 which prohibit the unauthorized manufacture, sale and importation of patented products and technology. Subsequently, on November 26, 1991, plaintiff amended its complaint adding Murata Business Systems, Inc. ("Murata-America"), the United States based distributor of the Murata-Japan facsimile machines, as a co-defendant.
On January 3, 1992, the Virginia Court entered an `order', pursuant to 28 U.S.C. § 1404(a), transferring the action to the Eastern District of New York "for purposes of convenience". However, the Order expressly reserved Murata-Japan's right to challenge Personal Jurisdiction in the transferee forum. The action was transferred into the Eastern District on January 13, 1992. Then, on January 21, 1992, Murata-Japan filed a motion to dismiss pursuant to Fed.R.Civ.P. ("Rule") 12(b)(2) challenging Virginia's ability to exercise in personam jurisdiction over it.[2] Murata-America, however, makes no such challenge.

II. FACTS
The Court makes the following findings of fact. Murata-Japan is a Japanese corporation with a principal place of business in Kyoto, Japan. It owns 100% percent of the stock of Murata America, Inc. ("Murata America, Inc."), which in turn owns 100% of the stock of Murata-America,[3] a North Carolina Corporation with a principal place of business in Texas. Four of the seven members of Murata-America's board of directors are Murata-Japan representatives.
Murata-America distributes Murata-Japan facsimile machines to retailers within the United States and, specifically, Virginia. The facsimile machines are accompanied by operation manuals designating Murata-Japan as the source and bearing the "Murata" trademark which is registered with Murata-Japan. In addition, the operation manuals state that their product complies with United States technical requirements.
Retail dealers in Virginia sell facsimile machines manufactured by Murata-Japan to Virginia residents. The Court takes judicial notice of advertisements taken from the Washington Post from January 24, 1992 to March 1, 1992. Plaintiff's Exhibit ("Pl.Exh.") 1. The advertisements indicate that at least three retail chains sell Murata-Japan facsimile machines. The court finds that Murata-Japan has derived a substantial economic benefit from the sale of these products.

III. ANALYSIS
The issue is whether Murata-Japan had sufficient minimum contacts with Virginia to justify the exercise of `specific' in personam jurisdiction over it. "The burden of proving jurisdiction rests with the plaintiff." Medeco Sec. Locks, Inc. v. Fichet-Bauche, 568 F.Supp. 405, 407 (D.Va. 1983). Plaintiff predicates jurisdiction over Murata-Japan on the Virginia long-arm statute.[4] When evaluating the propriety of *629 long-arm jurisdiction, a two-step analysis is normally required. English & Smith v. Metzger, 901 F.2d 36, 38 (4th Cir.1990). First, the court must determine whether the statutory language applies to the defendant. Id. Then, assuming the answer to the first question is in the affirmative, the court must determine whether the assertion of jurisdiction is consistent with the Due Process Clause of the United States Constitution. Id.; See also Peanut Corp. of America v. Hollywood Brands, Inc., 696 F.2d 311, 313 (4th Cir.1982).[5]

A. The Statutory Scheme

The Virginia long-arm provides in pertinent part:
A. A court may exercise personal jurisdiction over a person (natural or fictitious), who acts directly or by an agent, as to a cause of action arising from the person's:

.   .   .   .   .
3. Causing tortious injury by an act or omission in this Commonwealth....

4. Causing tortious injury in this Commonwealth by an act or omission outside this commonwealth if he ... derives substantial revenue from goods used or consumed or services rendered in this Commonwealth....
Va.Code Ann. § 8.01-328.1(A) (Supp.1992) (emphasis added). Subsection (A)(3) applies to conduct transpiring in Virginia while subsection (A)(4) extends to conduct outside Virginia which causes injury within. Both subsections, however, pertain to conduct causing a tortious injury in Virginia. Each therefore has relevance since "patent infringement is a tort." Carbice Corp. of America v. American Patents Development Corp., 283 U.S. 27, 51 S.Ct. 334, 75 L.Ed. 819 (1931); Marston v. Gant, 351 F.Supp. 1122, 1124 (E.D.Va.1972). Thus, assuming tortious injury resulted in Virginia, the question remains whether the infringing acts happened within or outside Virginia.
Plaintiff, in its complaint, alleges that Murata-Japan "actively induced infringement" by Murata-America in violation of 35 U.S.C. § 271(b)[6] by manufacturing facsimile machines in Japan which Murata-America subsequently imported and sold within Virginia.[7] "To `actively induce' patent infringement means in essence to aid and abet such infringement by another." Marston v. Gant, 351 F.Supp. 1122, 1125 (E.D.Va.1972). This language requires some `affirmative' act on the part of a defendant which aided another's infringement. See Marston, 351 F.Supp. at 1125. Thus, Murata-Japan's affirmative acts which made Murata-America's infringement possible, vis-a-vis importation and sales, are at issue in determining whether § (A)(3) or (A)(4) are implicated.
In Marston, defendant Okabe, a Japanese corporation, manufactured patent infringing furniture in Japan and sold it to *630 Japanese exporters who in turn sold the goods to distributors located in the United States. Okabe, like Murata-Japan, had no control over sales or sales methods within Virginia, never communicated with Virginia, and manufactured no goods in Virginia. The court stated:
While the court is sympathetic to [the] argument that an alien company should be required to answer suit in any district where its goods are resold after it has sold to exporters with knowledge that the goods will be shipped to the United States, it simply cannot so hold with in the context of [subsection] (A)(3) in the absence of affirmative acts [in Virginia] tending to induce infringement.

Marston, 351 F.Supp. at 1125 (Emphasis supplied).
Although sales by Murata-America are alleged to have occurred in Virginia, no affirmative acts by Murata-Japan in this regard are cited by plaintiff. Murata-Japan, on the other hand, has submitted declarations from Murata-Japan and Murata-America executives attesting that Murata-Japan has no involvement in Virginia distribution. Therefore, as the record is devoid of any Murata-Japan affirmative acts in Virginia which aided or abetted the alleged infringement, subsection (A)(3) of the Long-Arm is ineffectual.
However, the facts satisfy the language of subsection (A)(4) which provides for the exercise of in personam jurisdiction over a defendant causing tortious injury in Virginia "by an act or omission outside the State." It applies to non-resident corporations causing tortious injury in Virginia as a result of acts occurring outside the state. Murata-Japan's manufacturing of the infringing facsimile machines and subsequent sale of them to Murata-America, occurring in Japan, which according to plaintiff induced Murata-America's infringement, satisfy the requisite `act outside the state' language.[8]
Thus, Subsection (A)(4) of the Virginia long-arm applies to Murata-Japan's manufacturing and sale to Murata-America of facsimile machines in Japan, which allegedly induced tortious patent infringement in Virginia. Accordingly, the first part of the dual long-arm jurisdiction analysis is satisfied.

B. Due Process Considerations

The second part of the Long-Arm inquiry asks whether Virginia may exercise jurisdiction over Murata-Japan under the Due Process Clause. The Due Process clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgement against a nonresident defendant. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980), citing Kulko v. California Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978).[9] It authorizes a court to exercise personal jurisdiction over a nonresident defendant whom purposefully established certain `minimum contacts' with the forum state. International Shoe v. Washington, 326 U.S. 310, 316 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Application of the rule varies with the nature and quality of the contacts, but in each case, there must "be *631 some act by which the defendant `purposefully avails' itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). The exercise of that privilege gives rise to certain obligations arising out of the in-state activities, requiring a corporation to respond to a suit related to those affairs. See International Shoe v. Washington, 326 U.S. at 319, 66 S.Ct. at 159. Therefore, once a defendant `purposefully directs' his activities at residents of the forum, and the litigation results from alleged injuries that "arise out of or relate to those activities", a court may exercise `specific' jurisdiction over that defendant in harmony with Due Process of Law.[10]Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 1872, n. 8 (1984). To that end, the court must focus on the "relationship among the defendant, the forum, and the litigation." Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2580, 53 L.Ed.2d 683 (1977). Nevertheless, whether in fact a defendant purposefully established the requisite `minimum contacts' in the forum state, remains the constitutional touchstone. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183 (1985).
The Court finds that Murata-Japan closes no sales and performs no services in the Commonwealth of Virginia. It maintains no offices or bank accounts in Virginia, and all shipments of facsimile machines made by Murata-America are shipped to ports in states other than Virginia. All advertising, marketing, and distribution of Murata-Japan facsimile machines in Virginia is controlled solely by Murata-America. In short, Murata-Japan's sole `contacts' with Virginia, relating to the patent infringement, exist by virtue of the fact that (a) their American subsidiary serves the Virginia market and (b) their products have allegedly caused tortious injury in that forum.
However, despite the apparent dearth of contacts, the court may nonetheless exercise in personam jurisdiction over Murata-Japan consistent with the `minimum contacts' requirements of Due Process if it can pierce the corporate veil and attribute Murata-America's Virginia contacts to its parent, Murata-Japan, or it finds that Murata-America placed its goods into the stream of commerce purposefully directing them towards the Virginia marketplace causing injury to the plaintiff. Reynolds Metals Co. v. Columbia Gas System, Inc., 669 F.Supp. 744, 748 (E.D.Va.1987).

(1) Imputing Murata-America's contacts to the Murata-Japan

Murata-America has consented to jurisdiction in Virginia based upon its sales, distribution, advertising and overall purposeful activity directed towards that State relating to Murata-Japan facsimile machines. If Murata-America's contacts can be attributed to Murata-Japan, then the jurisdictional hurdle can be vaulted.
The Supreme Court has held that "the activities of a subsidiary are not necessarily enough to render a parent [corporation] subject to a court's jurisdiction." Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705, n. *, 108 S.Ct. 2104, 2111, n. *, 100 L.Ed.2d 722 (1988), citing Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 336-337, 45 S.Ct. 250, 251-252, 69 L.Ed. 634 (1925). The doing of business by a subsidiary in a state, without more, does not confer jurisdiction over the foreign parent. Goldrick v. D.M. Picton Co., 56 F.R.D. 639, 641-2 (E.D.Va.1971). `Control' over the conduct and affairs of the subsidiary is the essential element required before a court may `pierce the corporate veil' and confer jurisdiction *632 over the foreign parent based upon the subsidiary's contacts. Reynolds Metals Co. v. Columbia Gas System, Inc., 669 F.Supp. 744, 748 (E.D.Va.1987).
Courts must exercise this veil-piercing power `reluctantly', and `cautiously', and "the burden of establishing a basis for the disregard of the corporate fiction rests on the party asserting such a claim." DeWitt Truck Brokers v. W. Ray Flemming Fruit Co., 540 F.2d 681, 683 (4th Cir.1976) (emphasis added). Therefore, "whether in fact the corporate veil should be pierced is necessarily a factual inquiry to be conducted on a case by case basis." Keffer v. H.K. Porter Co., Inc., 872 F.2d 60, 65 (4th Cir.1989). Under Keffer, the following factors suggest the propriety of piercing the corporate veil: gross undercapitalization of the subsidiary; siphoning by the parent of the subsidiary's funds; non-functioning of the subsidiary's officers and directors; and absence of corporate records. Id.
Applying those principles to this case, plaintiff Loral Fairchild has failed to satisfy the requisite burden. The only allegations the plaintiff has made concerning Murata-Japan's relation to Murata-America's patent infringing Virginia activities is that Murata-America is a wholly-owned subsidiary of Murata-Japan and that the majority of Murata-America's directors, four of the seven, are Murata-Japan representatives. However, complete ownership of the subsidiary transacting forum business, alone, "is insufficient to disregard the corporate identity." Reynolds, 669 F.Supp. at 750. Furthermore, though Murata-Japan may in fact `control' the Murata-America board, that does not necessarily create the relation of principle and agent between the parent and subsidiary. See Certain-Teed Products Corp. v. Wallinger, 89 F.2d 427, 434 (4th Cir.1937).
According to Murata-Japan's uncontested submissions in support of their motion, Murata-America is separately incorporated, fully-capitalized and an independently operated business entity. Murata-America controls its own day-to-day operations, sets its own management policies and maintains separate financial records, accounts and books. Furthermore, the subsidiary and parent share no office space, observe all corporate formalities, and Murata-America does not hold its offices or conduct out to the public as that of Murata-Japan. More importantly, with respect to the allegedly infringing facsimile machines, Murata-America has complete control over all dissemination of advertising and distribution to retailers in Virginia.
The record herein lacks any indication that Murata-Japan treats Murata-America's activities as that of its own or so pervasively runs the subsidiary as to justify disregarding their separate identities. In any event, Murata-Japan's controlling ownership entitles it to choose directors and set general policies for Murata-America without forfeiting the protection of the corporate veil. See Newcomb v. Flower Industries, Inc., 814 F.2d 978, 980 (4th Cir.1987).
In short, plaintiff Loral Fairchild has failed to satisfy its burden of establishing the appropriateness of the courts piercing the corporate veil and imputing Murata-America's Virginia contacts to its Japanese Parent so as to justify the exercise of in personam over Murata-Japan. Thus, Virginia may not exercise personal jurisdiction over Murata-Japan based upon Murata-America's forum contacts.

2. Stream of Commerce

Plaintiff Loral Fairchild asserts that Murata-Japan's placing of facsimile machines into the `stream of commerce', which ultimately carried the products into Virginia where they caused tortious patent infringement, established sufficient forum contacts, thus justifying the exercise of personal jurisdiction. Murata-Japan, in contrast, insists that this contact is too tenuous to support jurisdiction. Both parties, however, contend that World-Wide Volkswagen, supra, supports their respective arguments.
In World-Wide Volkswagen, plaintiff brought suit in Oklahoma for personal injuries arising out of an accident in Oklahoma *633 in which plaintiff's Audi automobile caught on fire when rear-ended by another automobile. The regional distributor and retail dealer who sold plaintiff the car in New York successfully challenged the power of the Oklahoma court to exercise jurisdiction. However, the Supreme Court, in its decision, provided the following dicta which applies to the case herein:
If the sale of a product of a manufacturer ... is not simply an isolated occurrence, but arises from the from the efforts of the manufacturer or distributor to serve directly or indirectly the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has been the source of injury to its owners or to others. The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.

Id., 444 U.S., at 297-298, 100 S.Ct., at 559 (emphasis supplied).
The Supreme Court nevertheless dismissed the two World-Wide Volkswagen defendants. It held that although it was foreseeable that the car sold by the New York-New Jersey-Connecticut tristate dealer and the regional distributor would cause injury in Oklahoma, `foreseeability' of causing injury in another state is not the `benchmark' for establishing sufficient forum contacts. World-Wide Volkswagen, 444 U.S. at 295, 100 S.Ct. at 559. Instead, "the foreseeability that is critical to due process analysis ... is that the defendant's conduct and connection with the forum state are such that [they] should reasonably anticipate being haled into court there." Burger King, 471 U.S. at 474, 105 S.Ct. at 2174, citing World-Wide Volkswagen, 444 U.S. at 286, 100 S.Ct. at 567 (emphasis added).
In determining when a defendant `should reasonably anticipate' litigation in a particular forum, the Supreme Court draws from the reasoning behind the abovementioned `purposeful availment' requirement. That basis "ensures that a defendant will not be hailed into a jurisdiction solely as a result of `random' ... contacts or the unilateral activity of another." Burger King, 471 U.S., at 475, 105 S.Ct. at 2183, citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 773, 104 S.Ct. 1473, 1477, 79 L.Ed.2d 790 (1984). Moreover,
the focus on a defendant's own acts serves the underlying due process objective of fair notice, giving `a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.'
Chung v. Nana Development Corp., 783 F.2d 1124, 1127 (4th Cir.1986), quoting World-Wide Volkswagen, 444 U.S., at 297-8, 100 S.Ct., at 567.
In short, `purposeful availment' provides a corporation with `fair warning' that conducting those activities may subject them to suit in that forum. World-Wide Volkswagen, 444 U.S., at 298, 100 S.Ct., at 567. Under those circumstances, it is "presumptively not unreasonable to require [the corporation] to submit to the burdens of litigation in that forum." Burger King, 471 U.S., at 476, 105 S.Ct., at 2174. Stated another way, a defendant can `reasonably anticipate' having to account in a jurisdiction for consequence that arise proximately from their deliberate activities which create a `substantial connection' with the forum state. See id., 471 U.S., at 474-475, 105 S.Ct., at 2183-2184.
In Weight v. Kawasaki Motors Corp., U.S.A., 604 F.Supp. 968 (E.D.Va.1985), the court applied the `stream of commerce' theory in a case similar to this one. Id. at 970. The court asserted jurisdiction over the Japanese manufacturer of a defective motorcycle which caused injury in Virginia under the `stream of commerce' theory despite the fact that the foreign corporation sold all its motorcycles intended for the American market to its American subsidiary, *634 f.o.b. Japan,[11] had no license to do business in Virginia, maintained no offices in that State, made no sales to local distributors, and shipped nothing into Virginia ports. Id.
The court pointed to the parents, KHI's, 96% ownership of the subsidiary's stock, a common board member between both corporations, and the fact that the owner's manual written by the Japanese parent describing the motorcycles sold to its subsidiary KUSA was written in English and stated the vehicles complied with United States safety standards. See Weight, 604 F.Supp. at 970. Additionally, nineteen Virginia retailers sold the KHI manufactured motorcycles distributed by KUSA. Accordingly, the court surmised that "it is clear that KHI knew and intended that many of the motorcycles manufactured by them would be purchased by consumers in Virginia and that this activity would have consequences in Virginia." Id.
Moreover, it found that KHI derived substantial economic benefits from KUSA's Virginia sales since KUSA produced profits for KHI from dividends paid to, and purchases of motorcycles made from, the parent. Id. Accordingly, the court determined that "the sale of motorcycles in Virginia bought from KHI constitute[d] a substantial source of revenue in actual dollar amounts." Id. That benefit derived by KHL from the Virginia market translated into protection by Virginia law. See id. It was immaterial "that the product was not placed directly in Virginia by KHI, but instead was marketed by one whom KHI could foresee would cause the product to enter Virginia." Id., at 970-971. As the court explained:
the fact a foreign parent conducts its marketing and distribution in the United States through an independent distribution system does not shield it from in personam jurisdiction.
Id., at 971 (emphasis supplied); See also Lasky v. Continental Products Corp., 569 F.Supp. 1225, 1227 (E.D.Pa.1983); United States v. Toyota Motor Corp., 561 F.Supp. 354, 359 (C.D.Cal.1983). Due Process requirements are satisfied so "long as the foreign manufacturer knew and intended that its [products] would be sold in Virginia." Weight, 604 F.Supp. at 971.
The Weight court concluded in essence that KHI should have expected to be haled into a Virginia court for a suit relating to the products it manufactured which the American subsidiary distributed. Similarly, under Weight, the exercise of jurisdiction by Virginia over Murata-Japan comports with Due Process. In fact, employing the factors accentuated in that case, the reasons for exercising jurisdiction over Murata-Japan in this case are even more compelling.
First, parent-Murata-Japan owns not 96% but 100% of its subsidiary/distributor's stock. Second, Murata-Japan has majority representation on the subsidiary's board; in Weight, they had only one common board member. Third, although the record does not reveal the exact number of local retailers selling the Murata-Japan facsimile machines distributed by Murata-America or the total amount of economic benefit realized by Murata-Japan, advertisements taken from the Washington Post, submitted by the plaintiff, nonetheless indicate significant economic benefit on the part of Murata-Japan. This mass marketing of several different models of Murata-Japan facsimile machines in Virginia buttresses the belief that Murata-Japan derives substantial economic benefit from the sales by Murata-America in Virginia and through the initial purchases from the parent.
Moreover, Murata-Japan, in its reply papers, fails to dispute Plaintiff's allegation that Murata-Japan has "derived substantial economic benefit from the sale of the infringing products" or that the "infringing products were marketed by one whom [Murata-Japan] could foresee would cause the products to enter Virginia." (Defendant's Reply at 13). According to Weight, this translates into receiving the protection of Virginia law "even though the product *635 was not placed directly in Virginia", by Murata-Japan, but instead was marketed by Murata-America, one whom Murata-Japan could foresee would cause the facsimile machines to enter Virginia. See Weight, 604 F.Supp. at 970-971. In addition, Murata-Japan, like the Japanese defendant in Weight, provides owners manuals with the facsimile machines sold to Murata-America, that are written in English stating that the machines comply with United States technical requirements.
Murata-Japan's majority control of the Murata-America board coupled with the amount and intensity of the subsidiary's Virginia distribution efforts illustrate that Murata-Japan could specifically foresee the product entering Virginia and impacting consumers in that forum. In addition, Murata-Japan derived substantial economic benefit from the Virginia sales and protection of Virginia laws. In total, Murata-Japan knew it had indirectly established contacts with the forum and intended such a result. Stated differently, Murata-Japan could have anticipated this lawsuit from its manufacture of infringing products sold by its distributor in Virginia. This in turn serves as "purposeful availment" and, under World-Wide Volkswagen and Weight, allows Virginia to exercise in personam jurisdiction over Murata-Japan is consistent with Due Process limitations under the `stream of commerce' theory.
Nevertheless, Murata-Japan opposes application of the `stream of commerce' theory and the Weight holding on two grounds. It claims that the Fourth Circuit narrowly interprets this basis, and that the Weight holding is distinguishable since it pertains to a products liability action causing physical injury. Murata-Japan contends that an infringing product is not the sort of `defective' product which the World-Wide Volkswagen language contemplated. However, these contentions fail to detract from the suitability of in personam jurisdiction over Murata-Japan. In fact, the cases cited by Murata-Japan in support of these claims only serve to bolster the conclusion that Virginia may utilize the `stream of commerce' basis to effect in personam jurisdiction over Murata-Japan.
Murata-Japan cites Sowards v. Switch Energy, Co., Inc., 744 F.Supp. 1399 (W.D.Va.1990) for the proposition that `stream of commerce' is narrowly interpreted in the Fourth Circuit. In that case, the court refused to assert jurisdiction under the `stream of commerce' theory against a Kentucky electrical supplier, Cumberland, which allegedly contributed to a trespass by delivering power to another defendant knowing that it would be conducted across Soward's land without Soward's authority. Id. at 1401. The court however had no evidence that Cumberland knew the power it supplied to the other defendant would be routed across the plaintiff's land. Id. Moreover, Cumberland erected no transmission lines beyond the Kentucky border into Virginia, thus, belying the plaintiff's claim that they `purposefully directed' activities towards Virginia. Id. In addition, the court did not regard electrical power as a `defective product' for `stream of commerce' purposes. Id.
In contrast, Murata-Japan made no attempt to prevent its products from having consequences in Virginia. Furthermore, it cannot be said that Murata-Japan lacked knowledge of Virginia consequences as Cumberland did in Sowards.
While the Fourth Circuit has yet to apply the the "stream of commerce" theory outside the defective product context, other circuit and district courts have exercised jurisdiction over foreign manufacturers of patent infringing products pursuant to the `stream of commerce' logic. For example, in Knoll International, Inc. v. Continental Imports, Inc., 192 U.S.P.Q. 644 (E.D.Pa.1976) utilized that logic in exercising jurisdiction over the Italian manufacturer of infringing furniture. Continental had neither any offices, employees, bank accounts, nor any other indica of business in the Pennsylvania forum. The defendant, however, manufactured and sold the infringing product in Italy to another defendant in Italy, who in turn, distributed the product in the United States. Continental, like Murata-Japan, did not ship the product directly into the forum and title passed overseas.
*636 Nevertheless, the court upheld jurisdiction over the patent infringing foreign defendant noting that Continental has "indirectly pursued his business interests in this Commonwealth since the indirect shipment of merchandise constitutes `doing business' within the ... limits of due process." Id., at 646; See also Honeywell, Inc. v. Metz, 509 F.2d 1137 (7th Cir.1975) (Court held that German manufacturer of infringing flash units, shipped f.o.b. to United States and sold exclusively by two independent distributors in United States, knew they would be sold in United States and purposefully promoted American sales ensuring infringement would take place; although defendant may not have entered Illinois, it placed its products into the `stream of commerce' under such circumstances that it should have anticipated that injury through infringement would occur there). Thus, courts have utilized the `stream of commerce' theory against patent infringing foreign manufacturers, deeming those types of products as defective as those causing other sorts of injuries.
Notwithstanding the above, Murata-Japan contends that under the circumstances, the exercise of jurisdiction would impose an unreasonable burden upon them. This argument stems from the Supreme Court's acknowledging that once it is determined that minimum contacts exist with the forum, the reasonableness of the assertion of personal jurisdiction may be considered in light of other factors to determine whether it would comport with "traditional notions of fair play and substantial justice." Burger King, 471 U.S., at 476, 105 S.Ct., at 2184, quoting International Shoe, 326 U.S., at 320, 66 S.Ct., at 160. These factors include "the burden on the defendant"; "the interests of the forum state in adjudicating the dispute"; "the plaintiff's interest in obtaining the most efficient resolution of controversies"; and "the shared interest of the several states in furthering fundamental substantive social policies." World-Wide Volkswagen, 444 U.S., at 292, 100 S.Ct., at 564.
However, "where a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case" to render jurisdiction unreasonable. Burger King, 471 U.S. at 477, 105 S.Ct., at 2185. Because Murata-Japan has failed to satisfy that burden, the exercise of in personam jurisdiction over them remains reasonable and in harmony with Due Process considerations.
Finally, Murata-Japan maintains that the litigation would impose an extreme burden on the foreign corporation since its employees would be required to travel from Japan to New York. Any inconvenience that Murata-Japan may suffer must be weighed against a public policy which favors providing a forum for an injured resident to bring an action against a non-resident manufacturer. See Weight, 604 F.Supp. at 971. In light of the fact that the depositions of Murata-Japan personnel will likely occur in Japan, the Court finds that any inconvenience to Murata-Japan in defending this lawsuit is outweighed by public policy considerations.

IV. CONCLUSION
Based upon the foregoing, the motion to dismiss the complaint against Murata Machinery, Ltd. is hereby denied.
So Ordered.
NOTES
[1]  Originally, the Defendant also moved to quash service of process on the ground that it was not properly served under the Hague Convention. After this Court heard oral argument on this motion and prior to the issuance of this decision, the Plaintiff properly served the Defendant and the Defendant withdrew its objection to service.
[2]  Neither party to this motion disputes the application of Fourth Circuit law.
[3]  Murata-America admits jurisdiction.
[4]  Va.Code Ann. § 8.01-328.1 (Supp.1992) provides for the exercise of personal jurisdiction over non residents who engage in some purposeful activity within the Commonwealth of Virginia, as to a cause of action arising from that activity.
[5]  The Fourth Circuit recognizes that the Virginia Long-Arm extends in personam jurisdiction to the outermost parameters of Due Process. Peanut Corp. of America v. Hollywood Brands, Inc., 696 F.2d 311, 313 (4th Cir.1982). Accordingly, "the state law and Due Process analyses are ... identical," Chung v. NANA Development Corp., 783 F.2d 1124, 1127, n. 2 (4th Cir.1986). Hence, many circuit and district court opinions refrain from separate Long-Arm analysis. Nevertheless, the court has provided the dual analysis.
[6]  Title 35 U.S.C. § 271 defines patent infringement in pertinent part as follows:

(a) Except as otherwise provided in this title, whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.
(b) Whoever actively induces infringement of a patent shall be liable as an infringer.
(g) Whoever without authority imports into the United States or sells or uses within the United States a product which is made by a process patented in the United States shall be liable as an infringer, if the importation, sale or use of the product occurs during the term of such process patent.
[7]  The allegations in the complaint pertaining to Murata-Japan are rather nebulous in that they mimic some of the language from 35 U.S.C. § 271 without applying a specific subsection of the statute. Nevertheless plaintiff as I understand it alleges that Murata-Japan's manufacture of the allegedly infringing products induced Murata-America's § 271(a) & § 271(g) infringement vis-a-vis Murata-America's sales and importation respectively.
[8]  Subsection (A)(4) also dictates that the nonresident tortfeasor must derive "substantial revenue from goods used or consumed" in Virginia. See Va.Code Ann. § 8.01-328.1(A)(4) (Supp.1992). However, this language is nothing more that an attempt by the Virginia legislators to codify what they perceived as Due Process limitations on long-arm jurisdiction since they intended the Long-Arm to give jurisdiction over non-residents to the extent permitted by Due Process. See Marston, 351 F.Supp. at 1125. As such, the second prong of the long-arm jurisdiction analysis dealing with Due Process limitations, accomplishes what this provision contemplated.
[9]  Federal courts can obtain jurisdiction only over defendants who can be properly served under Rule 4(e) which regulates the extra-territorial reach of a federal court over out-of-state defendants. Rule 4(e) authorizes effective service only upon corporations over which the state's could exercise personal jurisdiction. Thus, the reach of the United States District Court for the Eastern District of Virginia over non-resident corporations is co-extensive with that of the state courts. See Rule 4(e). Accordingly, the Virginia Federal court personal jurisdiction analysis becomes identical to that of a State court, thus implicating Fourteenth Amendment consideration.
[10]  The basis known as `specific' jurisdiction allows a state to exercise "personal jurisdiction over a defendant in a suit arising or related to the defendant's contacts with the forum." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, n. 15, 105 S.Ct. 2174, 2182, n. 15, 85 L.Ed.2d 528 quoting Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414, n. 9, 104 S.Ct. 1868, 1872, n. 9, 104 S.Ct. 1868 (1984). Conversely, "when a state exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant's contacts with the forum, the State has been said to be exercising `general jurisdiction' over the defendant." Id.
[11]  F.O.B. or "free on board" indicates that title to the goods passes to the buyer and the seller relinquishes any risk of loss once the seller places the goods in transit.


844 F.Supp. 611 (1994)
PENTAX CORPORATION, a Delaware corporation, Plaintiff,
v.
Donald W. MYHRA, in his official capacity as District Director of Customs for the District of Great Falls, Montana, and United States Customs Service, an agency of the United States, Defendants.
No. 92-064-GF.
United States District Court, D. Montana, Great Falls Division.
January 27, 1994.
*612 John D. Stephenson, Jardine, Stephenson, Blewett & Weaver, PC, Great Falls, MT, Charles H. Bayar, Harold Levy, Whitman & Ransom, New York City, for plaintiff.
George F. Darragh, Jr., Office of the U.S. Atty., Great Falls, MT, A. David Lafer, Stuart M. Gerson, U.S. Dept. of Justice  Civ. Div., Washington, DC, for defendants.

MEMORANDUM AND ORDER
HATFIELD, Chief Judge.
The plaintiff, Pentax Corporation ("Pentax"), instituted the present action seeking pre-enforcement judicial review of an administrative decision by the U.S. Customs service ("Customs"). This matter is presently before this court on plaintiff's motion for preliminary injunction; defendants' cross-motion to dismiss plaintiff's complaint; and defendants' motion to dissolve injunction or, alternatively, clarify injunction and provide for security.

BACKGROUND
Pentax is a major importer and distributor of photographic and optical equipment. From 1987 through 1991, Pentax filed documentation with Customs indicating certain merchandise was imported from Hong Kong when the country of origin for the merchandise was actually the Peoples Republic of China. In March 1991, Pentax disclosed the country of origin misstatements to Customs. Pentax contends it came forward under the "prior disclosure" provisions of 19 U.S.C. § 1592(c)(4), and therefore is entitled to seek mitigation of any import penalties associated with the country of origin misstatements.[1]
*613 When Pentax disclosed its country of origin misstatements, Don Myhra, Customs District Director for the District of Great Falls, Montana, informed Pentax that unpaid "marking duties"[2] represent an "actual loss of duties" which must be paid as a precondition for prior disclosure treatment under 19 U.S.C. § 1592. The marking duties calculated by Pentax total $ 5,157,601.30. When Pentax received Mr. Myhra's actual loss of duties determination, Pentax applied for an administrative review.[3] Customs denied the application on the grounds that an actual loss of duties determination is not reviewable.[4] When Pentax requested further discussion on the issue, Customs refused.
Thereafter, on April 20, 1992, Mr. Myhra notified Pentax, by letter, that Pentax had until May 5, 1992, to pay the marking duties if it desired prior disclosure consideration.[5] In lieu of making the payment, Pentax filed this action seeking judicial review of Mr. Myhra's actual loss of duties determination. On April 29, 1992, this court issued an order temporarily restraining Customs from enforcing the prior disclosure deadline set forth in Mr. Myhra's April 20, 1992, letter. Pentax now seeks an injunction preventing expiration of the May 5, 1992, payment deadline until the court completes its judicial review. Customs, on the other hand, seeks an order dismissing this action on the grounds the court lacks jurisdiction.
For the reasons stated below, the court GRANTS defendant's cross-motion to dismiss and DENIES plaintiff's motion for preliminary injunction.

CROSS-MOTION TO DISMISS
Pentax seeks pre-enforcement judicial review of Mr. Myra's determination that marking duties must be paid as a precondition for prior disclosure treatment under 19 U.S.C. 1592(c)(4). Pentax premises its request for judicial review upon the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (generally cited as the "APA"), in conjunction with the court's federal question jurisdiction (28 U.S.C. § 1331). Customs urges the court to dismiss Pentax's action: 1) upon the grounds that the Court of International Trade ("CIT") has exclusive jurisdiction over this import-related action;[6] or 2) upon the *614 grounds that the "actual loss of duties" determination is not a final agency decision under the APA, and an adequate remedy exists in the CIT.[7]
The court does not find it necessary to reach the merits of Customs' arguments in determining whether this action should be dismissed. A summary dismissal of Pentax's action is proper in light of Congress' clear intent to preclude the requested interlocutory review.

A. Did Congress Intend To Preclude The Requested Judicial Review?

5 U.S.C. § 701(a) provides that the Administrative Procedure Act may be applied to agency action except to the extent that:
(1) statutes preclude judicial review; or
(2) agency action is committed to agency discretion by law.
A preclusion of judicial review is proper if a statute expressly prohibits judicial review;[8]or if a statute provides clear and convincing evidence of a congressional intent to withhold judicial review. Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967), citing H.R.REP. NO. 1980, 79th Cong., 2d Sess. 41 (1946), U.S.Code Cong.Serv.1946, at 1195. Under the latter approach, a court can look to:
"... the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved."

Block v. Community Nutrition Institute, 467 U.S. 340,345, 104 S.Ct. 2450, 2453-54, 81 L.Ed.2d 270 (1984).
In the instant case, Congress' intent to prohibit the requested judicial review is evidenced by the fact that Congress provided (under 19 U.S.C. § 1592), a detailed and comprehensive procedural framework for addressing *615 controversies in connection with the imposition of import penalties, including the present controversy centering on whether marking duties must be paid as a precondition for prior disclosure treatment. The review process embodied in 19 U.S.C. § 1592 consists of a series of administrative reviews culminating with a de novo judicial review in the CIT.[9]
If Pentax seeks to challenge Mr. Myhra's determination, it may start by refusing to pay the requested marking duties. Customs is then required to investigate the country of origin misstatement and issue a prepenalty notice which includes, inter alia, Mr. Myhra's actual loss of duties determination. 19 U.S.C. § 1592(b)(1)(A)(vi). Upon receipt of the prepenalty notice, Customs must grant Pentax a reasonable opportunity to present oral and written objections to Mr. Myhra's determination. 19 U.S.C. § 1592(b)(1)(A)(vii). After considering Pentax's objections, Customs must determine whether a penalty claim should be issued. 19 U.S.C. § 1592(b)(2).
If a penalty claim is issued, Pentax shall have an opportunity to petition for remission or mitigation of the penalty. 19 U.S.C. § 1618. During this step, Pentax can again challenge Customs' determination that marking duties must be paid for prior disclosure treatment. 19 C.F.R. § 162.79(b). At the conclusion of the § 1618 mitigation proceeding, Customs must provide Pentax with a written statement setting forth Customs' final penalty determination, and the findings of fact and conclusions of law upon which the determination is based. 19 U.S.C. § 1592(b)(2). If the petition for mitigation or remission is decided to Pentax's satisfaction, the entire matter is resolved administratively without necessity for any court intervention. If the parties cannot reach an agreement as to the penalty amount due, Customs may request that the Department of Justice institute an enforcement action in the CIT pursuant to 28 U.S.C. § 1582(1).[10] If such an action is commenced, all penalty related issues are tried de novo. 19 U.S.C. § 1592(e). Pentax may submit any evidence, and advance any arguments relevant to its contention that Pentax should have been afforded prior disclosure treatment. U.S. v. Fenderson, Inc., 658 F.Supp. 894, 900-901 (Ct.Int. Trade 1987).
In enacting this detailed comprehensive scheme, Congress made no provision for an importer to initiate litigation challenging an interim agency decision, including Customs' determination that marking duties must be paid for prior disclosure consideration. If this court allows Pentax to short circuit the statutory procedure through an interlocutory judicial review, the procedure would be rendered meaningless.[11] Since 19 U.S.C. § 1592 affords Pentax a reasonable opportunity to challenge Mr. Myhra's determination, no basis exists for an interlocutory judicial review under the APA.
In an effort to persuade this court that 19 U.S.C. § 1592 does not bar the requested pre-enforcement judicial review, Pentax directs the court's attention to Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), in which the U.S. Supreme Court found that certain Food and Drug statutes did not preclude pre-enforcement judicial review under the APA. Abbott is distinguishable from the case sub judice.
In Abbott, several drug manufacturers sought judicial review of two regulations promulgated by the Food and Drug Commissioner for the purpose of implementing a 1962 amendment to the Federal Food, Drug and Cosmetic Act  21 U.S.C. § 301 et seq. The Act required manufacturers of prescription drugs to print the generic name of the drug prominently on all product labels in *616 type at least half as large as that used for the proprietary name. Id., 387 U.S. at 137-38, 87 S.Ct. at 1509-10. The drug manufacturers challenged the regulations on the grounds they exceeded their statutory authority by requiring the manufacturers to list the generic name, each time the established name appeared on a label or advertisement.
As its sole evidence that judicial review should be precluded, the government noted that the Food, Drug and Cosmetic Act expressly provided for judicial review of some implementing regulations, but was silent as to the two regulations at issue. In support of its decision to allow judicial review, the Abbott Court stated that the failure to expressly provide for judicial review, in and of itself, did not manifest a congressional intent to bar judicial review. Id., 387 U.S. at 141, 87 S.Ct. at 1511.
Unlike Abbott, this case does not involve a situation where Congress failed to address the issue of judicial review. Rather, 19 U.S.C. § 1592 affirmatively sets forth a process to be followed in challenging an import penalty. While the court is cognizant that the procedure prescribed in 19 U.S.C. § 1592 may be inadequate in the eyes of Pentax,[12] this fact alone, does not compel the court to ignore controlling legislation, and offer Pentax an interlocutory judicial review. If Pentax seeks changes in the process by which import penalties are reviewed, it must direct its efforts at Congress.
IT IS HEREBY ORDERED that defendant's motion to dismiss be, and the same hereby is GRANTED. Plaintiff's motion for preliminary injunction is accordingly DENIED. The temporary restraining order issued by this court on April 29, 1992, is dissolved. Having dismissed this action, defendants' motion to dissolve injunction or, alternatively, to clarify injunction and provide for security, is moot.
The Clerk of Court is directed to notify counsel for the respective parties of the entry of this order.
NOTES
[1]  If an importer qualifies for prior disclosure treatment, potential import penalties are calculated under the mitigated penalty provisions in 19 U.S.C. § 1592(c)(4), rather than, the standard penalty provisions set forth in 19 U.S.C. § 1592(c)(1-3). Pentax's penalty exposure under the standard penalty provisions ranges from 3 million to 60 million dollars depending on its degree of culpability (negligence, gross negligence or fraud). Pentax's penalty exposure under the prior disclosure penalty provisions ranges from zero to 6 million dollars.

In order to secure prior disclosure treatment under 19 U.S.C. § 1592(c)(4) an importer must: 1) voluntarily disclose the country of origin misstatements prior to obtaining any knowledge that Customs commenced a formal investigation into the misstatements; and 2) pay customs the "actual loss of duties" suffered as a result of the misstatements. 19 C.F.R. §§ 162.74(a)(1) & 162.74(h). The phrase "actual loss of duties" is defined in 19 C.F.R. § 162.71(a)(1) as:
"... the duties of which the government has been deprived by reason of the violation in respect of entries on which liquidation had become final."
Liquidation occurs when Customs makes a final determination on the amount of duties owed on imported merchandise and the merchandise is released for distribution in the United States. 19 C.F.R. § 159.1.
[2]  Customs is required to collect a ten percent ad valorem duty ("marking duty") on imported merchandise entering the commerce of the United States with false country of origin markings. 19 U.S.C. § 1304.
[3]  Pentax sought an administrative review of Mr. Myhra's determination that unpaid "marking duties" represent an "actual loss of duties" for prior disclosure purposes. Pentax contends that the phrase "actual loss of duties" refers to the difference between: 1) the true duty liability based upon a true country of origin statement; and 2) the falsely reduced duty liability based upon a country of origin misstatement. The difference being the amount of money of which the government was actually deprived as a result of the country of origin misstatements. 19 C.F.R. § 162.71(a)(1). Pentax contends that no actual loss of duties resulted from Pentax's country of origin misstatements, because the duty liability for camera equipment imported from the Peoples Republic of China is precisely the same as the duty liability for camera equipment imported from Hong Kong.

In the opinion of Pentax, unpaid marking duties do not constitute an "actual loss of duties" because a marking duty is a special ad valorem duty that is not lost, but rather, arises as a result of a country of origin misstatement. 19 U.S.C. § 1304.
[4]  The application was apparently denied by the Director of the International Trade Compliance Division at Customs' headquarters.
[5]  If Pentax tenders the marking duties as calculated by Mr. Myhra, the payment is deemed to be voluntary, rather than a charge, and Pentax is prohibited from protesting or recovering the payment in a CIT action or other judicial proceeding. Carlingswitch, Inc. v. U.S., 500 F.Supp. 223 (Ct.Int'l Trade 1980), aff'd, 651 F.2d 768 (CCPA 1981).
[6]  Although this opinion does not address this issue, the court notes that the CIT does not have exclusive jurisdiction over all import-related actions commenced by an importer. The CIT, like other specialized courts, "operates within precise and narrow jurisdictional limits" explicitly granted by Congress. U.S. v. Biehl & Co., 3 Ct.Int'l Trade 158, 539 F.Supp. 1218, 1221 (1982). The actions over which the CIT has exclusive jurisdiction are statutorily defined at 28 U.S.C. §§ 1581 & 1582. Section 1582 provides the CIT with exclusive jurisdiction over certain import-related actions instituted by the United States against an importer. Section 1581, subsections (a)-(i), provides the CIT with exclusive jurisdiction over certain import-related actions filed against the United States.

If a particular action is not listed under § 1581 or § 1582, the CIT does not have exclusive jurisdiction. Trayco, Inc. v. U.S., 994 F.2d 832 (Fed. Cir.1993). In Trayco, an importer sought judicial review, in federal district court, of the propriety of an import penalty it paid to Customs under protest. Customs opposed the importer's choice of forum maintaining that the CIT had exclusive jurisdiction over all import-related matters. Contrary to Customs' position, the Federal Circuit concluded that since Congress did not explicitly grant the CIT exclusive jurisdiction over a suit for refund of an import penalty, the importer could seek judicial review in federal district court as long as the district court was vested with jurisdiction. The Trayco court determined that the district court had subject matter jurisdiction to review the import penalty pursuant to the Little Tucker Act  28 U.S.C. 1346(a)(2).
The Little Tucker Act provides that district courts have original jurisdiction, concurrent with the United States Court of Federal Claims over any civil action against the United States not exceeding $10,000, founded either upon the Constitution, federal statute or regulation of an executive department.
In the case sub judice, Pentax challenges Customs "actual loss of duties" determination under 19 U.S.C. § 1592(c)(4). Since 28 U.S.C. 1581 does not explicitly grant the CIT with exclusive jurisdiction over such an action, jurisdiction could possibly rest with this court pursuant to 28 U.S.C. § 1331, if Pentax's action otherwise satisfied the judicial review requirements promulgated under the Administrative Procedure Act. However, as discussed below, the court concludes that the requested judicial review does not satisfy the requirements of the APA.
[7]  5 U.S.C. § 704 provides in pertinent part that action by an administrative agency, like Customs, is reviewable by a federal district court only if the action is:

... Final agency action for which there is no other adequate remedy in a court. ...
(emphasis added).
The requirement of "final agency action" embodies a two-pronged test. (1) The agency action must be a final decision rather than a preliminary, procedural or intermediate; and (2) the agency action must be final in the sense that available avenues of review within the agency have been pursued and exhausted.
[8]  An example of an expressed preclusion of judicial review is the 1986 Superfund Amendments to the Comprehensive Environmental Response, Compensation, and Liability Act which expressly prohibit pre-enforcement judicial review of EPA administrative consent orders relating to hazardous waste cleanup. 42 U.S.C. § 9613; Fairchild Semiconductor Corp. v. U.S. E.P.A., 769 F.Supp. 1553 (N.D.Cal.1991).
[9]  The CIT, as predecessor to the U.S. Court of Customs, has specialized expertise in the area of import-related matters that is not possessed by a federal district court.
[10]  The CIT has exclusive jurisdiction over actions instituted by the United States to enforce import penalties. 28 U.S.C. § 1582.
[11]  The court will also be opening the door to an endless stream of piece-meal reviews on other interim agency decisions.
[12]  Pentax maintains that the statutory review process established in 19 U.S.C. § 1592 is inadequate as to Mr. Myhra's actual loss of duties determination because it places Pentax in a difficult dilemma. If Pentax tenders the actual loss of duties as calculated by Mr. Myhra, it may qualify for disclosure treatment, but it can not protest the payment in a subsequent administrative or judicial proceeding. Carlingswitch, Inc. v. U.S., 500 F.Supp. 223 (Ct.Int'l Trade 1980), aff'd 651 F.2d 768 (CCPA 1981).

In order for Pentax to challenge Mr. Myhra's determination, Pentax must refuse to pay the actual loss of duties requested by Customs. When Pentax refuses to pay, Customs will no longer consider Pentax for prior disclosure treatment. The only way Pentax can regain prior disclosure treatment is to prevail on the actual loss of duties issue in a CIT enforcement action. If Pentax loses on this issue in the CIT, Pentax cannot regain prior disclosure treatment by tendering the 5.2 million dollars at issue. Pentax will be required to pay the 5.2 million dollars in actual loss of duties, plus face higher non-disclosure § 1592(c) penalties.
In addition, Pentax's controller, Jan Williamson, states in her affidavit that when Customs issues a penalty notice for non-disclosure penalties, Pentax must report the claim to its auditors and lenders. In Ms. Williamson's opinion, this claim may cause banks to withhold the financing needed to maintain Pentax's operation, which ultimately could result in a bankruptcy.


817 F.2d 103Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff--Appellee,v.Keith A. CAMPBELL, Defendant--Appellant.UNITED STATES of America, Plaintiff--Appellee,v.Keith A CAMPBELL, Defendant--Appellant.
Nos. 86-5088, 86-7633.
United States Court of Appeals, Fourth Circuit.
Submitted Feb. 27, 1987.Decided April 22, 1987.

Before HALL, SPROUSE and WILKINSON, Circuit Judges.
Keith A. Campbell, appellant pro se.
John C. Belcher, Office of the United States Attorney, for appellee.
PER CURIAM:

1
Keith A. Campbell was convicted on December 6, 1985 of one count of mail fraud, and sentenced to five years' incarceration.  His conviction was affirmed by this Court on August 26, 1986.  While Campbell's appeal was pending in this Court, he filed in the district court a motion for correction of his presentence report and for resentencing pursuant to Fed.  R.  Crim.  P. 32 (c) (3) (D), and a motion for correction of sentence pursuant to Fed.  R. Crim.  P. 35 (a).  The district court denied these motions without comment, and it is from these denials that Campbell now appeals.

2
We find that these motions were properly denied for lack of jurisdiction in the district court due to the pendency of Campbell's appeal of his conviction.  A district court lacks jurisdiction to entertain a Rule 35 motion once a notice of appeal has been filed.  See United States v. Johns, 638 F.2d 222, 224 & n.3 (10th Cir. 1981);  United States v. Garrett, 583 F.2d 1381, 1391 (5th Cir. 1978);  United States v. Mack, 466 F.2d 333 (D.C. Cir.), cert. denied, 409 U.S. 952 (1972).  Assuming that Rule 32 provides an independent jurisdictional basis for the district court to entertain a postjudgment challenge to the sentencing proceeding, see United States v. Ursillo, 786 F.2d 66 (2d Cir. 1986), the same principle would apply.  Upon the filing of an appeal from the conviction, jurisdiction is transferred to the court of appeals and the district court is divested of jurisdiction.

3
The district court's denial of the motions is affirmed on the basis of lack of jurisdiction.  We dispense with oral argument because the dispositive issues recently have been decided authoritatively.

4
AFFIRMED.


178 F.2d 755
CONNORv.MILLER et al.
No. 132.
Docket 21520.
United States Court of Appeals Second Circuit.
Submitted December 16, 1949.
Decided December 30, 1949.

Sidney Kansas and Herbert Zelenko, both of New York City, for petitioner-appellant.
Irving H. Saypol, U. S. Atty., of New York City (Harold J. Raby, Asst. U. S. Atty., of New York City, of counsel), for respondents-appellees.
Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges.
PER CURIAM.

1
Petitioner, an alien whose appeal from an order for his deportation has been dismissed by the Board of Immigration Appeals, but who has not been taken into custody, asks us now to decide the question reserved for this Circuit in Azzollini v. Watkins, 2 Cir., 172 F.2d 897, as to the reviewability of such an order by direct petition under Administrative Procedure Act, § 10, 5 U.S.C.A. § 1009. It is provided in 8 U.S.C.A. § 155(a), however, that the decision of the Attorney General for deportation "shall be final"; and the District Court has determined that the petitioner's rights are limited to such questions as he can raise on a petition for a writ of habeas corpus after he has been taken into custody. But there is a preliminary question, raised on behalf of the respondents by the special appearance and affidavit entered in their behalf by the Assistant United States Attorney, as to the jurisdiction of the court over them. The proceeding was instituted below by an order to show cause; and there appears to have been no service at all upon the respondents, much less service which would satisfy the requirements of Federal Rules of Civil Procedure, rule 4(d), 28 U.S.C.A. Further, the Attorney General, to whom final decision is entrusted, resides in Washington, D. C.; and so also does the Commissioner of Immigration and Naturalization, both of whom are named as respondents. Personal service of course would not run to the District of Columbia. Toland v. Sprague, 12 Pet. 300, 328, 37 U.S. 300, 9 L.Ed. 1093; Weinberg v. United States, 2 Cir., 126 F.2d 1004; cf. F.R. 4(f); Mississippi Pub. Co. v. Murphree, 326 U.S. 438, 442, 66 S.Ct. 242, 90 L.Ed. 185. The civil rules must apply in the absence of express statute, F.R. 1, 81; the lack of such authority here is really emphasized by the provisions of § 10 supra for review in a court of "competent jurisdiction." Hence we think it clear that the court acquired no jurisdiction to adjudicate the issue.

2
Affirmed.