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The underlying action and a discovery sanction dispute have already been concluded in favor of defendants. See Hutchinson v. Pfeil, 105 F.3d 562 (10th Cir.), cert. denied, 522 U.S. 914, 118 S.Ct. 298, 139 L.Ed.2d 230 (1997); Hutchinson v. Pfeil, No. 98-5043, 1999 WL 1015557 (10th Cir. Nov.9, 1999) (unpublished). . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of these appeals. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are therefore ordered submitted without oral argument. . The magistrate judge "further recommended that the record as certified first be referred to this court’s Committee on Admissions and Grievances for investigation and advisory recommendations.” Appellants’ App. I at 146-47. There is no indication on the record that such a referral was made. . Defendants also relied on Okla. Stat. tit. 12, § 936 (allowing attorney fees as costs in actions on contract). This statutory claim, abandoned on appeal, does not impact our analysis and, for simplicity, we often refer to defendants’ motion as one for fees under § 1927. . We note that, as the latter notice was timely and effective for purposes of both appellants, see Fed. R.App. P. 4(a)(4)(A)(iv), Ms. God-love’s initial, redundant appeal may be dismissed as moot. . We note our analysis and disposition are driven primarily by provisions of Rule 11 added by amendment effective December 1, 1993. While the complaint was filed prior to that date, the bulk of the proceedings, which concluded in 1998, took place afterward, placing the case squarely within the Supreme Court’s direction to apply the amendments “insofar as just and practicable, [to] all proceedings in civil cases then pending.” Ridder, 109 F.3d at 296 (quotation omitted); see also Elliott v. Tilton, 64 F.3d 213, 215-16 (5th Cir.1995). . We note there is some disagreement whether a magistrate judge may only recommend Rule 11 sanctions under § 636(b)(1)(B) and Fed.R.Civ.P. 72(b) subject to de novo review by the district court, or may actually order such sanctions as a nondispositive pretrial matter under § 636(b)(1)(A) and Fed.R.Civ.P. 72(a) subject to more

as one for fees under § 1927. . We note that, as the latter notice was timely and effective for purposes of both appellants, see Fed. R.App. P. 4(a)(4)(A)(iv), Ms. God-love’s initial, redundant appeal may be dismissed as moot. . We note our analysis and disposition are driven primarily by provisions of Rule 11 added by amendment effective December 1, 1993. While the complaint was filed prior to that date, the bulk of the proceedings, which concluded in 1998, took place afterward, placing the case squarely within the Supreme Court’s direction to apply the amendments “insofar as just and practicable, [to] all proceedings in civil cases then pending.” Ridder, 109 F.3d at 296 (quotation omitted); see also Elliott v. Tilton, 64 F.3d 213, 215-16 (5th Cir.1995). . We note there is some disagreement whether a magistrate judge may only recommend Rule 11 sanctions under § 636(b)(1)(B) and Fed.R.Civ.P. 72(b) subject to de novo review by the district court, or may actually order such sanctions as a nondispositive pretrial matter under § 636(b)(1)(A) and Fed.R.Civ.P. 72(a) subject to more deferential appellate-type review. See Alpern v. Lieb, 38 F.3d 933, 935 (7th Cir.1994) (discussing cases). This court has not decided the question, though we have recognized that magistrate judges may order nondispositive discovery sanctions. See Hutchinson, 105 F.3d at 566; Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1519-20 (10th Cir.1995). The magistrate judge used the language of "recommendation" here. In any event, our subsequent analysis of the inconclusive character of his action obviates any need to resolve the § 636 question in this case. . Indeed, there is some question whether the professional discipline ultimately meted out by the district court is even authorized under Rule 11. See Thornton, 136 F.3d at 455 (vacating order suspending counsel from practice, and holding that “when a district court finds that a disciplinary sanction more severe than admonition, reprimand, or censure under Rule 11 is warranted, it should refer the matter to the appropriate disciplinary authorities”). The district court relied on cases from this circuit approving filing restrictions for vexatious litigants, but "[a] vexatious litigant order ... is

deferential appellate-type review. See Alpern v. Lieb, 38 F.3d 933, 935 (7th Cir.1994) (discussing cases). This court has not decided the question, though we have recognized that magistrate judges may order nondispositive discovery sanctions. See Hutchinson, 105 F.3d at 566; Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1519-20 (10th Cir.1995). The magistrate judge used the language of "recommendation" here. In any event, our subsequent analysis of the inconclusive character of his action obviates any need to resolve the § 636 question in this case. . Indeed, there is some question whether the professional discipline ultimately meted out by the district court is even authorized under Rule 11. See Thornton, 136 F.3d at 455 (vacating order suspending counsel from practice, and holding that “when a district court finds that a disciplinary sanction more severe than admonition, reprimand, or censure under Rule 11 is warranted, it should refer the matter to the appropriate disciplinary authorities”). The district court relied on cases from this circuit approving filing restrictions for vexatious litigants, but "[a] vexatious litigant order ... is distinguishable from an order that limits an attorney's right to file pleadings on behalf of a client, i.e., to practice his or her profession.” Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1197-99 (9th Cir.1999) (reversing order limiting counsel’s right to file certain matters in district, because district's specific rules for imposition of professional discipline had not been followed). In discussing the deterrent function of sanctions, this court has said "[i]t is particularly inappropriate to use sanctions as a means of driving certain attorneys out of practice. Such decisions are properly made by those charged with handling attorney disbarment and are generally accompanied by specific due process provisions to protect the rights of the attorney in question.” White v. General Motors Corp., 908 F.2d 675, 684 (10th Cir.1990). . In contrast, we relied on inherent authority to affirm a § 1927 fee award in Resolution Trust Corp. v. Dabney, 73 F.3d 262, 267 (10th Cir.1995), which just reflects the common substantive ground these sources of sanctioning power share in distinction from Rule 11. See Schlaifer Nance

distinguishable from an order that limits an attorney's right to file pleadings on behalf of a client, i.e., to practice his or her profession.” Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1197-99 (9th Cir.1999) (reversing order limiting counsel’s right to file certain matters in district, because district's specific rules for imposition of professional discipline had not been followed). In discussing the deterrent function of sanctions, this court has said "[i]t is particularly inappropriate to use sanctions as a means of driving certain attorneys out of practice. Such decisions are properly made by those charged with handling attorney disbarment and are generally accompanied by specific due process provisions to protect the rights of the attorney in question.” White v. General Motors Corp., 908 F.2d 675, 684 (10th Cir.1990). . In contrast, we relied on inherent authority to affirm a § 1927 fee award in Resolution Trust Corp. v. Dabney, 73 F.3d 262, 267 (10th Cir.1995), which just reflects the common substantive ground these sources of sanctioning power share in distinction from Rule 11. See Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 336 (2d Cir.1999) (§ 1927 and inherent authority turn on same subjective standard and "only meaningful difference” is "that awards under § 1927 are made only against attorneys”); see also Dreiling v. Peugeot Motors of Am., 768 F.2d 1159, 1164-65 (10th Cir.1985) ("Section 1927 is a natural outgrowth of the inherent authority of a court to assess costs and attorney’s fees ... against a party who has acted in bad faith, vexatiously, wantonly, or for oppressive reasons” (quotation omitted)). Further, § 1927 and inherent authority do not involve particular procedural prerequisites, nor do they share Rule ll’s reliance "on the presence of a [signed] paper." Ted Lapidus, S.A., 112 F.3d at 96.

RUSSELL E. SMITH, District Judge: Sandoval-Villalvazo (Sandoval), who was convicted of violations of the narcotic laws, appeals. Viewing the evidence in the light most favorable to the United States and drawing permissible inferences from the facts, the trial court could have found as follows: On October 31,1978, codefendant Rosales, by telephone, advised Sepulveda, an undercover Drug Enforcement Administration (DEA) agent, that he had a source and could deliver approximately 15 ounces of heroin on the following day. On the next day Sepulveda and other agents went to a Skaggs parking lot in Santa Ana. Sepulve-da called Rosales, told him where he was, and then waited. At approximately 5:00 P. M. Rosales appeared at the parking lot in a red pickup driven by codefendant Velasquez. In the course of a conversation, Rosales indicated to Sepulveda that they weren’t having any success in finding the source — the owner of the merchandise. Rosales then pointed to Velasquez and said, “He is going to call him now.” Velasquez left. Sepulveda then took Rosales to the undercover truck and showed him the money with which the purchase would be made. Velasquez reappeared and said he couldn’t find “the man.” Rosales then said, “Don’t worry. I have talked to the guy. We are going to his house right now . . . He then asked Sepulveda to wait — to please not leave — and that something would be done that day. Velasquez and Rosales left in the red pickup, followed by Agent Alexander. Rosales was dropped at the Duran-go Restaurant, and Velasquez driving alone, followed by an agent, went to the 2500 block on West Pomona where he conversed with a driver of a parked gray-colored 1975 Grand Prix automobile. This was between 5:30 and 6:15 P. M. At about the same time, 6:15 P. M., Se-pulveda called Rosales at the Durango Restaurant and was told that they were still having trouble finding “the man” but that Velasquez had gone looking for him. Rosales again repeated, “But don’t leave, please don’t leave. We are going to do something.” About 6:30 P. M. Sepulveda again called Rosales at the

money with which the purchase would be made. Velasquez reappeared and said he couldn’t find “the man.” Rosales then said, “Don’t worry. I have talked to the guy. We are going to his house right now . . . He then asked Sepulveda to wait — to please not leave — and that something would be done that day. Velasquez and Rosales left in the red pickup, followed by Agent Alexander. Rosales was dropped at the Duran-go Restaurant, and Velasquez driving alone, followed by an agent, went to the 2500 block on West Pomona where he conversed with a driver of a parked gray-colored 1975 Grand Prix automobile. This was between 5:30 and 6:15 P. M. At about the same time, 6:15 P. M., Se-pulveda called Rosales at the Durango Restaurant and was told that they were still having trouble finding “the man” but that Velasquez had gone looking for him. Rosales again repeated, “But don’t leave, please don’t leave. We are going to do something.” About 6:30 P. M. Sepulveda again called Rosales at the same restaurant and was advised that Velasquez had located “the man,” the owner of the merchandise. Between 7:20 and 7:30 P. M. Rosales and Velasquez returned to the parking lot. Se-pulveda asked Rosales if he had the heroin, and Rosales said, “No. The man will be bringing it with him.” Velasquez in the meantime went to the telephone. He came back, again left, and again came back and said that he couldn’t find “the man.” A short time later he left again and returned saying that the source was on his way. During this time Velasquez was highly agitated and was irritated by the failure of the source to appear. There was an argument between Rosales and Velasquez as to whether Velasquez should leave with the red pickup in search of the source and risk having the source miss the rendezvous in the absence of the pickup. Finally, however, Velasquez again left the parking lot, followed by the DEA agents. In the course of these events Velasquez said to Rosales in the presence of the agents,

same restaurant and was advised that Velasquez had located “the man,” the owner of the merchandise. Between 7:20 and 7:30 P. M. Rosales and Velasquez returned to the parking lot. Se-pulveda asked Rosales if he had the heroin, and Rosales said, “No. The man will be bringing it with him.” Velasquez in the meantime went to the telephone. He came back, again left, and again came back and said that he couldn’t find “the man.” A short time later he left again and returned saying that the source was on his way. During this time Velasquez was highly agitated and was irritated by the failure of the source to appear. There was an argument between Rosales and Velasquez as to whether Velasquez should leave with the red pickup in search of the source and risk having the source miss the rendezvous in the absence of the pickup. Finally, however, Velasquez again left the parking lot, followed by the DEA agents. In the course of these events Velasquez said to Rosales in the presence of the agents, “Your Campa Rafa, he has no compassion on those of us who are trying to make a buck or two . . . . Just because he has made his millions he doesn’t worry about us.” Sepulveda testified that he understood that “Campa Rafa” referred to Rosales’ good friend Rafael (Sandoval). After Velasquez left, Rosales told Se-pulveda the source would arrive in a gray-colored Grand Prix. Velasquez, again followed by Agent Alexander, went back to the 2500 block on West Pomona and arrived there shortly after 8:00 P. M. The Grand Prix was there. The driver of it, later identified as Sandoval, made a U-turn and closely followed the red pickup to the parking lot, once jumping a yellow light to keep up. They arrived in tandem about 8:30 P. M., and both parked. Velasquez then went to Sepulveda and told him that the heroin was in the pickup and that “the man — the owner” (nodding in the direction of Sandoval) wanted Rosales (by then arrested) and not Velasquez to deal with the buyer. At that

“Your Campa Rafa, he has no compassion on those of us who are trying to make a buck or two . . . . Just because he has made his millions he doesn’t worry about us.” Sepulveda testified that he understood that “Campa Rafa” referred to Rosales’ good friend Rafael (Sandoval). After Velasquez left, Rosales told Se-pulveda the source would arrive in a gray-colored Grand Prix. Velasquez, again followed by Agent Alexander, went back to the 2500 block on West Pomona and arrived there shortly after 8:00 P. M. The Grand Prix was there. The driver of it, later identified as Sandoval, made a U-turn and closely followed the red pickup to the parking lot, once jumping a yellow light to keep up. They arrived in tandem about 8:30 P. M., and both parked. Velasquez then went to Sepulveda and told him that the heroin was in the pickup and that “the man — the owner” (nodding in the direction of Sandoval) wanted Rosales (by then arrested) and not Velasquez to deal with the buyer. At that time the agents pulled their guns and arrested Velasquez. The conversation preceding the arrest had taken about five minutes. During this time Agent Sepulveda was facing and observing the occupants of the Grand Prix. Sandoval sat in his car with the motor running and the lights on and watched Velasquez and Sepulveda talking; but when the arrest occurred he immediately put his car in reverse, screeched backward, and then sped forward in the direction of the two agents. He was stopped by a bullet fired into his tire by a DEA agent. Searching the red pickup, Sandoval found 252 grams of heroin. Bullets and a 45-calibre clip were found in the trunk of the Grand Prix. Sandoval, who had last worked in August 1978, when he had earned $600.00, had $300.00 in his possession. Appellant urges that the statements of Rosales and Velasquez (undoubtedly prejudicial), which were made to the DEA agents in his absence, are hearsay. Statements made by one coconspirator during the course of and in furtherance of a conspiracy are admissible as vicarious

time the agents pulled their guns and arrested Velasquez. The conversation preceding the arrest had taken about five minutes. During this time Agent Sepulveda was facing and observing the occupants of the Grand Prix. Sandoval sat in his car with the motor running and the lights on and watched Velasquez and Sepulveda talking; but when the arrest occurred he immediately put his car in reverse, screeched backward, and then sped forward in the direction of the two agents. He was stopped by a bullet fired into his tire by a DEA agent. Searching the red pickup, Sandoval found 252 grams of heroin. Bullets and a 45-calibre clip were found in the trunk of the Grand Prix. Sandoval, who had last worked in August 1978, when he had earned $600.00, had $300.00 in his possession. Appellant urges that the statements of Rosales and Velasquez (undoubtedly prejudicial), which were made to the DEA agents in his absence, are hearsay. Statements made by one coconspirator during the course of and in furtherance of a conspiracy are admissible as vicarious admissions against another coconspirator. Fed.R. Evid. 801(d)(2)(E). It is required, however, that there be evidence, independent of the coconspirator’s statements, establishing the existence of the conspiracy and connecting a defendant with the conspiracy. The evi dence proving the existence of the conspiracy was overwhelming. With respect to Sandoval’s connection with the conspiracy, the facts, in our opinion, warrant the conclusion that the following occurred: On November 1, 1978, during the period between 5:00 P. M., when Velasquez first appeared on the scene, and about 8:30 P. M., when he was arrested, Velasquez was totally absorbed in his effort to sell heroin. The trial judge could infer that during that period of Velasquez’ total absorption Sandoval first waited for him on Pomona Street and there he talked to him; by reason of some understanding between Velasquez and Sandoval, Sandoval again waited for Velasquez at the same place at a time about two hours later. On the second occasion Sandoval made a U-turn and purposefully followed Velasquez to the parking lot. At the parking lot he did not get

admissions against another coconspirator. Fed.R. Evid. 801(d)(2)(E). It is required, however, that there be evidence, independent of the coconspirator’s statements, establishing the existence of the conspiracy and connecting a defendant with the conspiracy. The evi dence proving the existence of the conspiracy was overwhelming. With respect to Sandoval’s connection with the conspiracy, the facts, in our opinion, warrant the conclusion that the following occurred: On November 1, 1978, during the period between 5:00 P. M., when Velasquez first appeared on the scene, and about 8:30 P. M., when he was arrested, Velasquez was totally absorbed in his effort to sell heroin. The trial judge could infer that during that period of Velasquez’ total absorption Sandoval first waited for him on Pomona Street and there he talked to him; by reason of some understanding between Velasquez and Sandoval, Sandoval again waited for Velasquez at the same place at a time about two hours later. On the second occasion Sandoval made a U-turn and purposefully followed Velasquez to the parking lot. At the parking lot he did not get out, as a shopper might have, but rather kept his motor running and his lights on. He observed Velasquez very closely and, when the arrest occurred, made a determined effort to escape. This, in our opinion, was proof, independent of the declarations of the coconspirators, connecting Sandoval with the conspiracy, and was sufficient to satisfy the standard of proof established by United States v. Dunn, 564 F.2d 348 (9th Cir. 1977). We believe that the trial court was warranted in inferring that the statements made by the coconspirators, including the reference to “Campa Rafa,” were designed to keep the potential buyers from leaving the scene and were, therefore, in furtherance of the conspiracy. About 3V2 hours passed between the time Rosales first appeared at the parking lot and the arrest. Sepulveda commented to Rosales on their failure to find the source. A good part of the 3V2 hours was spent in calling and looking for the source and on some occasions Velasquez said he couldn’t find “the man.” Twice Rosales urged Sepulveda to wait and assured

out, as a shopper might have, but rather kept his motor running and his lights on. He observed Velasquez very closely and, when the arrest occurred, made a determined effort to escape. This, in our opinion, was proof, independent of the declarations of the coconspirators, connecting Sandoval with the conspiracy, and was sufficient to satisfy the standard of proof established by United States v. Dunn, 564 F.2d 348 (9th Cir. 1977). We believe that the trial court was warranted in inferring that the statements made by the coconspirators, including the reference to “Campa Rafa,” were designed to keep the potential buyers from leaving the scene and were, therefore, in furtherance of the conspiracy. About 3V2 hours passed between the time Rosales first appeared at the parking lot and the arrest. Sepulveda commented to Rosales on their failure to find the source. A good part of the 3V2 hours was spent in calling and looking for the source and on some occasions Velasquez said he couldn’t find “the man.” Twice Rosales urged Sepulveda to wait and assured him that something would happen. The statement as to “Campa Rafa” did tend to assure the potential buyers that there was a real source and inferentially tended to explain the delay on the ground that the source was rich and could afford to keep people waiting. It is urged that it was error to admit the statements of the coconspirators prior to the proof of Sandoval’s connection with the conspiracy. The order of proof was within the discretion of the trial court. United States v. Peterson, 549 F.2d 654 (9th Cir. 1977); United States v. Smith, 445 F.2d 861 (9th Cir.), cert. denied, 404 U.S. 883, 92 S.Ct. 212, 30 L.Ed.2d 165 (1971). The trial court did not abuse its discretion, and there was no error. The argument that the evidence was insufficient to sustain the conviction is without merit. Once evidence sufficient to connect defendant with the conspiracy was properly admitted, the whole of the evidence was more than sufficient to convict. Defendant sought to secure the testimony of one Sanchez, who was a passenger in the

him that something would happen. The statement as to “Campa Rafa” did tend to assure the potential buyers that there was a real source and inferentially tended to explain the delay on the ground that the source was rich and could afford to keep people waiting. It is urged that it was error to admit the statements of the coconspirators prior to the proof of Sandoval’s connection with the conspiracy. The order of proof was within the discretion of the trial court. United States v. Peterson, 549 F.2d 654 (9th Cir. 1977); United States v. Smith, 445 F.2d 861 (9th Cir.), cert. denied, 404 U.S. 883, 92 S.Ct. 212, 30 L.Ed.2d 165 (1971). The trial court did not abuse its discretion, and there was no error. The argument that the evidence was insufficient to sustain the conviction is without merit. Once evidence sufficient to connect defendant with the conspiracy was properly admitted, the whole of the evidence was more than sufficient to convict. Defendant sought to secure the testimony of one Sanchez, who was a passenger in the Grand Prix at the time it was in the Skaggs parking lot, and who was arrested along with the others. The trial initially was set for January 16,1979, and Sanchez was subpoenaed for this setting. He did not appear. When codefendant Velasquez moved for a continuance, due to the involvement of new counsel, Sandoval decided not to oppose the continuance only after ascertaining that Sanchez would be available as a witness after January 16th. The trial was then continued until February 27, 1979; Sanchez was not subpoenaed for this second setting, and no subpoena was issued when the witness did not appear on February 27th. On Thursday, March 1, 1979, the court granted defendant a continuance until Monday, March 5, so that he could obtain the witness. Again no subpoena was issued. Sanchez did not appear when the trial was resumed on March 5th. The court granted defendant’s request to be allowed to present the witness after the Government’s rebuttal if he had appeared by that time. When the Government declared it had no rebuttal

Grand Prix at the time it was in the Skaggs parking lot, and who was arrested along with the others. The trial initially was set for January 16,1979, and Sanchez was subpoenaed for this setting. He did not appear. When codefendant Velasquez moved for a continuance, due to the involvement of new counsel, Sandoval decided not to oppose the continuance only after ascertaining that Sanchez would be available as a witness after January 16th. The trial was then continued until February 27, 1979; Sanchez was not subpoenaed for this second setting, and no subpoena was issued when the witness did not appear on February 27th. On Thursday, March 1, 1979, the court granted defendant a continuance until Monday, March 5, so that he could obtain the witness. Again no subpoena was issued. Sanchez did not appear when the trial was resumed on March 5th. The court granted defendant’s request to be allowed to present the witness after the Government’s rebuttal if he had appeared by that time. When the Government declared it had no rebuttal the defendant requested a 10-minute recess to attempt to secure the attendance of this witness. The court de nied this request and the Government made its closing argument. Then, for the first time, the court was advised that the witness had appeared. Defendant moved to reopen for the purpose of calling Sanchez. The motion was denied. The rule is stated in United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir. 1978), quoting from Leino v. United States, 338 F.2d 154, 156 (10th Cir. 1964), as follows: “When a continuance is sought to obtain witnesses, the accused must show who they are, what their testimony will be, that the testimony will be competent and relevant, that the witnesses can probably be obtained if the continuance is granted, and due diligence has been used to obtain their attendance on the day set for trial.” The record demonstrates that the defendant was aware of the problem of securing the attendance of this particular witness and chose not to issue a subpoena for him. After recessing from Thursday until Monday for

the defendant requested a 10-minute recess to attempt to secure the attendance of this witness. The court de nied this request and the Government made its closing argument. Then, for the first time, the court was advised that the witness had appeared. Defendant moved to reopen for the purpose of calling Sanchez. The motion was denied. The rule is stated in United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir. 1978), quoting from Leino v. United States, 338 F.2d 154, 156 (10th Cir. 1964), as follows: “When a continuance is sought to obtain witnesses, the accused must show who they are, what their testimony will be, that the testimony will be competent and relevant, that the witnesses can probably be obtained if the continuance is granted, and due diligence has been used to obtain their attendance on the day set for trial.” The record demonstrates that the defendant was aware of the problem of securing the attendance of this particular witness and chose not to issue a subpoena for him. After recessing from Thursday until Monday for the sole purpose of giving defendant an opportunity to procure the attendance of Sanchez, the court did not abuse its discretion in refusing another continuance, albeit a short one, nor in refusing to reopen the case after the Government had made its closing argument. The judgment is affirmed. FERGUSON, Circuit Judge, dissenting: I must respectfully dissent. The majority states correctly that out-of-court statements by one coconspirator during the course of and in furtherance of the conspiracy are admissible against another coconspirator where there is evidence independent of the coconspirator’s statements establishing the existence of the conspiracy and the defendant’s connection to it. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Weaver, 594 F.2d 1272 (9th Cir. 1979); United States v. Rosales, 584 F.2d 870 (9th Cir. 1978); Fed.R.Evidence, 801(d)(2)(E). While the majority concedes that Valasquez’s statement to Rosales was prejudicial, they fail to show that the statement was made “in furtherance of” the conspiracy. The statement by Valasquez to Rosales was by far the most prejudicial of all

the sole purpose of giving defendant an opportunity to procure the attendance of Sanchez, the court did not abuse its discretion in refusing another continuance, albeit a short one, nor in refusing to reopen the case after the Government had made its closing argument. The judgment is affirmed. FERGUSON, Circuit Judge, dissenting: I must respectfully dissent. The majority states correctly that out-of-court statements by one coconspirator during the course of and in furtherance of the conspiracy are admissible against another coconspirator where there is evidence independent of the coconspirator’s statements establishing the existence of the conspiracy and the defendant’s connection to it. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Weaver, 594 F.2d 1272 (9th Cir. 1979); United States v. Rosales, 584 F.2d 870 (9th Cir. 1978); Fed.R.Evidence, 801(d)(2)(E). While the majority concedes that Valasquez’s statement to Rosales was prejudicial, they fail to show that the statement was made “in furtherance of” the conspiracy. The statement by Valasquez to Rosales was by far the most prejudicial of all the statements, yet it cannot in any way be considered a statement “in furtherance of” the conspiracy. It was, at best, idle conversation between two coconspirators. Mere conversation between conspirators or merely narrative declarations are not admissible as declarations in furtherance of the conspiracy. United States v. Eubanks, 591 F.2d 513 (9th Cir. 1979); United States v. James, 510 F.2d 546 (5th Cir. 1975); United States v. Birnbaum, 337 F.2d 490 (2d Cir. 1964). For declarations to be admissible under the coconspirator exception, they must further the common objectives of the conspiracy. United States v. Eubanks, supra. As the Second Circuit noted in Birn-baum, “[T]he fact that one conspirator tells another something relevant to the conspiracy does not alone make the declaration competent; the declaration must itself be an act in furtherance of the common object; mere conversation between conspirators is not that * * *.” United States v. Birnbaum, supra, 337 F.2d at 495, citing United States v. Nardone, 106 F.2d 41, 43 (2d Cir.), rev’d on other grounds, 308 U.S. 338, 60 S.Ct. 266, 84

the statements, yet it cannot in any way be considered a statement “in furtherance of” the conspiracy. It was, at best, idle conversation between two coconspirators. Mere conversation between conspirators or merely narrative declarations are not admissible as declarations in furtherance of the conspiracy. United States v. Eubanks, 591 F.2d 513 (9th Cir. 1979); United States v. James, 510 F.2d 546 (5th Cir. 1975); United States v. Birnbaum, 337 F.2d 490 (2d Cir. 1964). For declarations to be admissible under the coconspirator exception, they must further the common objectives of the conspiracy. United States v. Eubanks, supra. As the Second Circuit noted in Birn-baum, “[T]he fact that one conspirator tells another something relevant to the conspiracy does not alone make the declaration competent; the declaration must itself be an act in furtherance of the common object; mere conversation between conspirators is not that * * *.” United States v. Birnbaum, supra, 337 F.2d at 495, citing United States v. Nardone, 106 F.2d 41, 43 (2d Cir.), rev’d on other grounds, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). The statement at issue here did not set in motion transactions that were an integral part of the distribution scheme, and did not assist the conspirators in achieving their objectives. See United States v. Eubanks, supra. Moreover, the statement was not made to keep either Rosales or the agents abreast of the conspirator’s activities, to induce continued participation, or to allay fears. See United States v. Eaglin, 571 F.2d 1069 (9th Cir. 1977); Salazar v. United States, 405 F.2d 74 (9th Cir. 1968). In the absence of any evidence that Va-lasquez’s statement was a declaration “in furtherance of” the conspiracy, the statement should not have been admitted under the coconspirator exception to the hearsay rule.

THOMAS, District Judge. The proceedings to remove this action from the state to the federal court were instituted after the granting of an order extending the time to answer, and upon a motion to remand it is urged that the petition for removal must be filed at or before the defendant is required to plead by the rules of the courts of the state, and that an order extending the time to answer is not such a rule. In support of this proposition the plaintiff cites Howard v. Railway Co. (N. C.) 29 S. E. 778; Mining Co. v. Hunter (U. S. C. C., S. D. 1894) 60 Fed. 305; Velie v. Indemnity Co. (U. S. C. C., Wis. 1889) 40 Fed. 545; Austin v. Gagan (U. S. C. C., Cal. 1889) 39 Fed. 626, 5 L. R. A. 476; Delbanco v. Singletary (U. S. C. C., Nev. 1889) 40 Fed. 177, 178; and Kaitel v. Wylie (U. S. C. C., Ill. 1889) 38 Fed. 865. In Rycroft v. Green (C. C.) 49 Fed. 177, Judge Lacombe slated: “It is the law and practice of this circuit that an extension of time to answer by order of court, whether made on stipulation or not, extends the time for removal. This was settled practice here before the decisions in other circuits which are referred to on the argument, and, in view of what an extension of time to answer is, under the Code rules and practice of the courts of this state, seems conformable alike to the loiter and the spirit of the removal act.” This holding was followed or justified in the following cases arising in the Second circuit: Winberg v. Lumber Co. (C. C.) 29 Fed. 721; Simonson v. Jordon (C. C.) 30 Fed. 721; Dwyer v. Peshall (C. C.) 32 Fed. 497; Price v. Railroad Co. (C. C.) 65 Fed. 825; Schipper v. Cordage Co. (C. C.) 72 Fed. 803; Allmark v. Steamship Co. (C. C.) 76 Fed. 614; and Mayer v. Railroad Co. (C. C.) 93 Fed. 601. A similar ruling has been made in other circuits. Lockhart v. Railroad Co.

slated: “It is the law and practice of this circuit that an extension of time to answer by order of court, whether made on stipulation or not, extends the time for removal. This was settled practice here before the decisions in other circuits which are referred to on the argument, and, in view of what an extension of time to answer is, under the Code rules and practice of the courts of this state, seems conformable alike to the loiter and the spirit of the removal act.” This holding was followed or justified in the following cases arising in the Second circuit: Winberg v. Lumber Co. (C. C.) 29 Fed. 721; Simonson v. Jordon (C. C.) 30 Fed. 721; Dwyer v. Peshall (C. C.) 32 Fed. 497; Price v. Railroad Co. (C. C.) 65 Fed. 825; Schipper v. Cordage Co. (C. C.) 72 Fed. 803; Allmark v. Steamship Co. (C. C.) 76 Fed. 614; and Mayer v. Railroad Co. (C. C.) 93 Fed. 601. A similar ruling has been made in other circuits. Lockhart v. Railroad Co. (U. S. C. C., Tenn. 1889) 38 Fed. 274; People’s Bank v. Ætna Ins. Co. (U. S. C. C., S. C. 1892) 53 Fed. 161; Chiatovich v. Hanchett (U. S. C. C., Nev. 1897) 78 Fed. 193, 195; Wilcox & Gibbs Guano Co. v. Phœnix Ins. Co. (U. S. C. C., S. C. 1894) 60 Fed. 929. The practice of this circuit requires a denial of the motion to remand.

MEMORANDUM A hastily-drawn bankruptcy settlement agreement disposing of the assets of All-vest, Inc. (“Allvest”) stated that the bankruptcy trustee would “retain” any insurance claims concerning “Allvest as insured (or insurance of any nature [sic] may apply to underlying claims by J.W. et al. and by [Evelyn] Brown for the existing judgments held by these parties) and any claims associated with such insurance including ... claims in insolvency proceedings for any insurance company.” Brown appeals from the bankruptcy court’s finding that a claim she filed against Allvest’s insurance company in insolvency proceedings was not included in the settlement. We affirm. “We review de novo a district court’s judgment on appeal from a bankruptcy court. We apply the same standard of review applied by the district court, reviewing the bankruptcy court’s legal conclusions de novo and its factual determinations for clear error.” Neilson v. United States (In re Olshan), 356 F.3d 1078, 1083 (9th Cir.2004) (internal citations omitted). “The goal in interpreting any contract is to give effect to the reasonable expectations of the parties.” Neal & Co. v. Ass’n of Village Council Presidents Regional Housing Auth., 895 P.2d 497, 502 (Alaska 1995) (internal citations and quotations omitted). “[W]hile extrinsic evidence should be consulted in determining the meaning of a written contract, nonetheless ‘after the transaction has been shown in all its length and breadth, the words of an integrated agreement remain the most important evidence of intention.’ ” Alaska Diversified Contractors, Inc. v. Lower Kuskokwim Sch. Dist., 778 P.2d 581, 584 (Alaska 1989) (citing Restatement (Second) of Contracts, § 212 cmt. b (1981)). The plain meaning of the settlement agreement defeats Brown’s interpretation. Brown argues that the word “retain” here “evinces an intent to retain any interest in Brown’s claim which Allvest had, but not to acquire that which it did not have.” According to the definition Brown cited below, however, retain means “to hold or continue to hold in possession or use.” Webster’s Third New International Dictionary 1938 (1986). The bankruptcy judge made this very point to Brown: that she was “talking about continuing to hold ... [without] talking about to hold.” The context in which

Village Council Presidents Regional Housing Auth., 895 P.2d 497, 502 (Alaska 1995) (internal citations and quotations omitted). “[W]hile extrinsic evidence should be consulted in determining the meaning of a written contract, nonetheless ‘after the transaction has been shown in all its length and breadth, the words of an integrated agreement remain the most important evidence of intention.’ ” Alaska Diversified Contractors, Inc. v. Lower Kuskokwim Sch. Dist., 778 P.2d 581, 584 (Alaska 1989) (citing Restatement (Second) of Contracts, § 212 cmt. b (1981)). The plain meaning of the settlement agreement defeats Brown’s interpretation. Brown argues that the word “retain” here “evinces an intent to retain any interest in Brown’s claim which Allvest had, but not to acquire that which it did not have.” According to the definition Brown cited below, however, retain means “to hold or continue to hold in possession or use.” Webster’s Third New International Dictionary 1938 (1986). The bankruptcy judge made this very point to Brown: that she was “talking about continuing to hold ... [without] talking about to hold.” The context in which the word appears indicates that “retain” means “hold.” The paragraph refers to “insurance of any nature [as] may apply to underlying claims ... by Brown for the existing judgments held by these parties ... including claims against ... receivers, or claims in insolvency proceedings for any insurance company.” Brown’s claim was for her existing judgment, and was against a receiver administering insolvency proceedings for All-vest’s insurer. Moreover, Brown’s interpretation is inconsistent with the rest of the settlement agreement. “Inconsistency is defined as the absence of reasonable harmony in terms of the language and respective obligations of the parties.” Froines v. Valdez Fisheries Dev. Ass’n, 75 P.3d 83, 87 (Alaska 2003) (internal citations and quotations omitted). Brown’s interpretation would create asymmetric obligations between Brown and the other remaining creditor, J.W. It would also allow her to double recover. The district court held that the lack of an offset provision indicated that all claims, including Brown’s claim against Allvest’s insurer, were intended to be transferred to the estate. The bankruptcy court also found that the extrinsic evidence supported the

the word appears indicates that “retain” means “hold.” The paragraph refers to “insurance of any nature [as] may apply to underlying claims ... by Brown for the existing judgments held by these parties ... including claims against ... receivers, or claims in insolvency proceedings for any insurance company.” Brown’s claim was for her existing judgment, and was against a receiver administering insolvency proceedings for All-vest’s insurer. Moreover, Brown’s interpretation is inconsistent with the rest of the settlement agreement. “Inconsistency is defined as the absence of reasonable harmony in terms of the language and respective obligations of the parties.” Froines v. Valdez Fisheries Dev. Ass’n, 75 P.3d 83, 87 (Alaska 2003) (internal citations and quotations omitted). Brown’s interpretation would create asymmetric obligations between Brown and the other remaining creditor, J.W. It would also allow her to double recover. The district court held that the lack of an offset provision indicated that all claims, including Brown’s claim against Allvest’s insurer, were intended to be transferred to the estate. The bankruptcy court also found that the extrinsic evidence supported the inclusion of Brown’s claim. The extrinsic evidence was conflicting, the parties’ recollections were hazy, and the testimony concerned events that took place in a rush. The bankruptcy court’s finding does not give rise to a “definite and firm conviction” that a mistake has been committed. Latman v. Burdette, 366 F.3d 774, 781 (9th Cir.2004). Finally, even if the settlement agreement could be construed to exclude Brown’s claim, the subsequent Motion to Approve the Settlement Agreement reflected the trustee’s understanding that Brown’s claim was included in the estate. Therefore, even if the trustee were mistaken in this interpretation, the parties are bound under the doctrine of mutual mistake. See Afognak Joint Venture v. Old Harbor Native Corp., 151 P.3d 451, 458 (Alaska 2007). The plain language of the settlement agreement shows that Brown transferred her claim against Allvest’s insurer to the bankruptcy estate. An examination of extrinsic evidence changes nothing: because the bankruptcy court ruled that the extrinsic evidence demonstrated Brown’s intent to transfer her claim, and because this was not clear error, there is no ground on

inclusion of Brown’s claim. The extrinsic evidence was conflicting, the parties’ recollections were hazy, and the testimony concerned events that took place in a rush. The bankruptcy court’s finding does not give rise to a “definite and firm conviction” that a mistake has been committed. Latman v. Burdette, 366 F.3d 774, 781 (9th Cir.2004). Finally, even if the settlement agreement could be construed to exclude Brown’s claim, the subsequent Motion to Approve the Settlement Agreement reflected the trustee’s understanding that Brown’s claim was included in the estate. Therefore, even if the trustee were mistaken in this interpretation, the parties are bound under the doctrine of mutual mistake. See Afognak Joint Venture v. Old Harbor Native Corp., 151 P.3d 451, 458 (Alaska 2007). The plain language of the settlement agreement shows that Brown transferred her claim against Allvest’s insurer to the bankruptcy estate. An examination of extrinsic evidence changes nothing: because the bankruptcy court ruled that the extrinsic evidence demonstrated Brown’s intent to transfer her claim, and because this was not clear error, there is no ground on which to rule that the agreement excludes Brown’s claim. AFFIRMED.

PER CURIAM: The Federal Public Defender appointed to represent Juan Jose Garcia-Garcia has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Garcia-Garcia has not filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein. We concur with' counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave' to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

BOYCE F. MARTIN, Jr., Circuit Judge. This case is a product of plaintiff-appellee Abraham Shamie’s nine-year effort to obtain a liquor license from the City of Pontiac, Michigan. Between 1970 and 1975, Sha-mie made repeated unsuccessful applications to the local licensing authorities. Finally, in December, 1975, he filed suit in federal district court against the City and various City officials. His complaint, based on 42 U.S.C. § 1983 and 28 U.S.C. § 1331, alleged violation of his due process and equal protection rights. At a preliminary hearing, counsel for defendant-appellant Pontiac assured the court that city authorities would process Shamie’s then-pending license application in accordance with routing procedures prescribed by a new city ordinance. In response to a suggestion by the district judge, Pontiac’s attorney also agreed that the licensing commission would, in the event of a negative decision, furnish Shamie with reasons supporting denial of his application. Shamie accepted the City’s proposals and on December 16, 1975, the court issued an order embodying the parties’ agreement. In May, 1976, the commission disapproved Shamie’s application. In lieu of intelligible “reasons” for its action, it offered only the pronouncement that the plan was “not consistent with the priorities established.” Shamie amended his proposal, presumably to conform to the “priorities,” and resubmitted it. City authorities again rejected the plan on June 8, 1976, this time without written comment. Shamie pursued his case in district court, which issued an opinion on December 28, 1977. Shamie v. City of Pontiac, 443 F.Supp. 679 (E.D.Mich.1977). The court found that the City had failed to accord Shamie due process and assessed “exemplary damages” of $25.00 per day, to accrue from June 8,1976, (the date the commission first failed to comply with the agreement between Shamie and the City’s attorney), until the city authorities rectified their omission. The commission finally issued reasons for another rejection of Shamie’s plan on July 12, 1979. The complaint against individual city officials was dismissed. In this appeal, the City of Pontiac seeks reversal of the damage judgment against it. Shamie cross-appeals, alleging that he is entitled to damages from the period between 1970 and December 16,

of intelligible “reasons” for its action, it offered only the pronouncement that the plan was “not consistent with the priorities established.” Shamie amended his proposal, presumably to conform to the “priorities,” and resubmitted it. City authorities again rejected the plan on June 8, 1976, this time without written comment. Shamie pursued his case in district court, which issued an opinion on December 28, 1977. Shamie v. City of Pontiac, 443 F.Supp. 679 (E.D.Mich.1977). The court found that the City had failed to accord Shamie due process and assessed “exemplary damages” of $25.00 per day, to accrue from June 8,1976, (the date the commission first failed to comply with the agreement between Shamie and the City’s attorney), until the city authorities rectified their omission. The commission finally issued reasons for another rejection of Shamie’s plan on July 12, 1979. The complaint against individual city officials was dismissed. In this appeal, the City of Pontiac seeks reversal of the damage judgment against it. Shamie cross-appeals, alleging that he is entitled to damages from the period between 1970 and December 16, 1975. He insists that he was denied due process, equal protection, and the right to petition the government even before he entered into the agreement with Pontiac’s attorney. Before reaching the merits, we must determine whether Monell v. New York Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), decided while this appeal was pending, affects our jurisdiction to hear this case. According to Monell, local governments continue to enjoy immunity from suit under 42 U.S.C. § 1983, unless “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body’s officers.” Id. at 690, 98 S.Ct. at 2036. (Emphasis added). The Supreme Court specifically declined to delineate the precise scope of the Monell rule. Id. at 701, 98 S.Ct. at 2041; see also 26 Cr.L. 2091. In this instance, however, the Pontiac licensing authority’s persistent refusal to give Shamie reasons for denying his application appears to fall within the language quoted above. In effect, Shamie has raised constitutional

1975. He insists that he was denied due process, equal protection, and the right to petition the government even before he entered into the agreement with Pontiac’s attorney. Before reaching the merits, we must determine whether Monell v. New York Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), decided while this appeal was pending, affects our jurisdiction to hear this case. According to Monell, local governments continue to enjoy immunity from suit under 42 U.S.C. § 1983, unless “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body’s officers.” Id. at 690, 98 S.Ct. at 2036. (Emphasis added). The Supreme Court specifically declined to delineate the precise scope of the Monell rule. Id. at 701, 98 S.Ct. at 2041; see also 26 Cr.L. 2091. In this instance, however, the Pontiac licensing authority’s persistent refusal to give Shamie reasons for denying his application appears to fall within the language quoted above. In effect, Shamie has raised constitutional objections to a decision binding on an organ of city government. What triggers the Monell exception is that such a deprivation has been claimed from a decision issuing from a policy or “custom” of the local government. We therefore find that the jurisdictional limitations imposed by Monell do not encompass the present case. The same reasoning applies to jurisdiction under 28 U.S.C. § 1331, since we have held that the Monell principle extends to that statute as well. Jones v. City of Memphis, Tennessee, 586 F.2d 622 (6th Cir. 1978). Accordingly, we proceed to consider the merits of Sha-mie’s arguments. We emphasize at the outset that a mere finding of jurisdiction to entertain Shamie’s claim does not determine our ultimate resolution of the substantive issues he presents. Indeed, for the reasons which follow, we hold that Shamie did not in fact suffer a denial of due process as a result of the City’s conduct. The district court found, correctly, that first-time liquor license applicants are not normally entitled even to “minimal due process” under Michigan state law.

objections to a decision binding on an organ of city government. What triggers the Monell exception is that such a deprivation has been claimed from a decision issuing from a policy or “custom” of the local government. We therefore find that the jurisdictional limitations imposed by Monell do not encompass the present case. The same reasoning applies to jurisdiction under 28 U.S.C. § 1331, since we have held that the Monell principle extends to that statute as well. Jones v. City of Memphis, Tennessee, 586 F.2d 622 (6th Cir. 1978). Accordingly, we proceed to consider the merits of Sha-mie’s arguments. We emphasize at the outset that a mere finding of jurisdiction to entertain Shamie’s claim does not determine our ultimate resolution of the substantive issues he presents. Indeed, for the reasons which follow, we hold that Shamie did not in fact suffer a denial of due process as a result of the City’s conduct. The district court found, correctly, that first-time liquor license applicants are not normally entitled even to “minimal due process” under Michigan state law. Thus, in ordinary circumstances, the City authority’s failure to give reasons for denying a liquor license would be unassailable on constitutional grounds. However, the district court went on to extend the principle of Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 723 (1972) to this case; on that basis, it decided that the agreement made in district court between Shamie and the City’s attorney gave Shamie a “property interest” in the outcome of his application. This “property interest,” in turn, entitled him to a “minimal due process,” including the right to reasons for any post-agreement denial of his application. We cannot agree with this analysis. Perry involved a college professor who had been teaching in the Texas state school system for ten years. The junior college where he was employed at the time of the litigation had no formal tenure system. He brought suit when his contract was terminated without a hearing, allegedly because he had exercised his First Amendment rights by criticizing the school’s Board of Regents. Normally, untenured employees have no

Thus, in ordinary circumstances, the City authority’s failure to give reasons for denying a liquor license would be unassailable on constitutional grounds. However, the district court went on to extend the principle of Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 723 (1972) to this case; on that basis, it decided that the agreement made in district court between Shamie and the City’s attorney gave Shamie a “property interest” in the outcome of his application. This “property interest,” in turn, entitled him to a “minimal due process,” including the right to reasons for any post-agreement denial of his application. We cannot agree with this analysis. Perry involved a college professor who had been teaching in the Texas state school system for ten years. The junior college where he was employed at the time of the litigation had no formal tenure system. He brought suit when his contract was terminated without a hearing, allegedly because he had exercised his First Amendment rights by criticizing the school’s Board of Regents. Normally, untenured employees have no “property interest” protectible by procedural due process constraints. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Tenured employees, however, do have such a property interest, and are entitled to a pre-termination hearing. Roth, supra, at 576, 92 S.Ct. at 2708, citing Slochower v. Board of Higher Education of New York, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956). Perry alleged that he enjoyed de facto tenure because of his long service and an “understanding” with the college administration, embodied in a University Board “Policy Paper.” The Supreme Court held that if Perry’s allegations were true, i. e., if he was in fact the equivalent of a tenured employee, he was entitled to a due process hearing. In the present case, Shamie is a first-time liquor license applicant; in that capacity, we repeat, he does not enjoy procedural due process rights under Michigan state law. See Morse v. Liquor Control Commission, 319 Mich. 52, 66, 29 N.W.2d 316, 322 (1967) and Bisco’s v. Liquor Commission, 395 Mich. 706,

“property interest” protectible by procedural due process constraints. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Tenured employees, however, do have such a property interest, and are entitled to a pre-termination hearing. Roth, supra, at 576, 92 S.Ct. at 2708, citing Slochower v. Board of Higher Education of New York, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956). Perry alleged that he enjoyed de facto tenure because of his long service and an “understanding” with the college administration, embodied in a University Board “Policy Paper.” The Supreme Court held that if Perry’s allegations were true, i. e., if he was in fact the equivalent of a tenured employee, he was entitled to a due process hearing. In the present case, Shamie is a first-time liquor license applicant; in that capacity, we repeat, he does not enjoy procedural due process rights under Michigan state law. See Morse v. Liquor Control Commission, 319 Mich. 52, 66, 29 N.W.2d 316, 322 (1967) and Bisco’s v. Liquor Commission, 395 Mich. 706, 716, 238 N.W.2d 166, 171 (1976). He had an agreement with the City’s attorney that he would receive reasons for future denials of his application. By analogy to Perry, he attempts to use this “understanding” with the City to bootstrap himself into the more favorable constitutional position of a license holder facing revocation of his license. This analogy is superficially attractive but analytically unsound. Perry’s “understanding” with the college authorities did not, in and of itself, endow him with procedural due process rights. Rather, that “understanding” was evidence that the lower courts had misconstrued his true status from the beginning. As the Supreme Court recognized, Perry was in fact, though not in form, a tenured professor; he was therefore entitled to treatment as such. Here, however, Shamie is in fact only a first-time license applicant: the City’s promise to tell him why his application might be rejected does not automatically confer on him a “property interest” protected by constitutional due process. The City’s agreement altered Shamie’s legal rights only insofar as he thereby became entitled

716, 238 N.W.2d 166, 171 (1976). He had an agreement with the City’s attorney that he would receive reasons for future denials of his application. By analogy to Perry, he attempts to use this “understanding” with the City to bootstrap himself into the more favorable constitutional position of a license holder facing revocation of his license. This analogy is superficially attractive but analytically unsound. Perry’s “understanding” with the college authorities did not, in and of itself, endow him with procedural due process rights. Rather, that “understanding” was evidence that the lower courts had misconstrued his true status from the beginning. As the Supreme Court recognized, Perry was in fact, though not in form, a tenured professor; he was therefore entitled to treatment as such. Here, however, Shamie is in fact only a first-time license applicant: the City’s promise to tell him why his application might be rejected does not automatically confer on him a “property interest” protected by constitutional due process. The City’s agreement altered Shamie’s legal rights only insofar as he thereby became entitled to the benefit of his bargain. Our research has produced no authority to support a contrary conclusion. Shamie’s expectations here simply do not rise to the level of the “property interests” traditionally afforded due process protection. His status is not comparable to that of welfare recipients’ loss of benefits, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); parolees threatened with revocation of parole or probation, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); wage earners against whom an order of attachment is sought, Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); or a driver who faces revocation of driver’s license, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). Neither do his interests arise from “independent sources such as state law.” See Roth, supra 408 U.S. at 577, 92 S.Ct. at 2709; Goss v. Lopez, 419 U.S. 565, 573, 95

to the benefit of his bargain. Our research has produced no authority to support a contrary conclusion. Shamie’s expectations here simply do not rise to the level of the “property interests” traditionally afforded due process protection. His status is not comparable to that of welfare recipients’ loss of benefits, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); parolees threatened with revocation of parole or probation, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); wage earners against whom an order of attachment is sought, Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); or a driver who faces revocation of driver’s license, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). Neither do his interests arise from “independent sources such as state law.” See Roth, supra 408 U.S. at 577, 92 S.Ct. at 2709; Goss v. Lopez, 419 U.S. 565, 573, 95 S.Ct. 729, 735, 42 L.Ed.2d 725 (1975); Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976); and Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979). We note in passing that the City did belatedly fulfill its promise. We also note that there is ample evidence to suggest that Shamie already knew why his application had not been approved. The record shows that Shamie altered his plans to meet specification requirements a number of times. It is clear that he was aware of the existence of a procedure to follow, but chose to do so in a haphazard fashion. When we consider, first, the circumstances surrounding this case — including the essentially local character of the controversy, see Perry, supra 408 U.S. at 603, 92 S.Ct. at 2700—and, second, the absence of precedent for shrouding an individual in Shamie’s position with constitutional protection, we are constrained to reverse the district court on this issue. Cf. Paul v. Davis, supra, 424 U.S. at 711-12, 96 S.Ct. at

S.Ct. 729, 735, 42 L.Ed.2d 725 (1975); Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976); and Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979). We note in passing that the City did belatedly fulfill its promise. We also note that there is ample evidence to suggest that Shamie already knew why his application had not been approved. The record shows that Shamie altered his plans to meet specification requirements a number of times. It is clear that he was aware of the existence of a procedure to follow, but chose to do so in a haphazard fashion. When we consider, first, the circumstances surrounding this case — including the essentially local character of the controversy, see Perry, supra 408 U.S. at 603, 92 S.Ct. at 2700—and, second, the absence of precedent for shrouding an individual in Shamie’s position with constitutional protection, we are constrained to reverse the district court on this issue. Cf. Paul v. Davis, supra, 424 U.S. at 711-12, 96 S.Ct. at 1165. Undeniably, the City should have adhered to its promise from the outset. Since that promise was embodied in a court order, the City may well have placed itself in contempt when it failed to comply. If this is indeed the case, Shamie has recourse to an adequate remedy without invoking constitutional sanctions. In any event, we decline to strain the concept of procedural due process by finding a “protected interest” where none has been deemed to exist before. We now turn to Shamie’s allegations that he was denied due process, equal protection, and the right to petition the government during the period between 1970 and 1975. The district judge made a thorough analysis of whether any due process protections obtained between 1970 and 1975, and we affirm that judgment for the reasons provided in his opinion. We also find that Shamie’s equal protection and right to petition claims, not addressed below, are without merit. There is no evidence in this case of the deliberate scheme of discrimination which characterizes an equal protection violation. Glicker v. Michigan Liquor

1165. Undeniably, the City should have adhered to its promise from the outset. Since that promise was embodied in a court order, the City may well have placed itself in contempt when it failed to comply. If this is indeed the case, Shamie has recourse to an adequate remedy without invoking constitutional sanctions. In any event, we decline to strain the concept of procedural due process by finding a “protected interest” where none has been deemed to exist before. We now turn to Shamie’s allegations that he was denied due process, equal protection, and the right to petition the government during the period between 1970 and 1975. The district judge made a thorough analysis of whether any due process protections obtained between 1970 and 1975, and we affirm that judgment for the reasons provided in his opinion. We also find that Shamie’s equal protection and right to petition claims, not addressed below, are without merit. There is no evidence in this case of the deliberate scheme of discrimination which characterizes an equal protection violation. Glicker v. Michigan Liquor Control Commission, 160 F.2d 96, 99 (6th Cir. 1947). Furthermore, the confusion Shamie apparently experienced in the maze of the local administrative process does not amount to an abridgment of his right of access as guaranteed by the First Amendment. On the contrary, Shamie petitioned frequently. Compare, California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), striking down laws which prohibited access to courts and certain agencies, and United Mine Workers of America v. Illinois State Bar Association, 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967), voiding a rule which limited access to attorneys. Finally, we affirm the district court’s dismissal of the individual defendants. Accordingly, for the reasons noted above, the case is remanded to the district court with directions to proceed in a manner not inconsistent with this opinion.

McKAY, Circuit Judge. Defendants Martin, Peters and Stipe were indicted by a federal grand jury in the Western District of Oklahoma. The multi-page, five-count indictment charges substantive violations of 15 U.S.C. § 645(a), making false statements to the Small Business Administration, as well as conspiracy and aiding and abetting. The defendants moved to dismiss, urging that as a matter of law venue could not lie in the Western District of Oklahoma and that the indictment was fatally ambiguous in failing properly to allege venue. Essentially, the dispute centers on whether venue properly lies in the district from which the alleged false statements originated or in the district where they were received by the SBA. Defendants filed a direct appeal seeking review of the district court’s order denying their motions to dismiss, and defendant Stipe has also petitioned for a writ of mandamus compelling the district court to dismiss the indictment. We ordered consolidation of the mandamus petition and appeal. APPEAL Appellate jurisdiction is urged under 28 U.S.C. § 1291. Generally, district court dispositions of pretrial motions do not qualify for immediate appellate review. By its terms, § 1291 permits appeals only from final decisions of the district courts. In order for the court’s pretrial order to be immediately appealable under § 1291, it must fall within the narrow confines of the collateral order doctrine announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). The circumstances and issues of this case do not demonstrate sufficient finality, separability and irreparable injury to justify immediate appealability of the pretrial venue ruling. Cf. Helstoski v. Meanor, 442 U.S. 500, 506-08, 99 S.Ct. 2445, 2448-49, 61 L.Ed.2d 30 (1979); United States v. MacDon ald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978); Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); Mercantile National Bank v. Langdeau, 371 U.S. 555, 557-58, 83 S.Ct. 520, 521-22, 9 L.Ed.2d 523 (1963) (construing 28 U.S.C. § 1257(2)); United States v. Sorren, 605 F.2d 1211, 1213-15 (1st Cir. 1979). MANDAMUS Traditionally, mandamus is used to confine a court

qualify for immediate appellate review. By its terms, § 1291 permits appeals only from final decisions of the district courts. In order for the court’s pretrial order to be immediately appealable under § 1291, it must fall within the narrow confines of the collateral order doctrine announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). The circumstances and issues of this case do not demonstrate sufficient finality, separability and irreparable injury to justify immediate appealability of the pretrial venue ruling. Cf. Helstoski v. Meanor, 442 U.S. 500, 506-08, 99 S.Ct. 2445, 2448-49, 61 L.Ed.2d 30 (1979); United States v. MacDon ald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978); Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); Mercantile National Bank v. Langdeau, 371 U.S. 555, 557-58, 83 S.Ct. 520, 521-22, 9 L.Ed.2d 523 (1963) (construing 28 U.S.C. § 1257(2)); United States v. Sorren, 605 F.2d 1211, 1213-15 (1st Cir. 1979). MANDAMUS Traditionally, mandamus is used to confine a court to a lawful exercise of its jurisdiction or to compel a court to exercise its authority when it is its duty to do so. Kerr v. United States District Court, 426 U.S. 394,402, 96 S.Ct. 2119, 2123,48 L.Ed.2d 725 (1976); Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145,147, 98 L.Ed. 106 (1953). Mandamus is a drastic remedy which is available only in extraordinary situations. Kerr v. United States District Court, 426 U.S. at 402, 96 S.Ct. at 2123. It is appropriate only when the petitioner’s right to relief is clear and indisputable. Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274,19 L.Ed.2d 305 (1967); Bankers Life & Casualty Co. v. Holland, 346 U.S. at 384, 74 S.Ct. at 148. A petition for a writ of mandamus may not be used as a substitute for appeal, id. at 383, 74 S.Ct. at 148, and is available only if the party seeking relief has no other remedy. See In re Chicago, Rock Island & Pacific Railway, 255 U.S.

to a lawful exercise of its jurisdiction or to compel a court to exercise its authority when it is its duty to do so. Kerr v. United States District Court, 426 U.S. 394,402, 96 S.Ct. 2119, 2123,48 L.Ed.2d 725 (1976); Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145,147, 98 L.Ed. 106 (1953). Mandamus is a drastic remedy which is available only in extraordinary situations. Kerr v. United States District Court, 426 U.S. at 402, 96 S.Ct. at 2123. It is appropriate only when the petitioner’s right to relief is clear and indisputable. Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274,19 L.Ed.2d 305 (1967); Bankers Life & Casualty Co. v. Holland, 346 U.S. at 384, 74 S.Ct. at 148. A petition for a writ of mandamus may not be used as a substitute for appeal, id. at 383, 74 S.Ct. at 148, and is available only if the party seeking relief has no other remedy. See In re Chicago, Rock Island & Pacific Railway, 255 U.S. 273, 275-76, 41 S.Ct. 288, 289-90, 65 L.Ed. 631 (1921); United States v. Sorren, 605 F.2d 1211, 1215 (1st Cir. 1979). The facts of this case do not warrant the invocation of our mandamus power. The petitioner’s right to relief is not so clear, indisputable and compelling as to justify the extraordinary remedy sought. Accordingly, the petition for writ of mandamus is denied and the appeal is dismissed. The defendants’ claims may be fully and adequately reviewed, and the defendants’ rights protected, on direct appeal in the event of conviction in the district court. . The defendants’ concern that, under Rule 4(b), Fed.R.App.P., failure to obtain immediate review will preclude later appellate review is unfounded. Even if the pretrial venue ruling in this case were found to be immediately appeal-able under Cohen, failure to bring an interlocutory appeal would not preclude review of the order by an appeal from a final disposition in the trial court. See United States v. Gaertner, 583 F.2d 308, 310 (7th Cir. 1978), cert, denied, 440 U.S. 918, 99 S.Ct. 1238, 59 L.Ed.2d

273, 275-76, 41 S.Ct. 288, 289-90, 65 L.Ed. 631 (1921); United States v. Sorren, 605 F.2d 1211, 1215 (1st Cir. 1979). The facts of this case do not warrant the invocation of our mandamus power. The petitioner’s right to relief is not so clear, indisputable and compelling as to justify the extraordinary remedy sought. Accordingly, the petition for writ of mandamus is denied and the appeal is dismissed. The defendants’ claims may be fully and adequately reviewed, and the defendants’ rights protected, on direct appeal in the event of conviction in the district court. . The defendants’ concern that, under Rule 4(b), Fed.R.App.P., failure to obtain immediate review will preclude later appellate review is unfounded. Even if the pretrial venue ruling in this case were found to be immediately appeal-able under Cohen, failure to bring an interlocutory appeal would not preclude review of the order by an appeal from a final disposition in the trial court. See United States v. Gaertner, 583 F.2d 308, 310 (7th Cir. 1978), cert, denied, 440 U.S. 918, 99 S.Ct. 1238, 59 L.Ed.2d 469 (1979).

HARLAN, Circuit Justice. The case made by the amended libel is as follows: On or about the 6th of May, 1891, the schooner American Union, owned by the respondent Annetta S. Hodman, while prosecuting a voyage on Lake Huron, was stranded at Thompson’s Harbor, and thereafter, on the 19th of May, 1894, wait to pieces and became a total wreck. Before and at the time of the disaster the respondent companies were'underwriters on the vessel, as follows: Chicago Insurance Company of Chicago, $L,500; London Assurance Company of London, England, $1,500; Western Assurance Company of Toronto, ’Canada, $2,000; and Commercial Union Assurance Company of London, England, $1,000. At tin? time of the insurance the vessel was valued at $9,000, so that its owner became and was her own insurer for $3,000. The respective policies of the underwriters provided that “no abandonment in any case whatever, even when the right to abandon may exist, shall be held or allowed as effectual or valid, unless it shall be in writing, signed by the insured, and delivered to the said company or its authorized agent; nor unless it shall be efficient, if accepted, to convey to, and vest in, the said insurance company an unincum-bered and perfect title to the subject abandoned.” On the 19th of May, 3894, James Godman, the master and attorney in fact of the owner, made a verbal abandonment of the vessel, and afterwards, on the same day, in accordance' with the provisions of the policies, made a like abandonment in writing, serving the respondents with proofs of loss on the 4th day of June, 1894. No objection wras made to the abandonment on the part of the underwriters. The policies also contained a provision that, “in case of loss or misfortune to said vessel, it shall be lawful and necessary to and for the insured, her agents, factors, servants, and assigns, to give insurers prompt notice of the disaster, and submit the plan adopted for recovering and saving the property, and to make all reasonable exertion^ in and about the defense, safeguard, and recovery of the said vessel, or any part thereof, without prejudice to this

agent; nor unless it shall be efficient, if accepted, to convey to, and vest in, the said insurance company an unincum-bered and perfect title to the subject abandoned.” On the 19th of May, 3894, James Godman, the master and attorney in fact of the owner, made a verbal abandonment of the vessel, and afterwards, on the same day, in accordance' with the provisions of the policies, made a like abandonment in writing, serving the respondents with proofs of loss on the 4th day of June, 1894. No objection wras made to the abandonment on the part of the underwriters. The policies also contained a provision that, “in case of loss or misfortune to said vessel, it shall be lawful and necessary to and for the insured, her agents, factors, servants, and assigns, to give insurers prompt notice of the disaster, and submit the plan adopted for recovering and saving the property, and to make all reasonable exertion^ in and about the defense, safeguard, and recovery of the said vessel, or any part thereof, without prejudice to this insurance; and after recovery and the holding of a survey, made under oath by two persons, * * * the insured is to cause the same to be forthwith prepared in accordance with the surveyors’ specifications;” and they further provided that “to the expenditures and amount whereof the said insurance company will contribute according to the proportion the sum insured bears to the valuation aforesaid.” While the vessel lay stranded, as above stated, the respondents employed libelants, the present appellants, as wreckers for the purpose of saving the vessel or as much thereof as could be saved. In pursuance of that employment, the libelants went to the wreck with a large and valuable amount of wrecking apparatus, tackle, apparel, and furniture, box hawsers, lighters, and diving outfits, and a large number of. men, worked at and upon the vessel for a period covering (including the return of the outfit to the port of departure) some 30 days or more, and laid out and expended in the saving of the vessel,’ at the request of the agents of

insurance; and after recovery and the holding of a survey, made under oath by two persons, * * * the insured is to cause the same to be forthwith prepared in accordance with the surveyors’ specifications;” and they further provided that “to the expenditures and amount whereof the said insurance company will contribute according to the proportion the sum insured bears to the valuation aforesaid.” While the vessel lay stranded, as above stated, the respondents employed libelants, the present appellants, as wreckers for the purpose of saving the vessel or as much thereof as could be saved. In pursuance of that employment, the libelants went to the wreck with a large and valuable amount of wrecking apparatus, tackle, apparel, and furniture, box hawsers, lighters, and diving outfits, and a large number of. men, worked at and upon the vessel for a period covering (including the return of the outfit to the port of departure) some 30 days or more, and laid out and expended in the saving of the vessel,’ at the request of the agents of the respondents, a very large sum of money; the job being completed on or about the 18th of May, 1894. The services so rendered were necessary and proper in order to save the vessel, and the prices charged for labor and materials, pumps, hawsers, lighters, and diving outfits, amounting to the sum of $3,666.75, with interest from May 18, 1894, were reasonable and customary for like services. ’ The libelants saved from the wreck the vessel’s tackle, apparel, furniture, anchors, chains, boats, rigging, sails, and the like, which were taken possession of by the wrecking master of the underwriters and sold, the proceeds being received by him as the representative of the underwriters. By the custom of the Great Lakes and seas, and by the maritime law, the salvage charges were in the nature of general average charges and expenditures, and by the custom of merchants were to be adjusted and paid as such. An adjustment of the expenditures was made at the port of Chicago, according to the custom at that port, by competent adjusters of marine losses,

the respondents, a very large sum of money; the job being completed on or about the 18th of May, 1894. The services so rendered were necessary and proper in order to save the vessel, and the prices charged for labor and materials, pumps, hawsers, lighters, and diving outfits, amounting to the sum of $3,666.75, with interest from May 18, 1894, were reasonable and customary for like services. ’ The libelants saved from the wreck the vessel’s tackle, apparel, furniture, anchors, chains, boats, rigging, sails, and the like, which were taken possession of by the wrecking master of the underwriters and sold, the proceeds being received by him as the representative of the underwriters. By the custom of the Great Lakes and seas, and by the maritime law, the salvage charges were in the nature of general average charges and expenditures, and by the custom of merchants were to be adjusted and paid as such. An adjustment of the expenditures was made at the port of Chicago, according to the custom at that port, by competent adjusters of marine losses, copies of the adjustment being served on the respondents, respectively, before the time fixed for the payment of the loss to the owner by the underwriters, and within 60 days from the date of abandonment and proofs of loss served by the owner upon the underwriters. The libelants claimed'.that there was due to them the above sum of $3,665.75, with interest. The Western Assurance Company of Toronto in its answer denied that it ever employed the libelants or any one else as wreckers for the purpose of saving the vessel or as much thereof as could be saved, or that it ever authorized the employment of the libelants or any one else for that purpose, or that the libelants in pursuance of any agreement with the respondent performed the wrecking services wet forth in the libel, and averred that, if any of the salvage mentioned in the libel was received and sold by any one, it was not as its representative or agent or on its behalf. It alleged that it insured the owner of the vessel

copies of the adjustment being served on the respondents, respectively, before the time fixed for the payment of the loss to the owner by the underwriters, and within 60 days from the date of abandonment and proofs of loss served by the owner upon the underwriters. The libelants claimed'.that there was due to them the above sum of $3,665.75, with interest. The Western Assurance Company of Toronto in its answer denied that it ever employed the libelants or any one else as wreckers for the purpose of saving the vessel or as much thereof as could be saved, or that it ever authorized the employment of the libelants or any one else for that purpose, or that the libelants in pursuance of any agreement with the respondent performed the wrecking services wet forth in the libel, and averred that, if any of the salvage mentioned in the libel was received and sold by any one, it was not as its representative or agent or on its behalf. It alleged that it insured the owner of the vessel against loss by the perils of navigation for $2,000, upon a valuation of $9,000 for the vessel, with the right to demand other and further insurance upon the vessel for §4,000, leaving an uninsured interest at the risk of the owner of the vessel of §.‘>,000, so that the interest of the respondent amounted to and did not exceed a two-ninths interest, and it could in no event be held liable for any charges or claims incurred on behalf of the vessel to the extent of more than two-ninths thereof. It further alleged that in consequence of the loss of the vessel, together with her freight, if any there was pending, the same was totally lost, and was of no further value, and respondent claimed the benefit of the act of congress passed June 26, 1884, and of the eighteenth section thereof, wherein it is provided that the individual liability of one who has an interest in the vessel shall be limited to the proportion of any and all debts and liabilities which such interest

against loss by the perils of navigation for $2,000, upon a valuation of $9,000 for the vessel, with the right to demand other and further insurance upon the vessel for §4,000, leaving an uninsured interest at the risk of the owner of the vessel of §.‘>,000, so that the interest of the respondent amounted to and did not exceed a two-ninths interest, and it could in no event be held liable for any charges or claims incurred on behalf of the vessel to the extent of more than two-ninths thereof. It further alleged that in consequence of the loss of the vessel, together with her freight, if any there was pending, the same was totally lost, and was of no further value, and respondent claimed the benefit of the act of congress passed June 26, 1884, and of the eighteenth section thereof, wherein it is provided that the individual liability of one who has an interest in the vessel shall be limited to the proportion of any and all debts and liabilities which such interest in the vessel bears to the whole, and that the aggregate liabilities of such interest in the vessel on account of the same shall not exceed the value of the vessel and freight pending. The respondent, in claiming the benefit of that act, said that by the total loss of the vessel and her freight pending it was not liable for the whole or any part of the claim of the libelants, and that if any liability ever existed the same was and became extinguished by the total loss of the vessel and her pending freight. Similar defenses were made by the other underwriters, who filed a joint answer to the amended libel. Respondent Annetta & Grodman, in her answer to the original libel, after stating that the vessel became a complete wreck, and that the master gave notice of the abandonment of the vessel to the underwriters, averred that as soon after such abandonment as she had opportunity to do so, namely, on the 4th of June, 1894, she served her proofs of loss on the

in the vessel bears to the whole, and that the aggregate liabilities of such interest in the vessel on account of the same shall not exceed the value of the vessel and freight pending. The respondent, in claiming the benefit of that act, said that by the total loss of the vessel and her freight pending it was not liable for the whole or any part of the claim of the libelants, and that if any liability ever existed the same was and became extinguished by the total loss of the vessel and her pending freight. Similar defenses were made by the other underwriters, who filed a joint answer to the amended libel. Respondent Annetta & Grodman, in her answer to the original libel, after stating that the vessel became a complete wreck, and that the master gave notice of the abandonment of the vessel to the underwriters, averred that as soon after such abandonment as she had opportunity to do so, namely, on the 4th of June, 1894, she served her proofs of loss on the insurance companies, executing a written abandonment as required by the policies? of the respective companies; that on the same day she conveyed all her right, title, and interest in the vessel, her bills of sale and abandonment being duly accepted by the companies without objection; and that afterwards all of the underwriters paid the full amount of her loss to the extent of the face of the policies. She also averred that the underwriters by virtue of the abandonment became from the moment of the casualty the owners of the vessel, and that she (respondent) ceased to have any interest therein, and that the master of the vessel became the master of the underwriters from that time until the vessel became a total loss. She further insisted that in consequence of the abandonment and loss of the vessel, together with her freight, if any there was pending, the vessel became and was a total loss, and was completely destroyed, and of no further value to her at the moment of the casualty; but if it

insurance companies, executing a written abandonment as required by the policies? of the respective companies; that on the same day she conveyed all her right, title, and interest in the vessel, her bills of sale and abandonment being duly accepted by the companies without objection; and that afterwards all of the underwriters paid the full amount of her loss to the extent of the face of the policies. She also averred that the underwriters by virtue of the abandonment became from the moment of the casualty the owners of the vessel, and that she (respondent) ceased to have any interest therein, and that the master of the vessel became the master of the underwriters from that time until the vessel became a total loss. She further insisted that in consequence of the abandonment and loss of the vessel, together with her freight, if any there was pending, the vessel became and was a total loss, and was completely destroyed, and of no further value to her at the moment of the casualty; but if it should be found that she was owner of any interest in the vessel after the moment of the casualty, or would be liable for any portion of the salvage services, she claimed the benefit of the act of congress of June 26, 1884, § 18. After the district court filed its opinion in the case (79 Fed. 970), but before a decree was entered, that court, on motion of the libel-ants, dismissed the libel as to the respondent Annetta S. Godman. A decree was rendered in the district court adjudging that the libel-ants recover from respondents, the underwriters, the sum of $2,296, or two-thirds of the amount claimed, each underwriter paying in proportion to its interest in the vessel. From that decree the libelants have prayed and were allowed by the district court an appeal to this court. In a petition for an appeal which was allowed August 2, 1897, the libelants stated that they would seek a new decision on so much of the cause as denied to petitioners the whole of their demand. After the decree

should be found that she was owner of any interest in the vessel after the moment of the casualty, or would be liable for any portion of the salvage services, she claimed the benefit of the act of congress of June 26, 1884, § 18. After the district court filed its opinion in the case (79 Fed. 970), but before a decree was entered, that court, on motion of the libel-ants, dismissed the libel as to the respondent Annetta S. Godman. A decree was rendered in the district court adjudging that the libel-ants recover from respondents, the underwriters, the sum of $2,296, or two-thirds of the amount claimed, each underwriter paying in proportion to its interest in the vessel. From that decree the libelants have prayed and were allowed by the district court an appeal to this court. In a petition for an appeal which was allowed August 2, 1897, the libelants stated that they would seek a new decision on so much of the cause as denied to petitioners the whole of their demand. After the decree in the district court the respondents filed what is called in the record a “writ of cross errors,” to the effect that the court erred (1) in finding that the respondents were not entitled to the benefit of the act of congress passed June 26, 1884; (2) in finding that the respondents, and each of them, were not entitled to limit their liability for the libelants’ claim to the amount and value of so much of the schooner American Union as was saved by their efforts; (3) in finding that the respondents employed or contracted with the libelants, or ratified the contract and employment of the libelants by Oapt. Godman; and (4) in finding that there was any sum whatever due from the respondents, or either of them, to the libelants, and in entering a decree against the respondents. 1. The appellants contend that the present appeal was from so much of the decree as denied, the full amount of their claim, and that the case can be heard in this court de novo only as

in the district court the respondents filed what is called in the record a “writ of cross errors,” to the effect that the court erred (1) in finding that the respondents were not entitled to the benefit of the act of congress passed June 26, 1884; (2) in finding that the respondents, and each of them, were not entitled to limit their liability for the libelants’ claim to the amount and value of so much of the schooner American Union as was saved by their efforts; (3) in finding that the respondents employed or contracted with the libelants, or ratified the contract and employment of the libelants by Oapt. Godman; and (4) in finding that there was any sum whatever due from the respondents, or either of them, to the libelants, and in entering a decree against the respondents. 1. The appellants contend that the present appeal was from so much of the decree as denied, the full amount of their claim, and that the case can be heard in this court de novo only as to that part oí the decree. The contention of the appellees, on the other hand, is that the appeal vacates altogether the decree of the district court, and that the cause may be heard de novo in respect of every matter covered by the pleadings. Prior to the passage of the act of March 3, 1891 (26 Stat. 826, c. 517), creating the circuit court of'appeals, it was well established that on an appeal in admiralty from a district court to a circuit court the cause was to be tried anew, as if no decree had been rendered. In Yeaton v. U. S., 5 Cranch, 281, 283, 3 L. Ed. 101, Chief Justice Marshall said: “The majority of this court is clearly of opinion that in admiralty cases an appeal suspends the sentence altogether, and that it is not res adjudicata. until the final sentence.of the appellate court be pronounced. The cause in the appellate court is to be heard de novo, as if no sentence had been passed. This has been the uniform practice, not only

to that part oí the decree. The contention of the appellees, on the other hand, is that the appeal vacates altogether the decree of the district court, and that the cause may be heard de novo in respect of every matter covered by the pleadings. Prior to the passage of the act of March 3, 1891 (26 Stat. 826, c. 517), creating the circuit court of'appeals, it was well established that on an appeal in admiralty from a district court to a circuit court the cause was to be tried anew, as if no decree had been rendered. In Yeaton v. U. S., 5 Cranch, 281, 283, 3 L. Ed. 101, Chief Justice Marshall said: “The majority of this court is clearly of opinion that in admiralty cases an appeal suspends the sentence altogether, and that it is not res adjudicata. until the final sentence.of the appellate court be pronounced. The cause in the appellate court is to be heard de novo, as if no sentence had been passed. This has been the uniform practice, not only in cases of appeal from the district to the circuit courts of the United States, but in this court also.” In The Lucille, 19 Wall. 73, 22 L. Ed. 64, the court, speaking by Mr. Justice Miller, said: “An appeal in admiralty has the effect to supersede and vacate the decree from which it is taken. A new trial, completely and entirely new, with other testimony and other pleadings, if necessary, or if asked for, is contemplated,— a new trial, in which the judgment of the court is regarded as though it had never been rendered. A new decree is to be made in the circuit court. This decree is to be enforced by the order of that court, and the record remains there. The case is not sent back to the district court for executing the decree, or for any other proceeding whatever, and that court has nothing further to do with it. The decree should therefore be complete within itself.” In Irvine v. The Hesper. 122 U. S. 256, 266, 7 Sup. Ct. 1181, 30 L.

in cases of appeal from the district to the circuit courts of the United States, but in this court also.” In The Lucille, 19 Wall. 73, 22 L. Ed. 64, the court, speaking by Mr. Justice Miller, said: “An appeal in admiralty has the effect to supersede and vacate the decree from which it is taken. A new trial, completely and entirely new, with other testimony and other pleadings, if necessary, or if asked for, is contemplated,— a new trial, in which the judgment of the court is regarded as though it had never been rendered. A new decree is to be made in the circuit court. This decree is to be enforced by the order of that court, and the record remains there. The case is not sent back to the district court for executing the decree, or for any other proceeding whatever, and that court has nothing further to do with it. The decree should therefore be complete within itself.” In Irvine v. The Hesper. 122 U. S. 256, 266, 7 Sup. Ct. 1181, 30 L. Ed. 1178, Mr. Justice Blatchford, delivering the unanimous judgment of the epurt, said: “The claimants not having appealed to the circuit court, it is suggested that they are liable i'or at least the amount awarded by the district court, and that the circuit court could not reduce that amount, but had .jurisdiction, on the actual appeal, only to increase it. It is well settled, however, that an appeal in admiralty from (lie district court to the circuit court vacates altogether the decree of the district court, and that the case is tried de novo in the circuit court. We do not think that the fact that the claimants did not appeal from the decree of the district court alters the rule. When the libel-ants appealed, they did so in view of the rule, and took the risk of the result of a trial of the case de novo. The whole case was opened by their appeal, as much as it would have been if both parties had appealed, or if the appeal had been taken only

Ed. 1178, Mr. Justice Blatchford, delivering the unanimous judgment of the epurt, said: “The claimants not having appealed to the circuit court, it is suggested that they are liable i'or at least the amount awarded by the district court, and that the circuit court could not reduce that amount, but had .jurisdiction, on the actual appeal, only to increase it. It is well settled, however, that an appeal in admiralty from (lie district court to the circuit court vacates altogether the decree of the district court, and that the case is tried de novo in the circuit court. We do not think that the fact that the claimants did not appeal from the decree of the district court alters the rule. When the libel-ants appealed, they did so in view of the rule, and took the risk of the result of a trial of the case de novo. The whole case was opened by their appeal, as much as it would have been if both parties had appealed, or if the appeal had been taken only by the claimants.” See, also, The Charles Morgan, 115 U. S. 69, 75, 5 Sup. Ct. 1172, 29 L. Ed. 316, and The Louisville, 154 U. S. 657, 14 Sup. Ct. 1190, 25 L. Ed. 771. We do not think that the rule has been changed by the above act of March 3, 1891, under which an appeal from a district court goes to the circuit court of appeals, and not to the circuit court. The clause in that act (section 11), that “all provisions of law now in force regulating the methods and system of review through appeals or writs of error shall regulate the methods and system of appeals and writs of error provided for in this act in respect of the circuit court of appeals,” does not prevent a circuit court of appeals, when hearing an appeal in admiralty, from exercising all the power that a circuit court: could have exercised in a like case prior to the act of 1891. On the contrary, that clause implies that an admiralty appeal by the libelant

by the claimants.” See, also, The Charles Morgan, 115 U. S. 69, 75, 5 Sup. Ct. 1172, 29 L. Ed. 316, and The Louisville, 154 U. S. 657, 14 Sup. Ct. 1190, 25 L. Ed. 771. We do not think that the rule has been changed by the above act of March 3, 1891, under which an appeal from a district court goes to the circuit court of appeals, and not to the circuit court. The clause in that act (section 11), that “all provisions of law now in force regulating the methods and system of review through appeals or writs of error shall regulate the methods and system of appeals and writs of error provided for in this act in respect of the circuit court of appeals,” does not prevent a circuit court of appeals, when hearing an appeal in admiralty, from exercising all the power that a circuit court: could have exercised in a like case prior to the act of 1891. On the contrary, that clause implies that an admiralty appeal by the libelant in the circuit court of appeals, under tlie act of 1891, is to be heard and determined under substantially the same rules and limitations that regulated the determination of admiralty appeals in the circuit courts prior to the passage of that act. It results that this court may properly consider and determine every issue raised by the pleadings, and, without regard to the decree below, direct such a do-cree to be entered here as is consistent: with law. If, in our judgment, the libelants are not. entitled (o a decree in any amount, — and such is the contention of the underwriters, — we may dismiss the libel, notwithstanding the underwriters did not themselves directly appeal from the decree. 2. The facts as to the stranding of the vessel, the employment of the libelants by the master, the verbal abandonment to flu: underwriters, followed by a written abandonment and service of proofs of loss on the 4th of June, 1894, are substantially as stated in the amended libel. It may be here stated, in the words

in the circuit court of appeals, under tlie act of 1891, is to be heard and determined under substantially the same rules and limitations that regulated the determination of admiralty appeals in the circuit courts prior to the passage of that act. It results that this court may properly consider and determine every issue raised by the pleadings, and, without regard to the decree below, direct such a do-cree to be entered here as is consistent: with law. If, in our judgment, the libelants are not. entitled (o a decree in any amount, — and such is the contention of the underwriters, — we may dismiss the libel, notwithstanding the underwriters did not themselves directly appeal from the decree. 2. The facts as to the stranding of the vessel, the employment of the libelants by the master, the verbal abandonment to flu: underwriters, followed by a written abandonment and service of proofs of loss on the 4th of June, 1894, are substantially as stated in the amended libel. It may be here stated, in the words of the district court, that although it was supposed, on the 18th of May, that the vessel had been saved, “on the 19th a fresh wind came up which had the effect of pounding her to pieces upon the shore, leaving no salvage, except a few chains and other like things, not amounting to over $300 in value. While the libelants were engaged in their work under the employment of the master, an agent of the underwriters was sent on their behalf to assist in the work. He came on the 13 th of May, and remained for several days thereafter, participating actively in the superintendence of the work, giving directions, and approving what the master had already done.” What was the effect of the abandonment, so far as the underwriters were concerned? Plainly, such abandonment related to the time of the original disaster, May 6, 1894, and the title became vested in the underwriters as of that date. If this be so, it would seem, upon principle, that the underwriters cannot escape responsibility altogether for

of the district court, that although it was supposed, on the 18th of May, that the vessel had been saved, “on the 19th a fresh wind came up which had the effect of pounding her to pieces upon the shore, leaving no salvage, except a few chains and other like things, not amounting to over $300 in value. While the libelants were engaged in their work under the employment of the master, an agent of the underwriters was sent on their behalf to assist in the work. He came on the 13 th of May, and remained for several days thereafter, participating actively in the superintendence of the work, giving directions, and approving what the master had already done.” What was the effect of the abandonment, so far as the underwriters were concerned? Plainly, such abandonment related to the time of the original disaster, May 6, 1894, and the title became vested in the underwriters as of that date. If this be so, it would seem, upon principle, that the underwriters cannot escape responsibility altogether for the expenses reasonably incurred under the direction or employment of the master after the stranding of the vessel, particularly when, as in this case, they were represented at the place .of the disaster during a large part of the time when efforts were made to -save the vessel, and, in effect, approved all that was done by the libel-ants and the master. In the case of The Sarah Ann, 2 Sumn. 206, 210, Fed. Cas. No. 12,342, Mr. Justice Story said: “When a loss takes place for which, an abandonment may be made, the master is not exclusively the agent of the original owners of the ship, but he is the agent of those who retroactively become owners of the ship in consequence of that event, if an abandonment is made and is justifiable. The common doctrine is that the master is the agent of all concerned in the voyage, and that he becomes, by relation, the agent of the underwriters, whenever an abandonment has been accepted, from the time of the loss to which the

the expenses reasonably incurred under the direction or employment of the master after the stranding of the vessel, particularly when, as in this case, they were represented at the place .of the disaster during a large part of the time when efforts were made to -save the vessel, and, in effect, approved all that was done by the libel-ants and the master. In the case of The Sarah Ann, 2 Sumn. 206, 210, Fed. Cas. No. 12,342, Mr. Justice Story said: “When a loss takes place for which, an abandonment may be made, the master is not exclusively the agent of the original owners of the ship, but he is the agent of those who retroactively become owners of the ship in consequence of that event, if an abandonment is made and is justifiable. The common doctrine is that the master is the agent of all concerned in the voyage, and that he becomes, by relation, the agent of the underwriters, whenever an abandonment has been accepted, from the time of the loss to which the abandonment refers, although the abandonment may not have been offered or accepted until months after the event.” In Wallace v. Insurance Co. (C. C.) 22 Fed. 66, 73, Mr. Justice Matthews said: “If the loss is partial only, then the expenses incurred are to be borne 'by each in proportion to the interests covered by the policy and those at the risk of the owners. But if the loss, under the terms of the policy, is a total loss, whether actual or constructive, any expenditures made by either constitute a part of the loss, and, as by the abandonment the whole interest in the subject of the insurance vests in the insurer, the whole expense falls upon him, without recourse upon the insured.” So, in 2 Phil. Ins. § 1708, p. 382: “An abandonment, considered as an assignment of property, must have reference to the time of the loss, for only that which is, constructively lost can be abandoned, and, to know what is lost, reference must necessarily be had to the time of the loss. From that time

abandonment refers, although the abandonment may not have been offered or accepted until months after the event.” In Wallace v. Insurance Co. (C. C.) 22 Fed. 66, 73, Mr. Justice Matthews said: “If the loss is partial only, then the expenses incurred are to be borne 'by each in proportion to the interests covered by the policy and those at the risk of the owners. But if the loss, under the terms of the policy, is a total loss, whether actual or constructive, any expenditures made by either constitute a part of the loss, and, as by the abandonment the whole interest in the subject of the insurance vests in the insurer, the whole expense falls upon him, without recourse upon the insured.” So, in 2 Phil. Ins. § 1708, p. 382: “An abandonment, considered as an assignment of property, must have reference to the time of the loss, for only that which is, constructively lost can be abandoned, and, to know what is lost, reference must necessarily be had to the time of the loss. From that time the insurers are, to most purposes at least, entitled to the advantages and subject to the liabilities of ownership. This is not inconsistent with the principle that the right of abandonment depends upon the state of the existing facts; which means, as we have seen, that the facts of which the assured is informed, and which he makes known to the underwriters as the ground of his abandonment, must constitute a total loss, and also that the loss must not have ceased to be total in the meantime. The abandonment must be authorized by-the existing facts, but as an assignment it operates retrospectively from the time of the loss.” “A valid abandonment,” says Kent, “has a retrospective effect, and does of itself, and without any deed of cession, and prior to the actual payment of the loss, transfer the right of property to the insurer to the extent of the insurance; and if, after an abandonment, duly made and accepted, the ship should be recovered, and proceed and make a prosperous voyage, the insurer, as owner,

the insurers are, to most purposes at least, entitled to the advantages and subject to the liabilities of ownership. This is not inconsistent with the principle that the right of abandonment depends upon the state of the existing facts; which means, as we have seen, that the facts of which the assured is informed, and which he makes known to the underwriters as the ground of his abandonment, must constitute a total loss, and also that the loss must not have ceased to be total in the meantime. The abandonment must be authorized by-the existing facts, but as an assignment it operates retrospectively from the time of the loss.” “A valid abandonment,” says Kent, “has a retrospective effect, and does of itself, and without any deed of cession, and prior to the actual payment of the loss, transfer the right of property to the insurer to the extent of the insurance; and if, after an abandonment, duly made and accepted, the ship should be recovered, and proceed and make a prosperous voyage, the insurer, as owner, would reap the profits.” 3 Kent, Comm. 319. In Arn. Ins. (2d Ed.) p. 1178, it is said: “The true principle seems to be that it thus acts as a transfer, not only from the time that notice of abandonment is given, but, by a retrospective operation, from the moment of the casualty that gave the right to abandon, from which time the underwriters, by virtue of the notice of abandonment, are subrogated into the place of the assured, as complete owners of the abandoned property, so far as it is covered by the insurance.”. See, also, Abb. Shipp, p. 117, note; Lown. Ins. § 263; Insurance Co. v. Svendsen, 77 Fed. 220, 228; and Coolidge v. Insurance Co., 15 Mass. 341, 346. 3. Assuming that the written abandonment to the underwriters had the effect to place them in the position of owners of the vessel, as of the date of the disaster, to what extent were they liable for the expenses incurred in the efforts to save the property between the stranding of the vessel and the date

would reap the profits.” 3 Kent, Comm. 319. In Arn. Ins. (2d Ed.) p. 1178, it is said: “The true principle seems to be that it thus acts as a transfer, not only from the time that notice of abandonment is given, but, by a retrospective operation, from the moment of the casualty that gave the right to abandon, from which time the underwriters, by virtue of the notice of abandonment, are subrogated into the place of the assured, as complete owners of the abandoned property, so far as it is covered by the insurance.”. See, also, Abb. Shipp, p. 117, note; Lown. Ins. § 263; Insurance Co. v. Svendsen, 77 Fed. 220, 228; and Coolidge v. Insurance Co., 15 Mass. 341, 346. 3. Assuming that the written abandonment to the underwriters had the effect to place them in the position of owners of the vessel, as of the date of the disaster, to what extent were they liable for the expenses incurred in the efforts to save the property between the stranding of the vessel and the date of the service upon them of the written proofs of loss? We are of opinion that the eighteenth section of the act of June 26, 1884 (23 Stat. 53, 57, c. 121), furnishes the answer to this question. That section provides: “See. 18. That the individual liability of a ship-owner shall be limited to the proportion of any or all debts and liabilities that his individual share of the vessel bears to tho whole; and the aggregate liabilities of all the owners of the vessel on account of the same shall not exceed the value of such vessel and freight pending: provided, that this provision shall not affect tho liability of any owner incurred previous to the passage of this act, nor prevent any claimant from joining all the owners in one action; nor shall the same apply to wages due to persons employed hy said ship-owners.” The liability of the underwriters in the present case arises, not from any personal contract by them with the libelants, but from the rule of law which, in the case

of the service upon them of the written proofs of loss? We are of opinion that the eighteenth section of the act of June 26, 1884 (23 Stat. 53, 57, c. 121), furnishes the answer to this question. That section provides: “See. 18. That the individual liability of a ship-owner shall be limited to the proportion of any or all debts and liabilities that his individual share of the vessel bears to tho whole; and the aggregate liabilities of all the owners of the vessel on account of the same shall not exceed the value of such vessel and freight pending: provided, that this provision shall not affect tho liability of any owner incurred previous to the passage of this act, nor prevent any claimant from joining all the owners in one action; nor shall the same apply to wages due to persons employed hy said ship-owners.” The liability of the underwriters in the present case arises, not from any personal contract by them with the libelants, but from the rule of law which, in the case of a valid abandonment, makes the insurer the owner of the vessel from the time of the original disaster. If there be more than one underwriter, each one, after a valid abandonment, has an interest in the property, as owner, to the extent of it's insurance as compared with the aggregate insurance by all the underwriters, and each is liable, upon that basis, for all expenses reasonably and properly incurred after the disaster in order to save the vessel, not exceeding the value of the vessel and the freight pending; that is, within the limit prescribed by the act of 1884, the underwriters are liable not as partners, but each for itself, to the extent of its interest in the vessel, and the interest of each is determined by ;he proportion which the amount insured hy it bears to the whole insurance on the vessel. Upon the abandonment by the insured the underwriters became, as of the date of the disaster, the owners of 5lie entire interest, right, and title of Mrs. G-odinan, and, if

of a valid abandonment, makes the insurer the owner of the vessel from the time of the original disaster. If there be more than one underwriter, each one, after a valid abandonment, has an interest in the property, as owner, to the extent of it's insurance as compared with the aggregate insurance by all the underwriters, and each is liable, upon that basis, for all expenses reasonably and properly incurred after the disaster in order to save the vessel, not exceeding the value of the vessel and the freight pending; that is, within the limit prescribed by the act of 1884, the underwriters are liable not as partners, but each for itself, to the extent of its interest in the vessel, and the interest of each is determined by ;he proportion which the amount insured hy it bears to the whole insurance on the vessel. Upon the abandonment by the insured the underwriters became, as of the date of the disaster, the owners of 5lie entire interest, right, and title of Mrs. G-odinan, and, if the vessel had been saved and restored to its original condition, they would have reaped any profits arising from such restoration. fc*o that the liability of the underwriters must be ascertained upon the basis of Iheir ownership after the abandonment, and as of the date of the original disaster, of the entire property, and not upon the basis that one-third of the property not insured was to he deemed the property of Mrs. Godrnan. The fact that the libelants might have looked to her, as the original owner, upon her personal contract, made with them through her agent, does not relieve the underwriters from the liability arising out of their becoming the owners of the entire property from the date of the disaster, in virtue of the abandonment to Them. Nor did the dismissal of the libel as to Mrs. Godman affect the rights of the libelants as against the underwriters. In this view, the district court erred in adjudging that the respondent companies were liable only for two-thirds of the claim of the libelants. Each

the vessel had been saved and restored to its original condition, they would have reaped any profits arising from such restoration. fc*o that the liability of the underwriters must be ascertained upon the basis of Iheir ownership after the abandonment, and as of the date of the original disaster, of the entire property, and not upon the basis that one-third of the property not insured was to he deemed the property of Mrs. Godrnan. The fact that the libelants might have looked to her, as the original owner, upon her personal contract, made with them through her agent, does not relieve the underwriters from the liability arising out of their becoming the owners of the entire property from the date of the disaster, in virtue of the abandonment to Them. Nor did the dismissal of the libel as to Mrs. Godman affect the rights of the libelants as against the underwriters. In this view, the district court erred in adjudging that the respondent companies were liable only for two-thirds of the claim of the libelants. Each underwriter is liable for such part of the whole claim as is represented by the amount it insured as compared with the whole insurance on the vessel. Let a decree be entered upon that basis Judge SHOWALTER participated in the hearing, but not in the decision of this case.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Curtis Richardson appeals the district court’s order accepting in part the report and recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2012) complaint. We have reviewed the record and find no reversible error on any of Richardson’s claims except for his excessive force claim. Accordingly, we deny Richardson’s motions to appoint counsel and supplement the record and affirm for the reasons stated by the district court with respect to all but the excessive force claim. Richardson v. Mahon, No. 4:15-cv-03317-RBH, 2017 WL 1094091 (D.S.C. Mar. 23, 2017). With respect to Richardson’s excessive force claim, however, we conclude the district court made an impermissible credibility determination. In particular, we conclude that the situation here is essentially that of a classic swearing contest between two litigants, and the district court thus erred in granting summary judgment to the Appellees on this claim. See Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (“[S]ummary judgment cannot be used to resolve swearing con tests between litigants.”)- Officer Mahon contended that he was attempting to speak to Richardson’s wife regarding a domestic violence complaint and Richardson approached him aggressively, “got chest to chest” with Mahon, and actively resisted arrest, so Mahon used a Taser on Richardson. Richardson averred that his wife was leaving the premises when Mahon arrived, that he did not behave aggressively or get “chest to chest” with Mahon, and that he did not resist any commands, and nevertheless, Mahon Tased him. The district court relied on Richardson’s prior criminal history to determine that no jury could find Richardson credible. However, in deciding a motion for summary judgment, a court must not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determining the credibility of the witnesses is the purview of the jury. We further conclude that the Appellees are not entitled to qualified immunity on this claim on summary judgment. See Yates v. Terry, 817 F.3d 877, 887 (4th

tests between litigants.”)- Officer Mahon contended that he was attempting to speak to Richardson’s wife regarding a domestic violence complaint and Richardson approached him aggressively, “got chest to chest” with Mahon, and actively resisted arrest, so Mahon used a Taser on Richardson. Richardson averred that his wife was leaving the premises when Mahon arrived, that he did not behave aggressively or get “chest to chest” with Mahon, and that he did not resist any commands, and nevertheless, Mahon Tased him. The district court relied on Richardson’s prior criminal history to determine that no jury could find Richardson credible. However, in deciding a motion for summary judgment, a court must not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determining the credibility of the witnesses is the purview of the jury. We further conclude that the Appellees are not entitled to qualified immunity on this claim on summary judgment. See Yates v. Terry, 817 F.3d 877, 887 (4th Cir. 2016). Accordingly, we vacate the judgment of the district court with respect to Richardson’s excessive force claim and remand the case for further proceedings. We affirm the judgment of the district court with respect to all other claims. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED

PER CURIAM: Harold Mason, proceeding pro se, appeals the district court’s sua sponte dismissal of his complaint under 28 U.S.C. § 1915(e)(2)(B). After careful review, we affirm. I. Mason filed a pro se complaint against the Georgia Department of Labor and five of its employees. In his complaint, Mason asserted three claims for relief, all under “42 U.S.C. § 1991 ... Civil Rights Act in/for Deprivation of Rights.” For each claim, Mason’s allegations related to his employment with Flint RiverQuarium, Inc. Those allegations included a hostile work environment, failure to promote, unfair termination, and retaliation. Mason also moved for leave to proceed in forma pau-peris (“IFP”). The district court granted Mason IFP status but dismissed his complaint because it was frivolous and failed to state a claim on which relief may be granted under 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii). The court observed that 42 U.S.C. § 1991 “concerns fees and persons who may be appointed to execute process under 42 U.S.C. § 1989, which relates to arrest warrants and federal. magistrate judges,” and not employment or civil rights claims. The court therefore dismissed as frivolous- Mason’s claims, to the extent they were brought under § 1991. The district court also examined Mason’s complaint to determine whether it stated a claim under 42 U.S.C. § 1981. The court found that Mason failed to allege how the defendants discriminated or retaliated against him. Indeed, the court noted that his relevant allegations were against his former employer, Flint RiverQuarium, who was not named as a defendant. The district court therefore held that Mason’s complaint failed to state a claim under § 1981. Mason moved for reconsideration, explaining he was referring to the Civil Rights Act of 1991. The district court denied the motion, explaining the Civil Rights Act of 1991 “concern[s], with respect to civil rights claims, recovery of damages for claims under 42 U.S.C. § 2000e,” and holding that Mason failed to state a claim under § 2000e, as well. This appeal followed. II. When a plaintiff requests IFP status in filing a lawsuit, courts are required to dismiss the suit if it “fails to state a claim on

claims. The court therefore dismissed as frivolous- Mason’s claims, to the extent they were brought under § 1991. The district court also examined Mason’s complaint to determine whether it stated a claim under 42 U.S.C. § 1981. The court found that Mason failed to allege how the defendants discriminated or retaliated against him. Indeed, the court noted that his relevant allegations were against his former employer, Flint RiverQuarium, who was not named as a defendant. The district court therefore held that Mason’s complaint failed to state a claim under § 1981. Mason moved for reconsideration, explaining he was referring to the Civil Rights Act of 1991. The district court denied the motion, explaining the Civil Rights Act of 1991 “concern[s], with respect to civil rights claims, recovery of damages for claims under 42 U.S.C. § 2000e,” and holding that Mason failed to state a claim under § 2000e, as well. This appeal followed. II. When a plaintiff requests IFP status in filing a lawsuit, courts are required to dismiss the suit if it “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). We review de novo “[a] district court’s sua sponte dismissal for failure to state a claim under § 1915(e)(2)(B)(ii).” Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). We liberally construe pro se pleadings in the district court, as well as pro se briefs on appeal. Harris v. United Auto. Ins. Grp., Inc., 579 F.3d 1227, 1231 n.2 (11th Cir. 2009) (per curiam); Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam). Mason challenges the district court’s rulings that he failed to state a claim under § 1981 and the Civil Rights Act of 1991, We .address each in turn. A. One element of a race discrimination claim under § 1981 is “that the defendant intended to discriminate on the basis of race.” Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1270 (11th Cir. 2004). Mason did not allege that the Georgia Department of Labor or any of its employees intended to discriminate against him. His allegations of discrimination were all against employees of Flint

which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). We review de novo “[a] district court’s sua sponte dismissal for failure to state a claim under § 1915(e)(2)(B)(ii).” Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). We liberally construe pro se pleadings in the district court, as well as pro se briefs on appeal. Harris v. United Auto. Ins. Grp., Inc., 579 F.3d 1227, 1231 n.2 (11th Cir. 2009) (per curiam); Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam). Mason challenges the district court’s rulings that he failed to state a claim under § 1981 and the Civil Rights Act of 1991, We .address each in turn. A. One element of a race discrimination claim under § 1981 is “that the defendant intended to discriminate on the basis of race.” Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1270 (11th Cir. 2004). Mason did not allege that the Georgia Department of Labor or any of its employees intended to discriminate against him. His allegations of discrimination were all against employees of Flint RiverQuari-um, which was not named as a defendant in his complaint. Mason therefore failed to state a claim against these defendants under § 1981. B. We reach the same result if we construe Mason’s complaint to allege claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Title VII prohibits employers from discriminating and retaliating against their employees, as well as from permitting a hostile work environment. See, e.g., McCann v. Tillman, 526 F.3d 1370, 1373, 1375, 1378 (11th Cir. 2008). While Mason alleged a hostile work environment, failure to promote, unfair termination, and retaliation, none of his allegations were against the named defendants. Neither did Mason allege that he worked for the Georgia Department of Labor. Mason therefore failed to state a claim against these defendants under Title VII. AFFIRMED. . The court also pointed out that Mason’s employment claims were litigated in an earlier lawsuit, in which Flint RiverQuarium was granted summary judgment. See Mason v. George, 24 F.Supp.3d 1254 (M.D. Ga. 2014). . As part of the Civil Rights Act of 1991,

RiverQuari-um, which was not named as a defendant in his complaint. Mason therefore failed to state a claim against these defendants under § 1981. B. We reach the same result if we construe Mason’s complaint to allege claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Title VII prohibits employers from discriminating and retaliating against their employees, as well as from permitting a hostile work environment. See, e.g., McCann v. Tillman, 526 F.3d 1370, 1373, 1375, 1378 (11th Cir. 2008). While Mason alleged a hostile work environment, failure to promote, unfair termination, and retaliation, none of his allegations were against the named defendants. Neither did Mason allege that he worked for the Georgia Department of Labor. Mason therefore failed to state a claim against these defendants under Title VII. AFFIRMED. . The court also pointed out that Mason’s employment claims were litigated in an earlier lawsuit, in which Flint RiverQuarium was granted summary judgment. See Mason v. George, 24 F.Supp.3d 1254 (M.D. Ga. 2014). . As part of the Civil Rights Act of 1991, plaintiffs can recover compensatory and punitive damages under Title VII. See EEOC v. W&O, Inc., 213 F.3d 600, 611 (11th Cir. 2000).

Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Thomas F. Kaston seeks to appeal the district court’s order adopting the magistrate judge’s recommendation and affirming the Commissioner’s decision denying Kaston’s application for disability benefits. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed. When the United States or its officer or agency is a party, the notice of appeal must be filed no more than 60 days after the entry of the district court’s final judgment or order, Fed. R. App. P. 4(a)(1)(B), unless the district court extends the appeal period under Fed. R. App. P. 4(a)(5), or reopens the appeal period under Fed. R. App. P. 4(a)(6). “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). The district court’s order was entered on the docket on January 23, 2017. The notice of appeal was filed on March 27, 2017. Because Kaston failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED Although we dismiss for lack of jurisdiction, we note that Kaston waived appellate review of the district court's order by failing to file timely specific objections to the magistrate judge’s recommendation despite being warned of the consequences. See Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

ORDER AND JUDGMENT Nancy L. Moritz, Circuit Judge Cedric Greene brought suit against Logisticare Solutions, Inc., alleging negligent infliction of emotional distress. On July 18, 2016, the district court dismissed Greene’s complaint sua sponte for lack of subject matter jurisdiction. Greene then filed a notice of appeail on April 14, 2017. We abated Greene’s appeal and remanded the case to the district court with directions to treat the notice of appeal as a motion to reopen time to file an appeal. See Fed. R. App. P. 4(a)(6). The district court denied Greene’s motion to reopen as untimely. Accordingly, we dismissed Greene’s appeal for lack of jurisdiction. Greene then filed a second Rule 4(a)(6) motion to reopen, which the district court also denied. Greene now timely appeals that decision. We generally review a district court’s denial of a Rule 4(a)(6) motion for abuse of discretion. Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). But Greene makes no effort to explain whether—let alone how—the district court abused its discretion in denying his second Rule 4(a)(6) motion. Thus, we affirm. See Nixon v. City and Cty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (“[T]he first task of an appellant is to explain to us why the district court’s decision was wrong.”); Johnson v. Johnson, 466 F.3d 1213, 1215 (10th Cir. 2006) (affirming ruling that went unchallenged on appeal). After examining Greene’s brief and the appellate record, this panel has determined unanimously that oral argument wouldn’t materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.

PER CURIAM: Robert Timothy Blake pleaded guilty pursuant to a plea agreement to distribution of child pornography and possession of child pornography. The plea agreement contained an appeal waiver, in which he waived the right to appeal his sentence on any ground but reserved the right to challenge his sentence based on claims of ineffective assistance of counsel or prosecuto-rial misconduct. He contends that the Government breached the plea agreement when it made the following statements at the sentencing hearing: Blake took photographs of neighborhood children on a camera found during the execution of a search warrant of his residence; he sexually abused his daughter; and he fled from Rhode Island to evade an investigation of his alleged possession of child pornography. Because Blake did not object to a breach in the district court, review is limited to plain error. See United States v. Hebron, 684 F.3d 554, 557-58 (5th Cir. 2012). To show plain error, he must show a forfeited error that is clear or obvious and that affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If he makes such a showing, this court has the discretion to correct the error but only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks and citations omitted). Blake has not shown that the Government’s statements constituted a clear and obvious breach of the plea agreement. See id; Hebron, 684 F.3d at 557-58; United States v. Casillas, 853 F.3d 215, 218 (5th Cir. 2017), petition for cert. filed (June 27, 2017) (No. 17-5081); United States v. Hinojosa, 749 F.3d 407, 413-14 (5th Cir. 2014). Because no breach of the plea agreement invalidated the appeal waiver, we will examine whether the waiver is otherwise knowing and voluntary. See United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Blake did not specifically object to the district court’s compliance Federal Rule of Criminal Procedure ll(b)(l)(N) and, therefore, review is limited to plain error. See United States v. Oliver, 630 F.3d 397, 411-12 (5th Cir. 2011). At rearraignment,

States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If he makes such a showing, this court has the discretion to correct the error but only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks and citations omitted). Blake has not shown that the Government’s statements constituted a clear and obvious breach of the plea agreement. See id; Hebron, 684 F.3d at 557-58; United States v. Casillas, 853 F.3d 215, 218 (5th Cir. 2017), petition for cert. filed (June 27, 2017) (No. 17-5081); United States v. Hinojosa, 749 F.3d 407, 413-14 (5th Cir. 2014). Because no breach of the plea agreement invalidated the appeal waiver, we will examine whether the waiver is otherwise knowing and voluntary. See United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Blake did not specifically object to the district court’s compliance Federal Rule of Criminal Procedure ll(b)(l)(N) and, therefore, review is limited to plain error. See United States v. Oliver, 630 F.3d 397, 411-12 (5th Cir. 2011). At rearraignment, the district court advised Blake that he had waived his right to appeal his sentence, except for claims of ineffective assistance of counsel and prose-cutorial misconduct; Blake stated that he understood and did not express any confusion or ask any questions concerning the appeal waiver. Blake knowingly and voluntarily waived his right to appeal, and the appeal waiver is valid and enforceable. See United States v. Jacobs, 635 F.3d 778, 781 (5th Cir. 2011). Therefore, Blake’s remaining claims challenging the substantive reasonableness of the sentence and the adver sarial nature of the sentencing hearing are barred by the appeal waiver. See id. APPEAL DISMISSED. Pursuant to 5th Cíe, R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

ORDER DENYING CERTIFICATE OF APPEALABILITY Paul J. Kelly, Jr., Circuit Judge Defendant-Appellant Peter Paul Aman, a federal inmate appearing pro se, seeks a certificate of appealability (“COA”) to appeal from the district court’s dismissal of his 28 U.S.C. § 2255 motion to vacate his sentence. United States v. Aman, No. 6:04-CR-10244-JTM, 2017 WL 1437313 (D. Kan. Apr. 24, 2017). To obtain a' COA, Mr. Aman must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Because Mr. Aman has not made such a showing, we deny a COA and dismiss the appeal. In 2005, Mr. Aman pled guilty and was sentenced to 15 years for unlawful receipt and distribution of child pornography. 18 U.S.C. § 2252(a)(2). Mr. Aman sought to appeal, but we granted the government’s motion to enforce the plea agreement which contains a waiver of the right to appeal or collaterally attack. United States v. Aman, No. 05-3161 (10th Cir. Nov. 9, 2005). Mr. Aman again proceeds under § 2255 alleging that provisions in the statutory and sentencing guidelines punishing child pornography are similarly vague to those found unconstitutional in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). He also contends that a recent amendment to the Sentencing Guidelines should result in a reduction of his sentence. The district court granted the government’s motion to enforce the plea agreement waiver and dismissed Mr. Aman’s § 2225 motion and denied a COA. Aman, 2017 WL 1437313 at *2. For this court to grant a COA, Mr. Aman must show that “reasonable jurists could debate whether.. .the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (citation and internal quotation marks omitted). On appeal, Mr. Aman renews his contentions, and specifically argues that Amendment 801 to the Sentencing Guidelines should result in the removal of a five-point enhancement under U.S.S.G. § 2G2.2. The district court correctly applied

proceeds under § 2255 alleging that provisions in the statutory and sentencing guidelines punishing child pornography are similarly vague to those found unconstitutional in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). He also contends that a recent amendment to the Sentencing Guidelines should result in a reduction of his sentence. The district court granted the government’s motion to enforce the plea agreement waiver and dismissed Mr. Aman’s § 2225 motion and denied a COA. Aman, 2017 WL 1437313 at *2. For this court to grant a COA, Mr. Aman must show that “reasonable jurists could debate whether.. .the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (citation and internal quotation marks omitted). On appeal, Mr. Aman renews his contentions, and specifically argues that Amendment 801 to the Sentencing Guidelines should result in the removal of a five-point enhancement under U.S.S.G. § 2G2.2. The district court correctly applied the Hahn factors to determine the enforceability of the waiver. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004). Its conclusions that the waiver applies and that, in any event, Amendment 801 is not retroactive, are not reasonably debatable. We therefore DENY Mr. Aman’s request for a COA, DENY his request to proceed IFP, and DISMISS his appeal.

JERRY E. SMITH, Circuit Judge: Elmo Istre appeals an order of the district court remanding his disability-benefits claim for further consideration by the Social Security Appeals Council. Because we agree with Istre that the remand comported with neither type of remand approved by the Social Security Act, we vacate and remand to the district court for further consideration. I. Istre applied for supplemental security income disability benefits. An administrative law judge (“ALJ”) determined that Istre suffers from chronic obstructive lung disease and chronic lower back pain, which are severe impairments, but, relying on the testimony of a vocational expert, held that Istre is not fully disabled, because he is able to perform certain sedentary work functions. Istre requested review of the ALJ’s ruling by the Appeals Council and provided additional evidence- — a psychological assessment and hospital records. The Appeals Council denied review, noting that its consideration of the new evidence did not provide a basis for altering the ALJ’s determination. This rendered the ALJ’s determination the final decision of the Social Security Commissioner. Istre sued, seeking review of the Commissioner’s decision. After the Commissioner answered, Istre moved for summary judgment, requesting reversal of the Commissioner’s decision and the award of benefits, or remand to the agency for further consideration of the evidence he had submitted to the Appeals Council. In response, the Commissioner moved for remand, pursuant to the fourth sentence of 42 U.S.C. § 405(g), for further administrative proceedings — namely, for the ALJ “to obtain consultative general medical and mental status examinations with pulmonary function studies and psychological testing and functional assessments.” The Commissioner desired reevaluation of Is-tre’s residual functional, capacity in light of his mental impairments, which included alcoholism. Istre then opposed the motion for remand and requested reversal of the Commissioner’s decision, with any remand for the sole purpose of determining the amount of benefits. The magistrate judge recommended granting the Commissioner’s motion for remand and denying Istre’s summary judgment motion, because Istre had “failed to prove his entitlement to benefits by a clear preponderance of the evidence.” The district court independently reviewed the record, adopted the magistrate judge’s report, denied

Commissioner’s decision. After the Commissioner answered, Istre moved for summary judgment, requesting reversal of the Commissioner’s decision and the award of benefits, or remand to the agency for further consideration of the evidence he had submitted to the Appeals Council. In response, the Commissioner moved for remand, pursuant to the fourth sentence of 42 U.S.C. § 405(g), for further administrative proceedings — namely, for the ALJ “to obtain consultative general medical and mental status examinations with pulmonary function studies and psychological testing and functional assessments.” The Commissioner desired reevaluation of Is-tre’s residual functional, capacity in light of his mental impairments, which included alcoholism. Istre then opposed the motion for remand and requested reversal of the Commissioner’s decision, with any remand for the sole purpose of determining the amount of benefits. The magistrate judge recommended granting the Commissioner’s motion for remand and denying Istre’s summary judgment motion, because Istre had “failed to prove his entitlement to benefits by a clear preponderance of the evidence.” The district court independently reviewed the record, adopted the magistrate judge’s report, denied Istre’s summary judgment motion, and remanded, purportedly pursuant to the fourth sentence of § 405(g), for further agency action. II. In this context — the appeal by a complainant to the district court of a denial of benefits by the Appeals Council — a district court may remand to the Appeals Council in only two circumstances: [W]e [have] examined closely the language of § 405(g) and identified two kinds of remands under that statute: (1) remands pursuant to the fourth sentence, and (2) remands pursuant to the sixth sentence. The fourth sentence of § 405(g) authorizes a court to enter a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the case for rehearing.... The sixth sentence of § 405(g) ... describes an entirely different kind of remand. The district court does not affirm, modify, or reverse the Secretary’s decision; it does not rule in any way as to the correctness of the administrative determination. Rather, the court remands because new evidence has come to light that was not available to the claimant at

Istre’s summary judgment motion, and remanded, purportedly pursuant to the fourth sentence of § 405(g), for further agency action. II. In this context — the appeal by a complainant to the district court of a denial of benefits by the Appeals Council — a district court may remand to the Appeals Council in only two circumstances: [W]e [have] examined closely the language of § 405(g) and identified two kinds of remands under that statute: (1) remands pursuant to the fourth sentence, and (2) remands pursuant to the sixth sentence. The fourth sentence of § 405(g) authorizes a court to enter a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the case for rehearing.... The sixth sentence of § 405(g) ... describes an entirely different kind of remand. The district court does not affirm, modify, or reverse the Secretary’s decision; it does not rule in any way as to the correctness of the administrative determination. Rather, the court remands because new evidence has come to light that was not available to the claimant at the time of the administrative proceeding and that evidence might have changed the outcome of the prior proceedings. The statute provides that following a sentence six remand, the Secretary must return to the district court to file with the court any such additional or modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based. ... While we did not state explicitly [in our former cases] that these were the only kinds of remands permitted under the statute, we do so today. Melkonyan v. Sullivan, 501 U.S. 89, 97-99, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991) (internal citations and quotation marks omitted). The Court also specified requirements for a remand under these two sentences of § 405(g) to be considered legally effective: The parties agree that the remand order in this case was not entered pursuant to sentence four, as the District Court did not affirm, modify, or reverse the Secretary’s decision. We concur. The District Court did not make any substantive ruling; it merely

the time of the administrative proceeding and that evidence might have changed the outcome of the prior proceedings. The statute provides that following a sentence six remand, the Secretary must return to the district court to file with the court any such additional or modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based. ... While we did not state explicitly [in our former cases] that these were the only kinds of remands permitted under the statute, we do so today. Melkonyan v. Sullivan, 501 U.S. 89, 97-99, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991) (internal citations and quotation marks omitted). The Court also specified requirements for a remand under these two sentences of § 405(g) to be considered legally effective: The parties agree that the remand order in this case was not entered pursuant to sentence four, as the District Court did not affirm, modify, or reverse the Secretary’s decision. We concur. The District Court did not make any substantive ruling; it merely returned the case to the agency for disposition, noting that both parties agreed to this course. ... [T]he sixth sentence of § 405(g) requires a showing of “good cause” for the failure to present the additional evidence in the prior proceeding^ here] the District Court did not rule explicitly that such a showing had been made. The Secretary also notes that the District Court did not manifest any intent to retain jurisdiction, as would be the case under sentence six, but rather remanded to the agency “for all further proceedings.” Id. at 98-99, 111 S.Ct. 2157 (internal citations and some quotation marks omitted). Hence, certain requisites must be met if a remand is to fit under sentence four or sentence six, and the Supreme Court has explained firmly that, if the remand does not fit into either category, it is not proper. See also Richard v. Sullivan, 955 F.2d 354 (5th Cir.1992) (following Melkonyan). Accordingly, we must decide whether the district court’s remand fits within sentence four or six. The record illustrates that it does not fit within

returned the case to the agency for disposition, noting that both parties agreed to this course. ... [T]he sixth sentence of § 405(g) requires a showing of “good cause” for the failure to present the additional evidence in the prior proceeding^ here] the District Court did not rule explicitly that such a showing had been made. The Secretary also notes that the District Court did not manifest any intent to retain jurisdiction, as would be the case under sentence six, but rather remanded to the agency “for all further proceedings.” Id. at 98-99, 111 S.Ct. 2157 (internal citations and some quotation marks omitted). Hence, certain requisites must be met if a remand is to fit under sentence four or sentence six, and the Supreme Court has explained firmly that, if the remand does not fit into either category, it is not proper. See also Richard v. Sullivan, 955 F.2d 354 (5th Cir.1992) (following Melkonyan). Accordingly, we must decide whether the district court’s remand fits within sentence four or six. The record illustrates that it does not fit within sentence six. The Commissioner explicitly asked for a determination under sentence four, and the magistrate judge and district judge explicitly granted remand under that sentence. The orders contained no explicit findings that good cause existed to consider new evidence or that the court retained jurisdiction. The remand did not therefore occur properly under sentence six. Attention then turns to sentence four. In Melkonyan, the district court had issued an order stating, in its entirety, that “[djefendant’s motion to remand, concurred in by plaintiff, is granted. The matter is remanded to the Secretary for all further proceedings.” 501 U.S. at 92, 111 S.Ct. 2157. The Court found that this order did not satisfy the requirements of sentence four, because “the District Court did not make any substantive ruling; it merely returned the case to the agency for disposition.” Id. at 98, 111 S.Ct. 2157. The instant ease presents a factually indistinguishable situation. The district court ordered that “[f]or the reasons stated in the Report and Recommendation of the Magistrate Judge ... It is [ordered] that ... the Commissioner’s

sentence six. The Commissioner explicitly asked for a determination under sentence four, and the magistrate judge and district judge explicitly granted remand under that sentence. The orders contained no explicit findings that good cause existed to consider new evidence or that the court retained jurisdiction. The remand did not therefore occur properly under sentence six. Attention then turns to sentence four. In Melkonyan, the district court had issued an order stating, in its entirety, that “[djefendant’s motion to remand, concurred in by plaintiff, is granted. The matter is remanded to the Secretary for all further proceedings.” 501 U.S. at 92, 111 S.Ct. 2157. The Court found that this order did not satisfy the requirements of sentence four, because “the District Court did not make any substantive ruling; it merely returned the case to the agency for disposition.” Id. at 98, 111 S.Ct. 2157. The instant ease presents a factually indistinguishable situation. The district court ordered that “[f]or the reasons stated in the Report and Recommendation of the Magistrate Judge ... It is [ordered] that ... the Commissioner’s Motion for Remand be [granted] and this matter be [remanded].” The magistrate judge’s report explained that “the Commissioner wants a remand for the purposes of further developing the record and to properly evaluate Plaintiffs alcoholism in the full context of his health status.” The magistrate judge suggested, and the district judge provided, no substantive ruling, whether “affirming, modifying or reversing” the ALJ’s order; the court merely remanded for further consideration. This does not satisfy the requirements of sentence four. For the proposition that a sentence-four remand was appropriate under these circumstances, the Commissioner cites Shalala v. Schaefer, 509 U.S. 292, 297, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), in which the Court did hold the district court to have issued a proper sentence-four remand. The remand order issued by the district court therein, however, explicitly reversed the previous decision of the Secretary. That reversal placed the remand squarely within the dictates of sentence four; it is lacking here. III. The Commissioner, to the contrary, argues that certain precedent of this circuit leads to the conclusion that a valid

Motion for Remand be [granted] and this matter be [remanded].” The magistrate judge’s report explained that “the Commissioner wants a remand for the purposes of further developing the record and to properly evaluate Plaintiffs alcoholism in the full context of his health status.” The magistrate judge suggested, and the district judge provided, no substantive ruling, whether “affirming, modifying or reversing” the ALJ’s order; the court merely remanded for further consideration. This does not satisfy the requirements of sentence four. For the proposition that a sentence-four remand was appropriate under these circumstances, the Commissioner cites Shalala v. Schaefer, 509 U.S. 292, 297, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), in which the Court did hold the district court to have issued a proper sentence-four remand. The remand order issued by the district court therein, however, explicitly reversed the previous decision of the Secretary. That reversal placed the remand squarely within the dictates of sentence four; it is lacking here. III. The Commissioner, to the contrary, argues that certain precedent of this circuit leads to the conclusion that a valid sentence-four remand has occurred here. We disagree. The line of authority to which the Commissioner refers begins with Frizzell v. Sullivan, 937 F.2d 254 (5th Cir.1991), which issued a few months after Melko-nyan without speaking to it. In Frizzell, we held that a district court’s order to “remand Frizzell’s case to the Secretary a second time for further development of the record concerning Frizzell’s ability to do past relevant work” was a final order, because orders under sentence four are always final, and because the order had the effect of “dismissing] Frizzell’s claim for lack of jurisdiction.” Id. at 255-57. Next came Luna v. Department of Health & Human Servs., 948 F.2d 169 (5th Cir.1991), and Bertrand v. Sullivan, 976 F.2d 977 (5th Cir.1992). In these two cases, this court held that orders remanding to the Secretary for further consideration were final sentence-four remands, either because the parties said they were or because they did not fit within the confines of a sentence-six remand. Frizze.il, Luna and Bertrand are distinguishable from the instant matter in that there, the

sentence-four remand has occurred here. We disagree. The line of authority to which the Commissioner refers begins with Frizzell v. Sullivan, 937 F.2d 254 (5th Cir.1991), which issued a few months after Melko-nyan without speaking to it. In Frizzell, we held that a district court’s order to “remand Frizzell’s case to the Secretary a second time for further development of the record concerning Frizzell’s ability to do past relevant work” was a final order, because orders under sentence four are always final, and because the order had the effect of “dismissing] Frizzell’s claim for lack of jurisdiction.” Id. at 255-57. Next came Luna v. Department of Health & Human Servs., 948 F.2d 169 (5th Cir.1991), and Bertrand v. Sullivan, 976 F.2d 977 (5th Cir.1992). In these two cases, this court held that orders remanding to the Secretary for further consideration were final sentence-four remands, either because the parties said they were or because they did not fit within the confines of a sentence-six remand. Frizze.il, Luna and Bertrand are distinguishable from the instant matter in that there, the issue whether the remand was a proper sentence-four remand was not before the court; in each case, the court merely assumed a proper sentence-four remand. Any attempt to infer from these cases an understanding that sentence four provides a “catch-all” provision for district court remands would be error. Where, as here, the question is whether any proper remand has occurred, these authorities do not require us to say that a proper remand has occurred. Because the Social Security Act permits remands from the district court to the Appeals Council in only two instances, and because the remand in this case comports with neither, we VACATE the remand order of the district court and REMAND this ease to the district court for further proceedings. . See Luna, 948 F.2d at 170-71 (explaining that "[t]he Secretary claims that the instant case involves a fourth-sentence remand,” and then analyzing it as one) (emphasis added); Bertrand, 976 F.2d at 979 (explaining that the remand did not fulfill the requirements of a sentence-six remand, noting that Melkonyan allowed only for sentence-four and

issue whether the remand was a proper sentence-four remand was not before the court; in each case, the court merely assumed a proper sentence-four remand. Any attempt to infer from these cases an understanding that sentence four provides a “catch-all” provision for district court remands would be error. Where, as here, the question is whether any proper remand has occurred, these authorities do not require us to say that a proper remand has occurred. Because the Social Security Act permits remands from the district court to the Appeals Council in only two instances, and because the remand in this case comports with neither, we VACATE the remand order of the district court and REMAND this ease to the district court for further proceedings. . See Luna, 948 F.2d at 170-71 (explaining that "[t]he Secretary claims that the instant case involves a fourth-sentence remand,” and then analyzing it as one) (emphasis added); Bertrand, 976 F.2d at 979 (explaining that the remand did not fulfill the requirements of a sentence-six remand, noting that Melkonyan allowed only for sentence-four and sentence-six remands, and then holding that "it follows, then, from Melkonyan, that the remand here can only be a fourth-sentence remand" (without considering the possibility that the remand failed the tests of both sentences)). . See Frizzell, 937 F.2d at 257 (explaining that "Frizzell concedes this case involves a sentence four remand”); Luna, 948 F.2d at 170 (same); Bertrand, 976 F.2d at 979 (illustrating that the question was what type of proper remand was before the court, not whether there was a proper remand at all).

DECISION AND ORDER AFFIRMING IN PART AND REVERSING IN PART THE DECISION OF THE BANKRUPTCY COURT McMAHON, District Judge. Before the court are consolidated appeals from a decision and order of the United States Bankruptcy Court for the Southern District of New York (Gonzalez, J.) entered in the bankruptcy proceeding of the now-infamous Enron Corporation and its affiliates. In connection with a challenge mounted by appellees The Bau-post Group, LLC and Abrams Capital, LLC (“Baupost/Abrams”) to the Amended Schedule S filed by Debtors, Judge Gonzalez held (in pertinent part) that two sets of claims — the so-called Cherokee Claim and the so-called EFP Claim- — did not fall under the definition of “Senior Indebtedness” and so were not entitled to the benefits of subordination under three of Enron’s indentures — the two so-called TOPRS Indentures and the 1987 Indenture. Appellants are lenders (individually under Docket No. 07 Civ. 7941, and represented by their agent, JPMorgan Chase Bank N.A. (“JPMC”), under Docket No. 07 Civ. 7757) whose loans were deemed subordinated by virtue of the Bankruptcy Court’s decision; they challenge his interpretation of the definition of “Senior Indebtedness” under both indentures. For the reasons below, this court affirms the Bankruptcy Court’s determination insofar as it concerns the 1987 Indenture but reverses its conclusion with regard to the TOPRS Indentures. Statement of Facts At the time of its chapter 11 filing, Enron had approximately $1 billion in debt outstanding under multiple Subordinated Indentures. For purposes of these appeals, however, the only indentures that are relevant are the TOPRS Indentures and the 1987 Indenture. The TOPRS Indentures Enron issued two series of 7.75% Subordinated Debentures due 2016 under two indentures, the first dated November 21, 1996, and the second dated January 16, 1997 (collectively the “TOPRS Indentures”). (AA Tabs 5 and 6.) Article 11 of each of the TOPRS Indentures sets forth their subordination provisions. Under Section 1101, the holders of TOPRS subordinated debt expressly agree that their right to payment is subordinate to the right of holders of “Senior Indebtedness” to be paid in full in cash or cash equivalents: The Company covenants and agrees, and each Holder of a

they challenge his interpretation of the definition of “Senior Indebtedness” under both indentures. For the reasons below, this court affirms the Bankruptcy Court’s determination insofar as it concerns the 1987 Indenture but reverses its conclusion with regard to the TOPRS Indentures. Statement of Facts At the time of its chapter 11 filing, Enron had approximately $1 billion in debt outstanding under multiple Subordinated Indentures. For purposes of these appeals, however, the only indentures that are relevant are the TOPRS Indentures and the 1987 Indenture. The TOPRS Indentures Enron issued two series of 7.75% Subordinated Debentures due 2016 under two indentures, the first dated November 21, 1996, and the second dated January 16, 1997 (collectively the “TOPRS Indentures”). (AA Tabs 5 and 6.) Article 11 of each of the TOPRS Indentures sets forth their subordination provisions. Under Section 1101, the holders of TOPRS subordinated debt expressly agree that their right to payment is subordinate to the right of holders of “Senior Indebtedness” to be paid in full in cash or cash equivalents: The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, likewise covenants and agrees, that, notwithstanding anything to the contrary contained herein, to the extent and in the manner hereinafter set forth in this Article, the indebtedness represented by the Securities and the payment of the principal of and premium, if any, and interest on each and all of the Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full in cash or cash equivalents of all Senior Indebtedness (including any interest accruing after the occurrence of an Event of Default under Section 501(4) or (5)). (AA Tabs 5 and 6 at 43.) The TOPRS Indentures define “Senior Indebtedness” to include (i) “all indebtedness of [Enron] ... evidenced by notes, debentures, bonds or other securities sold by [Enron] for money borrowed” and (ii) “all indebtedness of others of the kind described [above that are] assumed or guaranteed in any manner by [Enron].” (AA Tabs 5 and 6 at 6.) The 1987 Indenture Pursuant to an indenture, dated February 1, 1987 (the “1987 Indenture”), Enron issued the

Security, by his acceptance thereof, likewise covenants and agrees, that, notwithstanding anything to the contrary contained herein, to the extent and in the manner hereinafter set forth in this Article, the indebtedness represented by the Securities and the payment of the principal of and premium, if any, and interest on each and all of the Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full in cash or cash equivalents of all Senior Indebtedness (including any interest accruing after the occurrence of an Event of Default under Section 501(4) or (5)). (AA Tabs 5 and 6 at 43.) The TOPRS Indentures define “Senior Indebtedness” to include (i) “all indebtedness of [Enron] ... evidenced by notes, debentures, bonds or other securities sold by [Enron] for money borrowed” and (ii) “all indebtedness of others of the kind described [above that are] assumed or guaranteed in any manner by [Enron].” (AA Tabs 5 and 6 at 6.) The 1987 Indenture Pursuant to an indenture, dated February 1, 1987 (the “1987 Indenture”), Enron issued the 8.25% Senior Subordinated Debentures due 2012 and the 6.75% Senior Subordinated Debentures due 2005. (AA Tab 7.) Sections 1301 and 1302(a) of the 1987 Indenture state, in relevant part, that payment on the debentures is subordinated to the prior payment in full of all Senior Indebtedness: Section 1301. Securities Subordinated to Senior Indebtedness. The Company agrees, and each Holder of the Securities by his or her acceptance thereof likewise agrees, that the payment of all Obligations on the Securities is subordinated, to the extent and in the manner provided in this Article, to the prior payment in full of all Senior Indebtedness .... Section 1302. Company Not to Make Payments with Respect to Securities in Certain Circumstances. (a) Upon the maturity of any Senior Indebtedness by lapse of time, acceleration (unless waived) or otherwise ..., all Senior Indebtedness then due and owing shall first be paid in full, or such pay ment duly provided for in cash or in a manner satisfactory to all of the holders of such Senior Indebtedness, before any payment is made on account of

8.25% Senior Subordinated Debentures due 2012 and the 6.75% Senior Subordinated Debentures due 2005. (AA Tab 7.) Sections 1301 and 1302(a) of the 1987 Indenture state, in relevant part, that payment on the debentures is subordinated to the prior payment in full of all Senior Indebtedness: Section 1301. Securities Subordinated to Senior Indebtedness. The Company agrees, and each Holder of the Securities by his or her acceptance thereof likewise agrees, that the payment of all Obligations on the Securities is subordinated, to the extent and in the manner provided in this Article, to the prior payment in full of all Senior Indebtedness .... Section 1302. Company Not to Make Payments with Respect to Securities in Certain Circumstances. (a) Upon the maturity of any Senior Indebtedness by lapse of time, acceleration (unless waived) or otherwise ..., all Senior Indebtedness then due and owing shall first be paid in full, or such pay ment duly provided for in cash or in a manner satisfactory to all of the holders of such Senior Indebtedness, before any payment is made on account of any Obligations on the Securities .... (b) Upon the happening of any default in payment of any Senior Indebtedness, then, unless and until such default shall have been cured or waived or shall have ceased to exist, no payment shall be made by the company with respect to any Obligations on the Securities. (AA Tab 7 at 78-79.) The 1987 Indenture defines “Senior Indebtedness” as: the principal of, and premium, if any, and interest on, any indebtedness of the Company (other than the Securities and any Exchangeable Subordinated Debentures issued and to be issued pursuant to the indenture, dated as of June 1, 1983 ...) outstanding at any time ... except indebtedness which by its terms is not superior in right of payment to the Securities. (AA Tab 7 at 8.) The definition, however, expressly excludes “indebtedness of the Company to a Subsidiary for money borrowed or advanced from such Subsidiary.” (Id.) The 1987 Indenture, in turn, defines “Subsidiary” as: a corporation all of the voting shares (that is, shares entitled to vote for the election of directors, but excluding shares

any Obligations on the Securities .... (b) Upon the happening of any default in payment of any Senior Indebtedness, then, unless and until such default shall have been cured or waived or shall have ceased to exist, no payment shall be made by the company with respect to any Obligations on the Securities. (AA Tab 7 at 78-79.) The 1987 Indenture defines “Senior Indebtedness” as: the principal of, and premium, if any, and interest on, any indebtedness of the Company (other than the Securities and any Exchangeable Subordinated Debentures issued and to be issued pursuant to the indenture, dated as of June 1, 1983 ...) outstanding at any time ... except indebtedness which by its terms is not superior in right of payment to the Securities. (AA Tab 7 at 8.) The definition, however, expressly excludes “indebtedness of the Company to a Subsidiary for money borrowed or advanced from such Subsidiary.” (Id.) The 1987 Indenture, in turn, defines “Subsidiary” as: a corporation all of the voting shares (that is, shares entitled to vote for the election of directors, but excluding shares entitled so to vote only upon the happening of some contingency unless such contingency shall have occurred) of which shall be owned by the Company or by one or more Subsidiaries or by the Company and one or more Subsidiaries. (AA Tab 7 at 9.) Appellants’ Relevant Schedule S Claims The appellants hold claims against Enron arising from certain transactions with Enron, Enron North America Corp. (“ENA”) and Enron Power Marketing, Inc. (“EPMI”) that are typically referred to collectively as the Choctaw/Zephyrus Transactions. As set forth in detail in Proof of Claim No. 11132 (the “Cherokee Claim”), which was filed against Enron by JPMC in the name of Cherokee V.O.F. (“Cherokee”), as part of the Choctaw transactions, ENA issued a promissory note, dated November 1, 2001, to Cherokee in the amount of up to $820 million, plus interest. (AA Tab 12 at 4.) Enron guaranteed to Cherokee all of ENA’s obligations under the promissory note. (Id.) Under the terms of a settlement approved by the Bankruptcy Court on or about May 28, 2004 (the “Choctaw/Zephyrus Settlement”), the Cherokee Claim was

entitled so to vote only upon the happening of some contingency unless such contingency shall have occurred) of which shall be owned by the Company or by one or more Subsidiaries or by the Company and one or more Subsidiaries. (AA Tab 7 at 9.) Appellants’ Relevant Schedule S Claims The appellants hold claims against Enron arising from certain transactions with Enron, Enron North America Corp. (“ENA”) and Enron Power Marketing, Inc. (“EPMI”) that are typically referred to collectively as the Choctaw/Zephyrus Transactions. As set forth in detail in Proof of Claim No. 11132 (the “Cherokee Claim”), which was filed against Enron by JPMC in the name of Cherokee V.O.F. (“Cherokee”), as part of the Choctaw transactions, ENA issued a promissory note, dated November 1, 2001, to Cherokee in the amount of up to $820 million, plus interest. (AA Tab 12 at 4.) Enron guaranteed to Cherokee all of ENA’s obligations under the promissory note. (Id.) Under the terms of a settlement approved by the Bankruptcy Court on or about May 28, 2004 (the “Choctaw/Zephyrus Settlement”), the Cherokee Claim was allowed against Enron in the amount of $796.5 million and assigned by Cherokee to JPMC as agent for the Choctaw lenders. (AA Tab 14 at 10.) As set forth in detail in Proof of Claim No. 11126 (the “EFP Claims”), which was filed against Enron by JPMC in the name of Enron Finance Partners, LLC (“EFP”), as part of the Zephyrus transactions, ENA issued a promissory note, dated November 1, 2001, in favor of EFP in an amount of up to $508 million, plus interest (the “ENA/EFP Note”). (AA Tab 9 at 5.) Enron guaranteed to EFP all of ENA’s obligations under the ENA/EFP Note. (Id.) In addition, Enron issued a promissory note, dated as of November 21, 2000 (the “ECIC Demand Note”), in the amount of $125 million, to Enron Capital Investments Corp. (“ECIC”), which ECIC then assigned to EFP. (Id. at 4.) As of the Petition Date, Enron and certain of its affiliates owned EFP’s Class A and Class B equity interests while Zephyrus Investments, LLC (“Zephyrus”), an entity wholly unrelated to Enron, owned of

allowed against Enron in the amount of $796.5 million and assigned by Cherokee to JPMC as agent for the Choctaw lenders. (AA Tab 14 at 10.) As set forth in detail in Proof of Claim No. 11126 (the “EFP Claims”), which was filed against Enron by JPMC in the name of Enron Finance Partners, LLC (“EFP”), as part of the Zephyrus transactions, ENA issued a promissory note, dated November 1, 2001, in favor of EFP in an amount of up to $508 million, plus interest (the “ENA/EFP Note”). (AA Tab 9 at 5.) Enron guaranteed to EFP all of ENA’s obligations under the ENA/EFP Note. (Id.) In addition, Enron issued a promissory note, dated as of November 21, 2000 (the “ECIC Demand Note”), in the amount of $125 million, to Enron Capital Investments Corp. (“ECIC”), which ECIC then assigned to EFP. (Id. at 4.) As of the Petition Date, Enron and certain of its affiliates owned EFP’s Class A and Class B equity interests while Zephyrus Investments, LLC (“Zephyrus”), an entity wholly unrelated to Enron, owned of all of EFP’s Class C interests. (AA Tab 13 at 9-10.) Under the Third Amended and Restated Limited Liability Agreement of Enron Finance Partners, LLC (the “EFP Agreement”), management of EFP was ordinarily within the control of the Class A holders. (AA Tab 8 at 47.) However, upon the occurrence of a “Specified Event,” the Class C holders were authorized to appoint two directors to a three member board of directors entitled to manage EFP. (Id.) It is not disputed that certain downgrades of Enron’s credit ratings before the Petition Date constituted such a Specified Event and gave Zephyrus, as the Class C holder, voting control of EFP. In re Enron Creditors Recovery Corp., 370 B.R. 64, 76 (Bankr.S.D.N.Y.2007). Under the terms of the Choctaw/Zephyrus Settlement, the EFP Claims were allowed against Enron in the aggregate amount of $415.5 million, and were assigned by EFP to JPMC as agent for the Zephyrus Lenders. (AA Tab 14 at 10-11.) The Composition of Schedule S and the Resulting Litigation On December 2, 2001 and periodically thereafter, the Debtors filed voluntary

all of EFP’s Class C interests. (AA Tab 13 at 9-10.) Under the Third Amended and Restated Limited Liability Agreement of Enron Finance Partners, LLC (the “EFP Agreement”), management of EFP was ordinarily within the control of the Class A holders. (AA Tab 8 at 47.) However, upon the occurrence of a “Specified Event,” the Class C holders were authorized to appoint two directors to a three member board of directors entitled to manage EFP. (Id.) It is not disputed that certain downgrades of Enron’s credit ratings before the Petition Date constituted such a Specified Event and gave Zephyrus, as the Class C holder, voting control of EFP. In re Enron Creditors Recovery Corp., 370 B.R. 64, 76 (Bankr.S.D.N.Y.2007). Under the terms of the Choctaw/Zephyrus Settlement, the EFP Claims were allowed against Enron in the aggregate amount of $415.5 million, and were assigned by EFP to JPMC as agent for the Zephyrus Lenders. (AA Tab 14 at 10-11.) The Composition of Schedule S and the Resulting Litigation On December 2, 2001 and periodically thereafter, the Debtors filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”) in the Bankruptcy Court. The Debtors filed their Supplemental Modified Fifth Amended Joint Plan of Affiliated Debtors (the “Plan”), which was confirmed by the Bankruptcy Court by order dated July 15, 2004 (the “Confirmation Order”). As required by Section 510(a) of the Bankruptcy Code, the Plan enforces the terms of the subordination agreements contained in, among others, the TOPRS Indentures and the 1987 Indenture. 11 U.S.C. § 510(a). Accordingly, Sections 8.1 and 9.1 of the Plan provide that the distributions that would otherwise be made to holders of subordinated debt will be made instead to holders of “Senior Indebtedness,” as defined in the Subordinated Indentures (and excerpted in Exhibit L to the Plan). (AA Tab 16.) Pursuant to the Plan and the Confirmation Order, before making initial distributions under the Plan, the Debtors were required to analyze the Subordinated Indentures and file a final Schedule S identifying the categories of claims qualifying as “Senior

petitions for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”) in the Bankruptcy Court. The Debtors filed their Supplemental Modified Fifth Amended Joint Plan of Affiliated Debtors (the “Plan”), which was confirmed by the Bankruptcy Court by order dated July 15, 2004 (the “Confirmation Order”). As required by Section 510(a) of the Bankruptcy Code, the Plan enforces the terms of the subordination agreements contained in, among others, the TOPRS Indentures and the 1987 Indenture. 11 U.S.C. § 510(a). Accordingly, Sections 8.1 and 9.1 of the Plan provide that the distributions that would otherwise be made to holders of subordinated debt will be made instead to holders of “Senior Indebtedness,” as defined in the Subordinated Indentures (and excerpted in Exhibit L to the Plan). (AA Tab 16.) Pursuant to the Plan and the Confirmation Order, before making initial distributions under the Plan, the Debtors were required to analyze the Subordinated Indentures and file a final Schedule S identifying the categories of claims qualifying as “Senior Indebtedness” under each Subordinated Indenture. (AA Tab 17 at ¶ 74.) Subsequently, the Bankruptcy Court gave the Debtors until August 1, 2005 to file any modifications or amendments to Schedule S. (AA Tab 18.) By notice of presentment, dated July 29, 2005, the Debtors submitted a form of order attaching an amended Schedule S (“Amended Schedule S”) for approval by the Bankruptcy Court. (AA Tab 19.) Amended Schedule S identified the Cherokee Claim and the EFP Claims as “Senior Indebtedness” entitled to the benefits of subordination under the TOPRS Indentures and 1987 Indenture (as well as other Subordinated Indentures not relevant here). The only objection to Amended Schedule S was filed by appellees Baupost/Abrams, who were also holders of other senior claims listed on Amended Schedule S. (AA Tab 20.) Baupost/Abrams objected to the inclusion of certain specific claims on Amended Schedule S, including the Cherokee and EFP Claims, which Bau-post/Abrams incorrectly described as “in-tercompany” claims. (AA Tab 20 at 10.) The Bankruptcy Court’s Decision The Baupost/Abrams Objection was litigated in the Bankruptcy Court, and on May 29, 2007,

Indebtedness” under each Subordinated Indenture. (AA Tab 17 at ¶ 74.) Subsequently, the Bankruptcy Court gave the Debtors until August 1, 2005 to file any modifications or amendments to Schedule S. (AA Tab 18.) By notice of presentment, dated July 29, 2005, the Debtors submitted a form of order attaching an amended Schedule S (“Amended Schedule S”) for approval by the Bankruptcy Court. (AA Tab 19.) Amended Schedule S identified the Cherokee Claim and the EFP Claims as “Senior Indebtedness” entitled to the benefits of subordination under the TOPRS Indentures and 1987 Indenture (as well as other Subordinated Indentures not relevant here). The only objection to Amended Schedule S was filed by appellees Baupost/Abrams, who were also holders of other senior claims listed on Amended Schedule S. (AA Tab 20.) Baupost/Abrams objected to the inclusion of certain specific claims on Amended Schedule S, including the Cherokee and EFP Claims, which Bau-post/Abrams incorrectly described as “in-tercompany” claims. (AA Tab 20 at 10.) The Bankruptcy Court’s Decision The Baupost/Abrams Objection was litigated in the Bankruptcy Court, and on May 29, 2007, the Bankruptcy Court issued the Opinion granting the Bau-post/Abrams Objection in part and denying it in part. With respect to the issues relevant to this appeal, the Bankruptcy Court concluded that the Cherokee and EFP Claims were not entitled to the benefits of subordination under the TOPRS Indentures. The TOPRS Indentures, it noted, defined “Senior Indebtedness,” as “all indebtedness of [Enron] ... evidenced by notes, debentures, bonds or other securities sold by [Enron] for money borrowed” as well as indebtedness of others of a similar kind that are assumed or guaranteed in any manner by Enron. Enron, 370 B.R. at 77-78. Interpreting this definition, the Bankruptcy Court held that the noun “notes” was modified by the last clause of the sentence, “sold for money borrowed.” Id. at 79. Thus, under the Bankruptcy Court’s construction, to constitute “Senior Indebtedness,” “notes” evidencing Enron’s indebtedness (and the guarantee claims backed by such notes) must have been “sold,” rather than issued, “for money borrowed.” Id. Because the Bankruptcy Court concluded that the promissory notes underlying the Cherokee and EFP

the Bankruptcy Court issued the Opinion granting the Bau-post/Abrams Objection in part and denying it in part. With respect to the issues relevant to this appeal, the Bankruptcy Court concluded that the Cherokee and EFP Claims were not entitled to the benefits of subordination under the TOPRS Indentures. The TOPRS Indentures, it noted, defined “Senior Indebtedness,” as “all indebtedness of [Enron] ... evidenced by notes, debentures, bonds or other securities sold by [Enron] for money borrowed” as well as indebtedness of others of a similar kind that are assumed or guaranteed in any manner by Enron. Enron, 370 B.R. at 77-78. Interpreting this definition, the Bankruptcy Court held that the noun “notes” was modified by the last clause of the sentence, “sold for money borrowed.” Id. at 79. Thus, under the Bankruptcy Court’s construction, to constitute “Senior Indebtedness,” “notes” evidencing Enron’s indebtedness (and the guarantee claims backed by such notes) must have been “sold,” rather than issued, “for money borrowed.” Id. Because the Bankruptcy Court concluded that the promissory notes underlying the Cherokee and EFP Claims were not “sold for money borrowed,” it held that those claims were not “Senior Indebtedness” and therefore not entitled to the benefits of subordination under the TOPRS Indentures. Id. at 80. In reaching this conclusion concerning the definition of “Senior Indebtedness” under the TOPRS Indentures, the Bankruptcy Court expressly declined to apply a rule of contract construction called the “rule of the last antecedent,” under which, the appellants argued, the clause “sold for money borrowed” would apply only to the antecedent immediately preceding it in the definition (i.e., “securities”) and not to all other nouns in the sentence. Id. at 78. Although the Bankruptcy Court conceded that the appellants’ “application of the last antecedent rule is consistent with the [Bankruptcy] Court’s view of the rule,” it nonetheless concluded that the rule was not applicable to the TOPRS Indentures because the word “other” preceded the word “securities” in the definitional phrase. Id. at 78-79. The Bankruptcy Court recognized that the construction it adopted — that to qualify as “Senior Indebtedness,” “notes” had to be “sold for money

Claims were not “sold for money borrowed,” it held that those claims were not “Senior Indebtedness” and therefore not entitled to the benefits of subordination under the TOPRS Indentures. Id. at 80. In reaching this conclusion concerning the definition of “Senior Indebtedness” under the TOPRS Indentures, the Bankruptcy Court expressly declined to apply a rule of contract construction called the “rule of the last antecedent,” under which, the appellants argued, the clause “sold for money borrowed” would apply only to the antecedent immediately preceding it in the definition (i.e., “securities”) and not to all other nouns in the sentence. Id. at 78. Although the Bankruptcy Court conceded that the appellants’ “application of the last antecedent rule is consistent with the [Bankruptcy] Court’s view of the rule,” it nonetheless concluded that the rule was not applicable to the TOPRS Indentures because the word “other” preceded the word “securities” in the definitional phrase. Id. at 78-79. The Bankruptcy Court recognized that the construction it adopted — that to qualify as “Senior Indebtedness,” “notes” had to be “sold for money borrowed” — was unusual. Id. at 80-81. Indeed, the Bankruptcy Court acknowledged that its interpretation would exclude virtually all bank debt and other debt that is “issued” from the definition of “Senior Indebtedness” under the TOPRS Indentures — a result it acknowledged was not common, id. at 80-81 & n. 8, and one that no party-in-interest had ever suggested. The Bankruptcy Court also held that the EFP Claims were not entitled to the benefits of subordination under the 1987 Indenture. Id. at 72-77. The 1987 Indenture, it held, expressly excludes from the definition of “Senior Indebtedness” “indebtedness of [Enron] to a Subsidiary for money borrowed or advanced from such Subsidiary.” Id. at 73. Under the 1987 Indenture, a “Subsidiary” is defined as a “corporation” all of whose voting shares are owned directly or indirectly by Enron and/or its affiliates. Id. at 74. Although Enron, as a Class A member of EFP, generally had the right to appoint and remove directors, upon a default, the Class C interests — which were held by Zephyrus (an entity controlled