*1 “рure- was plaintiff actions FERC’s individual, MOLSKI, an Jarek that, though the and even ly speculative” Plaintiff, plant hydroelectric relicensing interests, plaintiffs affect “might” that value certain” “far from was Enforcement, Disability Rights Edu rights fishing water and plaintiffs Help Helping cation, You Services: actions). by FERC’s be diminished public Others, benefit a California Regu- of the CAT publication Accordingly, Plaintiff-Appellant, corporation, Register provided the Federal in lations process that due the notice Petitioner v. (rejecting the at 588 id.
requirеd. See AND VINEYARD FOLEY ESTATES in the publication contention that plaintiffs WINERY, LLC, limited a California no- inadequate provided Register Federal Defendant-Appel liability company, required). notice was that actual tice and lee. Petitioner also To the extent individual, Plaintiff, Molski, an Jarek Federal in the publication claims law,” see “insufficient was Register fails be 1507,3 argument U.S.C. Enforcement, Disability Rights Edu independent no government had cause Help cation, Helping You Services: by a different notice duty provide
legal public Others, benefit a California F.3d at 1145 method, Camp, see Plaintiff-Appellee, corporation, by publication (holding that notice v. BLM in law” because “insufficient Vineyard Winery, Estates duty” pro legal “independent had an liability LLC, limited a California Camp under then- notice to personal vide Defendant-Appellant. company, Petitioner regulations). federal applicable in the Federal publication suggests 06-56385, Nos. 06-56418. simply in law” be “insufficient Register Appeals, States United Court methods of are more effеctive there cause Circuit. Ninth burden particularly that are not notice among of notice some, as circulation such April 2008. Argued Submitted availabili But the population. prison July Filed notice, re ty an alternative method reasonableness, does of its gardless legal obligation. impose
itself DENIED.
PETITION FOR REVIEW of the document give the contents notice of part, that provides, in relevant 3. Section 1507 by it.” 44 subject Federal to or affected "filing person [in of a document ..., added). notice Register] except (еmphasis in cases where law, is sufficient publication is insufficient *2 (“Fo- Vineyard Winery ley Estates gazebo on a began providing services ley”) barred “big bell” where individuals wine-tasting ring could room *3 Jarek Molski service. Enforcement, Education, Sendees Rights (“DREES”) injunctive re- Foley sued for barri- damages physical to redress lief and accessibility. The dis- ers to wheelchair barrier removal within trict court ordered that it would building, but determined an ac- to make not be affirm ramp to the entrance. We cessible requiring injunction for thе building and we remand within apply to 28 C.F.R. 36.405 district court Act Americans with Disabilities and the Buildings and Accessibility Guidelines Facilities, §A 4.1.7 app. 4.1.7”) (“ADAAG § “§ when eval- 4.1.7” or ramp uating whether readily achievable. Franko- E. and Thomas M. Adams Julia AND PROCEDURAL FACTUAL E. Franko- vich, of Thomas Law Offices BACKGROUND CA, Francisco, plaintiff- for the vich, San 18, 2003, vis- Jarek Molski1 January On appellant. his Winery with Foley Estates ited the Bur- R. Snyder Sean Barry Clifford attending a wine- While grandmother. Barbara, CA, for nett, Law, Santa Snyder multiple phys- tasting, encountered Molski defendant-appellee. entry his wheelchаir. to with ical barriers Sarantschin, accessibility expert, Rick An of the investigation rosa a sub conducted Sarantsch- on October 2003. property of barriers the existence in confirmed slope with a entry including ramp a PREGERSON, D.W. Before: HARRY 20%; a raised 6% and varies between NELSON, F. and FERDINAND 4.5"; a round door measuring threshold FERNANDEZ, Judges. Circuit 30"; an- only knob; door width a rear 31.25"; and a wine- NELSON, Judge: width Circuit other door Senior D.W. Molski height of 42". Jarek tasting counter en- paraplegic a This case involves Foley on suit against DREES filed ac- discriminatory barriеrs countered 22, 2003. December his winery a he cess when visited litigation, commencement Prior barri- Unwilling to remove grandmother. $23,994 renovations room, Fo- undertook wine-tasting to the historic ers of individuals advocates on behalf a paraplegic requires Molski is 1. Jarek mobility. Molski is member wheelchair disabilities. DREES, membership organiza- nonprofit all provide services on wheelchair-acces- AND JURISDICTION STANDARD gazebo. Renovations included an sible ac- OF REVIEW parking cessible lot and a DREES filed underlying action for “big Nearly bеll” to summon service. violations of the Americans with Disabili- years proceedings, two into the court ties Act 12101-12300, §§ 42 U.S.C. County Barbara Historic Santa Land- in federal court pursuant 28 U.S.C. Advisory marks Commission declared Fo- jurisdiction 1331. We exercise over the ley Estates a “Place of Historical Merit” appeal pursuant to 28 U.S.C. by way of resolution No. 2005-01. interpretation “The of [the ADA] trial, At the court heard testimo- *4 is a subject of law to de novo ny regarding proposed methods of barrier review.” Sacramento, Barden v. City of removal and associated costs. The court (9th 1073, Cir.2002). 292 F.3d 1075 We testimony also heard from Foley’s archi- also review the district court’s allocation historian, opined tectural that an ac- the burden proof Ferrari, de novo. cess would impact have severe on Alvarez, Olsen & Ottoboni v. Home Ins. the historical nature of the cottage. The Co., (9th Cir.1991). 940 F.2d 555 We judge determined would cost review the court’s decision whether $34,074to construct an access ramp to the grant equitable relief under the ADA for rear of the building, and it would cost an abuse of discretion. Bird v. Lewis & $5,130 to remove all physical access barri- Coll., (9th Clark 303 F.3d 1020 Cir. ers inside the building. judge The found 2002). that removal of interior barriers would be
readily achievable, but removal of exterior DISCUSSION barriers would not readily I. EXTERIOR RAMP because it would threaten architectural A. APPLICABLE property. of the In reaching REGULATIONS this finding, judge held that 28 C.F.R. appeal, On we are asked to decide § § 36.405 and ADAAG 4.1.7 do not apply § whether 28 C.F.R. 36.405 and ADAAG to barrier removal existing facilities. § 4.1.7 apply to barrier removal in existing Thus, the judge allocated the burden of By terms, facilities. their regula- these production to plaintiff to show that the apply “alterations;” tions however, proposed alteration not threaten the § C.F.R. extends their appli- of the building. The cation to readily achievable barrier remov- trial judge a permanent injunction issued al in existing Despite facilities. this regu- requiring barrier removal inside the cot- latory directive, the declined tage. § to apply § 4.1.7. We reverse and remand.
DREES timely appeals the district court’s findings regarding the applicability analysis Our begins with 28 C.F.R. § 28 C.F.R. 4.1.7, § 36.405 and ADAAG 36.304, § which regulates barrier removal achievability of constructing existing public facilities accommoda- ramp. Foley cross-appeals tion. That section requires public “[a] ac- and challenges permanent injunction commodation [to] remove architectural requiring removal of physical interior bar- barriers in existing facilities ... where riers. such readily removal is achievable.”2 28 2. The ADAdefines achievable as “easi- difficulty without much expense.” ly accomplishable and able to be carried out 4.1.7(2)(b) 36.405, § 36.304(a). goes incorporates which regulation The C.F.R. that, procedure taken to for businesses to provides “measures specify on to require- removal requirements the barrier alternative for historic comply with seek comply with this section shall ments of properties. for alterations requirements
applicable pre- reading Our of 28 C.F.R. 36.304 §§ 36.404-36.406....” 36.402 leniency existing serves the allocated to added). 36.304(d)(1) (emphasis III facilities under Title of the Americans regu- additional under those compliance If only Disabilities Act. The ADA re- achievable, “a not be lations would existing barrier removal in facilities quires may take other accommodation public “where such removal achiev- to remove the readily achievable measures 12182(b)(2)(A)(iv). able.” fully comply that do integrates “readily Section 36.304 specified requirements.” 36.304(a) standard into both achievable” 36.304(d)(2). 36.304(a) en- Section case, regula look to the In this only readily achievable barrier sures because governing tions triggers incorporation *5 Land County Historic the Santa Barbara 36.304(d)(2) 4.1.7, § § § 36.405 and Advisory designated marks Commission compli- if full partial compliance allows for place of local historic building the would not be regulations ance with those plain language, its Through merit. readily Thus 28 C.F.R. achievable. 36.304(d)(1) § directs vendors § § 4.1.7 § 36.405 and incorporates 36.304 § when 36.4053 comply with 28 C.F.R. framework, achievability ready into the readily accommoda making the flexible standard reserved and retains requirеs qualified tions. 36.405 Section existing facilities. maxi “comply to the proce- § Additionally, 4.1.7 establishes feasible with [ADAAG mum extent determining whether barrier re- dure for 36.405(a). § Under § 28 C.F.R. 4.1.7].” facilities will be existing moval in 4.1.7, the al entity undertaking § “if the ADA Title According to the achievable. -withthe compliance that terations believes (“ADA Manual III Technical Assistance de ... would threaten or requirements Manual”) III-4.4200, § “[b]arrier significance of the build stroy the historic ‘readily achiev- considered would not be entity should consult with the ing ... destroy or if it would threaten аble’ Preservation Officer.” State Historic facility building of a or 4.1.7(2)(b). His § “If the State ADAAG under designated ... as historic that com agrees toric Preservation Officer in law.” The standard set State or local accessibility requirements pliance with the ready § to the standard 4.1.7 is identical (exterior and interi- for accessible routes ADA achievability proffered by the Manu- or), entrances or toilets would ramps, language similarity between the al. This signifi destroy the historical threaten or § con- of 4.1.7 is suggests application facility, the alter building or cance of the existing his- the standard 41.7(3) sistent with may requirements native Therefore, procedure toric facilities. reading, 28 C.F.R. Id. Under our used.” may be used to deter- forth in 4.1.7 requires set compliance 36.405(a) applies "facilities that 12181(9). in- 3. Section Factors to consider Register eligible listing the National project, are the costs of the the resources clude designated as ... are Places facility entity, of the of Historic and the nature Id. State or local law.” operations. histоric under entity and its mine what is achievable in canee of existing ... entity should historic facilities. consult with the State Historic Preserva- Although Officer.” this clause uses reasons, foregoing For the we find permissive language, it upon par- calls erred when it re ty who believes compliance apply 36.405 fused 4.1.7 to threaten the historical significance of the removal in exist building to appropriate consult agency. ing acknowledge facilities. We that three It place does not that burden on party courts have considered signifi historical advocating for Thus, remedial measures. determining cance as factor for 4.1.7(2)(b) language counsels in achievability invoking without favor placing production burden of However, 36.405 or ADAAG 4.1.7.4 we upon the defendant. find explicit regulatory language to be By placing the production burden of on more persuasive than the absence of dis defendant, place the burden on the regulations cussion of these in our sister party with the best access to information Therеfore, circuits. we remand to the dis regarding the historical of the apply § trict court to 4.1.7 building. The defendant sought the his- when determining whether an exterior torical designation in this case. would be achievable. possesses defendant the best understand- ing of the circumstances under which that B. BURDEN OF PRODUCTION designation might be threatened. The de- trial, At judge relied on Colora fendant is also in position the best to dis- do Cross Coalition v. Herman cuss the matter Santa Barbara *6 Family son Ltd. to find that DREES bore County Historic Advisory Landmarks the produсtion initial burden of for the Commission and request to an opinion on ready of achievability. See 264 proposed methods of barrier removal. As (10th 999, Cir.2001). F.3d As noted result, a the defendant is a posi- better above, Colorado Cross failed to address introduce, tion to part of its affirmative § § 36.405 and 4.1.7. This omission tainted defense, detailed and evidence testi- inquiry the into who bears the burden of mony concerning whether the sig- production for the achievability of nificance of a structure would be threat- barrier removal historic facilities. We ened or destroyed by proposed the reverse and remand because we find that plan. removal § 4.1.7 counsels placing in favor of the As the dissent reasoned in Colorado burden production of on the defendant. Cross, plaintiffs “[i]f must all but present begin by We looking to the court with pre-approved a construction § 4.1.7 to allocate the burden of produc- contract for a sum certain which includes 4.1.7(2)(b), tion. Under “if the entity plans, detailed impact statements, engi- undertаking alterations believes that com- neering studies, permits and to meet their pliance with the requirements ... would burden, threshold virtually plaintiff no destroy threaten or the signifi- could afford to an bring architectural bar- In, Gathright-Dietrich Landmarks, v. Atlanta determining ready factor for achievability Inc., 1269, (11th Cir.2006), 452 F.3d invoking without 28 C.F.R. 36.405 or Colorado Cross Coalition v. Her ADAAG Notably, 4.1.7. none of these cases Ltd., Family (10th manson 264 F.3d rejects application of 28 C.F.R. 36.405 Cir.2001), NationsBank, Speciner N.A., v. 4.1.7; they ADAAG simply proceed 215 F.Supp.2d (D.Md.2002), courts analyzing without those authoritiеs. have considered historical as a however, significant a poses 42 U.S.C. under claim removal rier with safety individuals of Cross, health 12182(b)(2)(A)(iv).” Colorado or others. disabilities (Lucero, J., dissenting). We at 1011 F.3d un- to plaintiff an ADA require not need Congress measures. heroic such partial
dertake
accommodation
provision
actors, i.e.,
indi-
disabled
private
on
is not
relies
accommodation
complete
wherever
filing law-
by
ADA
viduals,
enforce the
to
on
Foley relies
readily achievable.
be de-
should
plaintiffs
Thus
suits.
accommodations
against partial
caution
an
claims
meritorious
filing
from
to health
significant
terred
risk
they pose a
where
of
of the burden
allocation
inappropriate
accommo-
partial
safety.
find
We
case.
production.
in this
appropriate
dation
4.1.7,
First,
expressly
of
language
that the
findWe
ramp
a
information,
may provide
the congression-
venue
that a
plates
to
access
placing
of
support
provision
The
steeper slope.
the ADA
intеnt behind
facility
not excuse
on
defendant.
does
production
burden
such
the dis-
making readily
and remand
otherwise
we reverse
from
extent
produc-
the maximum
burden
to
assign
to
accommodations
trict
Therefore,
the issue
the fact that there
on
the defendant
feasible.
slope also
steeper
threaten
would
existing ramp
whether barrier
building.
making
facility
not excuse
historical
does
to the
accommodations
INTERIOR
REMOVE
TO
II. DUTY
Second,
in-
feasible.
extent
maximum
BARRIERS
of indi-
entry
group
accessibility of
one
retаining barriers
justify
does not
re
viduals
court ordered
the district
When
building for all others
building,
access inside
interior barriers
moval
entry. Where
safely gain
may
probabili
enhanced
arguably
the court
achievable,
interior of
at
with disabilities
persons
ty that
may
all who
be made
ramp must
non-compliant
tempt
traverse
*7
Foley argues
enter.
building.
access the
respon
winery of
the
its
absolve
we should
removing
argues that
Foley
because
interior barriers
sibility to remove
might tempt
building
the
interior of
the
non-compliant.
is
existing ramp
only
ramp
a
traverse
with disabilities
people
and affirm
argument
reject
this
We
at
steeper
percent
nearly twelve
is
injunction requiring
court’s
district
recommend.
ADA Guidelines
than
points
building.
removal inside
impli-
Foley,
temptation
this
According to
because
posi-
support for their
cates
find
parties
Both
the health
36.304(d)(2).
risk to
significant
Accord-
a
“poses
C.F.R.
tions
disabilities.”
safety of individuals
regulation:
ing to this
consideration,
rec-
weighing this
When
remove
required to
...
measures
If
population
diversity in the
ognize
achiev-
be
would not
a barrier
might seek
with disabilities
take
may
persons
able,
accommodation
public
a
canes, walk-
using
People
ramp.
this
to re-
use
measures
other
often
can
chairs
ers, braces,
powered
fully com-
do
move the barrier
using
people
than
ramp
steeper
navigate
requirements.
specified
ply with
vary with
chairs,
risks
safety
so
include,
example, manual
Such measures
adaptive
disability and
nature of
steeper
providing
only evidence
Notably,
takеn,
equipment.
shall be
No measure
slope....
Foley cites to support
theory
its
of a
access the interior of the wine-tasting
health
safety
risk is the pleading of a
room.
gazebo
The
places those who could
manual wheelchair user who complained of otherwise access the wine-tasting room at
upper
trauma to his
a disadvantage
extremities. Al-
the ADA seeks to
though
ramp allegedly
injury
caused
remove.
the Gazebo is not an ap-
Molski,
Jarek
the ramp might
propriate
not cause
alternative accommodation.
injury to people using different adaptive CONCLUSION
equipment. Because
possi-
safe access is
We REVERSE and REMAND for the
ble
many persons
who might need or
court to apply
4.1.7
use
ramp,
the district court did not
place the
production
burden of
abuse its discretion by ordering readily
defendant. Additionally, we AFFIRM the
achievable accommodations to the interior
district court’s permanent
injunction re-
of the wine-tasting room.
quiring removal of interior barriers
wheelchair access.
ALTERNATIVE GAZEBO
REVERSED AND REMANDED IN
Foley argues that the provision of
PART AND AFFIRMED IN PART.
all relevant services on the wheelchair-
gazebo
legally adequate
FERNANDEZ,
Judge,
Circuit
a means of barrier removal.
reject
We
concurring and dissenting:
this argument and affirm the district
I concur in
majority’s
determination
imposition
court’s
that the district court did not err when it
barrier removal inside
building.
required Foley
Vineyard
Estates
and Win-
As a
matter,
threshold
a facility may
LLC,
ery,
to make changes to the interior
only substitute alternatives to barrier re-
of its building pursuаnt to the Americans
moval
“as a
where
result
compliance
Act,
with Disabilities
U.S.C.
12181-
with the
requirements
alterations
specified
(“ADA”).
However, I dissent from
(d)(1)
in paragraph
section,
of this
the majority’s reversal of the district
required
measures
to remove a barrier
court’s order denying a demand that Foley
would not
achievable.” 28 make the proposed exterior changes.
above,
As noted
It
important
to note that this is not a
district court did not abuse its discretion in
Foley
case where
sought to construct a
determining that barrier
removal inside
facility.
12183(a)(1).
new
See was readily achievable.
In
Nor is it a
case where
sought to
light of
holding,
this
no alternative accom-
facility.
alter
old
12183(a)(2).
See id.
supplant
modations can
legally
re-
*8
is, instead,
It
a case
where
was not
quired barrier removal.
seeking to
any
make
change, but Disability
Although we find
gazebo
inadequate Rights Enforcement Education Services:
for those who could otherwise access the
(hereafter
You
Helping
Help Others
“Dis-
room,
wine-tasting
gazebo provides
an
ability Rights”) demanded
changes
that
be
important avenue of participation for those made because the failure to do so would be
who cannot traverse the steps or ramp to
discriminatory.
See
id.
the wine-tasting room. We acknowledge
12182(b)(2)(A)(iv). However, a mere
Foley’s efforts to serve this community;
failure to
an
remove
architectural barrier
however, these efforts do not change Fo-
discriminatory only “where such remov-
ley’s obligation to
readily
make
аvailable
readily
is
achievable.”
In
Id.
other
changes to enable the maximum partic- words, the mere existence of the barrier
ipation possible for those who are able to
bespeak
does not
wrongdoing; it only be-
is a Craftsman house
can be
removal
wrongful if
comes
of
designated as
Place
has been
which
achieved.
Barbara
the Santa
by
Merit
Historic
is
removal
Barrier
Commission.
County
Landmark
Historic
able
accomplishable
“easily
it is
when
Nobody
that.
doubts
difficulty or
much
out without
to be carried
examining
of
method
proper
12181(9).
When that
That definition
Id.
expense.”
used, it
is
court’s determination
imposes
It
extremely important.
is
did not
court
that the district
apparent
upon owners
is
stringent standard
much less
when,
record
on the
based
clearly err1
imposed
that
than
existing properties
of
that
it,
determined
the court
before
new construc-
undertake
who
upon owners
Disability Rights
suggested
changes
show structural
required
are
tion and
destroy
would,
fact, severely impact or
violating
avoid
in оrder to
impracticability
Foley’s
of
build-
12188(a)(1).
historic
also the
It is
id.
See
the ADA.
conclusion, the court
reaching
In
that
ing.
extent
“maximum
stringent
than
less
unrebutted evidence
upon the
relied
upon owners
imposed
standard
feasible”
historian, Dr.
.
architectural
id.
facilities.
their
See
to alter
who seek
Post,
that effect
who testified
Pamela
12183(a)(2).
changes
suggested
if
that
added
“the
achievability,
determining
In
they would
previously,
made
been
had
must
needed”
of
action
nature
cost
as
of the house
designation
have made
12181(9)(A).
into
Id.
taken
account.
be
problematic.
Merit
Historic
Place of
intend-
Furthermore,
never
because
person
pre-
She,
way,
by the
is
heritage
architectural
the nation’s
ed
supported
initial report
sented
the banner
destroyed under
in the first
property
designation
consider-
accessibility, special
achievable
place.
desig-
that “are
given
ation is
the dis-
But,
Disability Rights,
argues
law.”
or local
under State
historic
nated as
to make that
permitted
was not
those,
36.405(a).
it is
trict
As
Well, Disаbility Rights
Why?
finding.
that would
changes
to avoid
important
on
regulation
fact
to the
signifi- points
the historic
destroy
or
“threaten
that when meas-
36.405(b).
states
barriers
removal
Id.
building....”
cance of
comply
taken
are
puts it: ures
of Justice
Department
As
requirements,
removal
be considered
would not
“Barrier
comply made are to
any alterations
threaten
if it
‘readily achievable’
36.405(a)
being
the element
“for
of a build- C.F.R.
destroy the
Of
as
altered.”
designated
...
facility that
ing or
aif
surprise because
course,
is no
Deр’t
law.”
or local
under State
made,
an alteration
it becomes
change is
Assis-
Justice,
Title III Technical
ADA
ac-
property
then make
ought to
Accommoda-
Covering Pub.
tance Manual:
intent of
But,
that the
to state
Facilities, § III— cessible.
Commercial
tions &
barrier removal
to make
regulation is
470f;
Nondis-
4.4200;
see also 16
altera-
voluntary
essentially the same
Disability by
Basis
crimination
*9
different con-
two
conflate those
is to
tion
in Commercial
&
Pub. Accommodations
very threshold
making the
by
35,544, 35,568-69 cepts
Facilities,
Fed.Reg.
56
the standard
the same as
removability
1991).
lens
26,
through that
It is
(July
in-
have been
That cannot
court’s
alteration.
the district
must review
that we
regulation.
tent
case because
in this
decision
Cir.2007).
832,
(9th
LLC,
Hills,
837
506 F.3d
Beverly
N. Am.
v. Meridien
1. See Skaff
objection aside, however,
Leaving
production are of no import.
St.
Cf.
Disability Rights’
Mary’s
Hicks,
second step is even
Honor
v.
502,
more
Ctr.
509 U.S.
509-11,
2742,
problematic. Having
2748-49,
been
113 S.Ct.
referred to
(1993)
L.Ed.2d 407
36.405,
(holding that
should,
says
burden
Disability
shifting
“simply
presumption
drops out of
then note that
Rights,
36.405 further
picture”
party
once the
comes fоrward
36,
(hereaf-
app.
refers to 28 C.F.R. Pt.
A
evidence).
Here the district court
A”). And,
“Appendix
ter
notes Disability
received all
parties
evidence
chose
4.17(2)(b)
Rights,
Appendix
A states
put forward,
and made a finding that
when making
alterations to historic
there would be
impact
a deleterious
upon
(here
entity
Foley) “should
significance
of the property.
consult
Historic
State
Preserva-
No
needed,
more was
and the fact that
tion Officer.”
What
Rights by-
Disability Rights did
put
forth any
passes is the clear definition of “should” as
signifiсance
own,
evidence of its
in Appendix
used
A.
opposed
As
to “may”2
otherwise,
or
position.
fatal to its
“shall,”3
“should”
word
defini-
See, e.g., Gathright-Dietrich, 452
at
F.3d
“[djenotes
advisory specification
1275;
Cross,
Colorado
finding on the issue must fail.
Disability Rights questions also raises any about whether it had pro burden to Pamela HENSLEY; S. Michael M. pound a prima facie case that included an Hensley, husband wife each of element regarding effect of pro its them and their community marital posеd changes on the historic thereof, Plaintiffs-Appellees, of the property. Other courts have indi v. cated plaintiffs, Disability Rights, like See, do have that UNITED obligation. e.g., America, STATES of Gath as sub- right-Dietrich party stituted Landmarks, v. Atlanta Edward and Jane Inc., Eich, Doe (11th Defendant-Appellant. 1269, 452 F.3d 1273-75 Cir. 2006); Colo. Cross Disability Coal. v. Her No. 06-35619. Ltd., manson Family 999, 264 F.3d 1004- United States Appeals, Court of Nations-Bank, (10th Cir.2001); v. Speciner Ninth Circuit. A., (D.Md. 622, 215 F.Supp.2d N. Argued and Submitted 2002). May 2008. However, I no need see to resolve that issue in this case. The district court Filed July 2008. decided aehievability
after a trial. any shifting burdens of Appendix
2. §A 3.4. Id.