author: DeMOSS, Circuit Judge:

text:
    Victoria RIZZO, Plaintiff-Appellant, v. CHILDREN’S WORLD LEARNING CENTERS, INC., doing business as CWLC Inc., Defendant-Appellee.
    No. 95-50423.
    United States Court of Appeals, Fifth Circuit.
    May 24, 1996.

      Robert S. Thompson, Jason J. Thompson, Thompson & Thompson, San Antonio, TX, for Victoria Rizzo, plaintiff-appellant.
    Cynthia Glass Bivins, John Joseph Franco, Jr., Abel Martinez, Jenkens, Gilchrist, Groce, Locke & Hebdon, San Antonio, TX, for Children’s World Learning Centers, Inc. dba CWLC Inc., defendant-appellee.
    Before DeMOSS and DENNIS, Circuit Judges, and DUPLANTIER, District Judge.

      . District Judge for the Eastern District of Louisiana, sitting by designation.

   DeMOSS, Circuit Judge:

This Americans with Disabilities Act ease was brought by Victoria Rizzo against Children’s World Learning Centers, Inc., where she worked as a teacher’s aide. Rizzo claims that she was removed from her van driving duties at Children’s World 'because of her hearing impairment. The district court granted summary judgment in favor of Children’s World. Finding that a genuine issue of material fact exists as to whether Rizzo is a qualified individual with a disability, we reverse the district court’s summary judgment and remand for trial.

I. BACKGROUND

Rizzo began working at Children’s World as a teacher’s aide in March 1991. She had a hearing impairment that required the. use of hearing aids, which she disclosed to Children’s World on her job application. Her duties at Children’s World included assisting in the classroom, doing administrative paperwork and driving children in the Children’s World van.

In February 1993, a parent complained to Children’s World Director Myra Ryan about Rizzo being left alone with children, given her hearing impairment. The parent also expressed concern over Rizzo’s ability to drive the van safely. Director Ryan discussed the complaint with Rizzo and Rizzo admitted that she had experienced further hearing loss and was scheduled to see her doctor to determine if stronger hearing aids were necessary. Director Ryan asked Rizzo whether she could hear a child choking in the back of the van. Rizzo said that she did not know if she could hear a choking child, but she thought that it was safe for her to drive the children.

Rizzo was removed from her driving responsibilities until she could bring a report from her audiologist stating that it was safe for her to drive the van. On March 11,1993, Rizzo brought a report from her audiologist which said that she could hear emergency vehicles. However, the report did not discuss whether Rizzo could hear a child choking at the back of the van. Children’s World told Rizzo that before she could drive the van it needed that information. Rizzo said that the audiologist would have to observe her at work to make that determination and Children’s World said that this was acceptable. Nevertheless, the audiologist never observed Rizzo and no further report on her ability to hear a choking child was ever sent to Children’s World.

After Rizzo’s removal from her driving duties, she was assigned food preparation duties previously performed by Children’s World’s cook. She was asked to work a split shift (early mornings and late afternoons) and her hours were reduced. Rizzo asserts that as a result of Children’s World’s actions, she lost respect among her peers and she was shamed by having to prove that it was safe for her to drive the children.

Children’s World contends that the reason Rizzo worked a split schedule and cooked meals was that she requested that she not be placed in a classroom by herself for more than thirty minutes at a time, and that she not be placed with school age children. Therefore, their actions were a reasonable accommodation for her disability, not discriminatory acts. Children’s World further maintains that Rizzo remained a full-time employee and was not demoted.

Rizzo resigned her position with Children’s World on May 20, 1998. She then filed a complaint with the Equal Employment Opportunity Commission, which issued her a right to sue letter. Rizzo then filed suit against Children’s World in federal district court under Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101, et sec/., alleging that because of her hearing impairment she was (1) wrongfully demoted, (2) discriminated against, and (3) wrongfully perceived to be a direct threat to the health or safety of herself or others in the work place. She also alleges that Children’s World failed to make reasonable accommodation for her disability.

II. THE DISTRICT COURT OPINION

The district court applied the McDonnell Douglas Title VII burden shifting paradigm. McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Applying the McDonnell Douglas framework, the district court found that Riz-zo met her prima facie case of showing that “she was a disabled person who was ‘otherwise qualified’ to perform her job duties.” The district court found that she was “otherwise qualified” because she could, with reasonable accommodation, perform the essential functions of her position. The district court found that there was “a relatively inexpensive device [which] might have been placed in the van to amplify sounds coming from behind the driver,” thereby accommodating any disability she might have.

Because Rizzo met her prima facie ease, the district court shifted the burden to Children’s World to show a legitimate, nondiscriminatory reason for its decision to temporarily remove her from driving duties. The district court found that Children’s World met this burden because its statement that it removed Rizzo because she might not hear a choking child was a legitimate, nondiscriminatory reason.

The district court then placed the burden on Rizzo to come “forward with a genuine issue of fact as to whether Children’s World’s accommodations were discriminatory or unreasonable.” The district court found that Rizzo did not meet this burden and, thus, held that as a matter of law Children’s World did not violate the ADA.

III. STANDARD OF REVIEW

We review district court orders granting summary judgment de novo, applying the same standards as the district court. Harper v. Harris County, Texas, 21 F.3d 597, 599 (5th Cir.1994). Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).

As we recently said:

Summary judgment is proper if the mov-ant demonstrates that there is an absence of genuine issues of material fact. Such a showing entitles the movant to summary judgment as a matter of law. The movant accomplishes this by informing the court of the basis for its motion, and by identifying portions of the record which highlight the absence of genuine factual issues. Once the movant produces such evidence, the nonmovant must then direct the court’s attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial — that is, the nonmovant must come forward with evidence establishing each of the challenged elements of its case for which the nonmov-ant will bear the burden of proof at trial.
The nonmovant can satisfy its burden by tendering depositions, affidavits, and other competent evidence to buttress its claim_ Summary judgment is appropriate, therefore, if the nonmovant fails to set forth specific facts, by affidavits or otherwise, to show there is a genuine issue for trial.

Topalian v. Ehrman, 954 F.2d 1125, 1131-31 (5th Cir.1992), cert. denied, 506 U.S. 825, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992) (internal citations omitted).

When a party moves for summary judgment on an issue for which it bears the burden of proof at trial, it must demonstrate the absence of a fact issue as to that issue. Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir.1994).

IV. DISCUSSION

The district court improperly analyzed this case. This is not a circumstantial evidence case, where we apply the McDonnell Douglas burden shifting framework; rather, this is a direct evidence case. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985).

A plaintiff can prove discrimination in two ways, either “by direct evidence or by an indirect or inferential method of proof. Discrimination can be shown indirectly by following the ‘pretext’ method of proof set out in McDonnell Douglas.” Mooney v. Aramco Services, Co., 54 F.3d 1207, 1216 (5th Cir.1995) (internal citation omitted). “The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the plaintiff has his day in court despite the unavailability of direct evidence.” Trans World Airlines, 469 U.S. at 121, 105 S.Ct. at 622 (internal quotations omitted); see Mooney, 54 F.3d at 1217. “In the rare situation in which the evidence establishes that an employer openly discriminates against an individual it is not necessary to apply the mechanical formula of McDonnell Douglas to establish an inference of discrimination.” Moore v. U.S.D.A, 55 F.3d 991, 995 (5th Cir.1995); see Trans World Airlines, 469 U.S. at 121, 105 S.Ct. at 621-22 (“[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.”).

In the instant case there is direct evidence that Children’s World made an employment decision because of a disability. Children’s World does not deny that Rizzo was removed from driving duties because of her hearing impairment. Therefore, we need not engage in the McDonnell Douglas presumptions in order to infer discrimination: Children’s World admits that it discriminated. Children’s World, however, contends that it had a reason to discriminate. It argues that Rizzo’s driving of the van would pose a direct threat to the children, because she might not be able to hear if one of them were choking.

The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... [the] terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Id. § 12111(8); Daugherty v. City of El Paso, 56 F.3d 695, 696 (5th Cir.1995), cert. denied, — U.S.-, 116 S.Ct. 1263, 134 L.Ed.2d 211 (1996).

The fact that the district court incorrectly applied the law does not end our inquiry; we must still examine the record. If we find that there is no genuine issue of material fact, we will affirm the summary judgment, albeit on different grounds. Brothers v. Klevenhagen, 28 F.3d 452, 457 n. 7 (5th Cir.), cert. denied, — U.S.-, 115 S.Ct. 639, 130 L.Ed.2d 545 (1994). Therefore, we will examine the entire case to determine if there is a fact issue.

To prevail on her ADA claim, Rizzo must prove that (1) she has a disability; (2) she was qualified for the job; and (3) an adverse employment decision was made solely because of her disability. Doe v. University of Maryland Medical System Corp., 50 F.3d 1261, 1265 (4th Cir.1995); Chiari v. City of League City, 920 F.2d 311, 315 (5th Cir.1991) (Rehabilitation Act of 1973 case).

A Disability

A “disability” is “a physical or mental impairment that substantially limits one or more of the major life activities of [the] individual.” 42 U.S.C. § 12112(a). Children’s World does not contest that a hearing impairment is a disability, or that Rizzo is disabled. Therefore, summary judgment for Children’s World is inappropriate on the issue of whether Rizzo is disabled under the ADA.

B. Qualified to do the Job

Rizzo has the burden of proving that she can perform, with or without reasonable accommodation, all of the essential elements of her job. Doe, 50 F.3d at 1264; Chiari, 920 F.2d at 315. Children’s World put on summary judgment evidence showing that Rizzo is not a qualified individual with a disability, because she could not perform an essential element of the job, namely, driving the bus safely. Children’s World pointed out that Rizzo might not be able to hear a child choking in the back of the van, thus she was a direct threat to the children. Rizzo countered by bringing forth evidence showing that she possessed all required licenses to be able to drive the bus. She also presented testimony from her audiologist that she could hear emergency vehicles.

The question is not whether Rizzo could hear a choking child. There is no evidence that an essential element of the job is the ability to hear a choking child. Instead, the question is whether the person is able to safely drive the van and not present a direct threat to the children’s safety. The ADA provides that “ ‘qualification standards’ may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the work place.” 42 U.S.C. § 12113(b). The regulations define a direct threat as:

a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a “direct threat” shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.

29 C.F.R. § 1630.2(r); see School Bd. of Nassau County v. Arline, 480 U.S. 273, 287-88, 107 S.Ct. 1123, 1130-31, 94 L.Ed.2d 307 (1987) (Rehabilitation Act of 1973 case). Whether one is a direct threat is a complicated, fact intensive determination, not a question of law. To determine whether a particular individual performing a particular act poses a direct risk to others is a matter for the trier of fact to determine after weighing all of the evidence about the nature of the risk and the potential harm.

An employee who is a direct threat is not a qualified individual with a disability. As with all affirmative defenses, the employer bears the burden of proving that the employee is a direct threat. See Interpretive Guidance to 29 C.F.R. § 1630.15(b) & (c) (“With regard to safety requirements that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, an employer must demonstrate that the requirement, as applied to the individual, satisfies the ‘direct threat’ standard in section 1630.2(r) in order to show that the requirement is job related and consistent with business necessity”) (emphasis added). Therefore, to prevail on summary judgment on the direct threat issue, Children’s World must prove that Rizzo is a direct threat as a matter of law. Lindsey, 16 F.3d at 618.

We previously addressed direct threat in the driving context in Daugherty, 56 F.3d 695 (ADA case) and Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir.1993) (Rehabilitation Act of 1973 case), cert. denied, — U.S. -, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994). Both eases involved insulin dependent diabetics who were not allowed to drive city vehicles. In both eases government rules and regulations specifically prohibited insulin dependent diabetics from driving for the cities. In fact, the United States Department of Transportation regulations prohibit insulin dependent diabetics from operating large trucks or buses. 49 C.F.R. §§ 383.5, 383.23, 383.71, and 391.41 (1994); Daugherty, 56 F.3d at 697. Because the risk presented by insulin dependent drivers is so great, we have held, “as a matter of law, [that] a driver with insulin dependent diabetes ... presents a genuine substantial risk that he could injure himself or others.” Chandler, 2 F.3d at 1395.

The situation presented in the instant case is different. Children’s World has pointed us to no statute or regulation regarding hearing-impaired drivers. Texas has no requirement that its day care workers meet certain minimum hearing requirements. We do not have voluminous caselaw regarding the dangers presented by hearing impaired drivers. Cf. Chandler, 2 F.3d at 1395 (citing cases regarding dangers posed by insulin dependent diabetics). No evidence was presented regarding the ability of anyone to hear a choking child while driving a van. Children’s World only pointed out a lack of evidence on the issue of Rizzo’s ability to hear a choking child. Rizzo countered with evidence showing that it was safe for her to drive the van. Whether a person who can hear emergency vehicles, but cannot hear a choking child, is a direct threat is a question of fact. Therefore, there exists a genuine issue of material fact as to whether Rizzo is a direct threat, and thus, whether she was a qualified individual with a disability. Because there is a genuine issue of material fact, summary judgment is inappropriate.

In deciding whether Rizzo’s hearing impairment presents a direct threat, the factfin-der should of course weigh heavily the fact that Rizzo drives a van carrying small children. That any potential harm will befall children, the most vulnerable members of our society, will greatly impact the consideration of “[t]he nature and severity of the potential harm.” 29 C.F.R. § 1630.2(r). We wholeheartedly agree with the district judge’s statement that “the health and safety of the children [is Children’s World’s] primary consideration.” Our opinion should in no way be interpreted as lessening the protection offered to children. Rather, we are merely saying that, at this time, there is a genuine issue of material fact as to whether Rizzo is a direct threat, making summary judgment inappropriate.

C. Adverse Employment Decision

In addition to proving that she is a qualified individual with a disability, Rizzo must also prove that Children’s World took an adverse employment action solely because of her disability. Children’s World argues that it took no adverse employment action at all, but merely worked to accommodate Riz-zo’s disability.

Specifically, Rizzo argues that Children’s World (1) removed her from her driving duties, (2) reduced her hours, (3) forced her to work a split shift, and (4) forced her to work in the kitchen, which she found demeaning. Children’s World maintains that Rizzo remained a full-time employee and her hourly wage was never reduced. Any loss in hours was due to lowered enrollment, as well as Rizzo’s request to leave early in order to get to another job. The split shift was due to Rizzo’s request that she not teach school age children and that she not be alone in a classroom for more than 30 minutes at a time. The kitchen work, Children’s World contends, was not demeaning, because everyone at the center helped with food preparation.

The ADA prohibits discrimination in the “terms, conditions, and privileges of employment.” 42 U.S.C. § 12112. This language is broad enough to encompass the actions Rizzo has alleged. 29 C.F.R. § 1630.5 (“[I]t is unlawful for a covered entity to limit, segregate, or classify a[n] ... employee in a way that adversely affects his or her employment opportunities or status on the basis of disability.”); Interpretive Guidance to 29 C.F.R. § 1630.5 (“[I]t would be a violation ... for an employer to limit the duties of an employee with a disability based on a presumption ... about the abilities of an individual with such a disability.”). Lowering someone’s hours, requiring them to work a split shift and changing their duties from that of bus driver to cook is certainly a change in the conditions of employment.

Children’s World raises several good points to rebut Rizzo’s claims. However, its arguments merely serve to illustrate that a genuine issue exists which must be resolved by the jury. In just one example, Rizzo says kitchen work was demeaning, while Children’s World claims that everyone helped out in the kitchen. A factfinder will have to determine whether consigning Rizzo to kitchen duty was an adverse action taken because of her disability. Thus, there is a genuine issue of material fact as to whether Children’s World took an adverse employment action against Rizzo, and, again, summary judgment is inappropriate.

V. CONCLUSION

We do not doubt that Children’s World acted in good faith throughout this matter, motivated by what it considered to be concern for the children’s safety. Nonetheless, there is a genuine fact issue regarding whether Rizzo poses a direct threat, making summary judgment inappropriate. Therefore, the judgment of the district court is REVERSED and the case is REMANDED for trial.

      . We recently made clear that the Title VII burden shifting framework applies in ADA cases. Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir.1995). This is the same approach followed by other circuits. See Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir.1995); DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir.1995); Ennis v. National Ass’n of Business & Educ. Radio, Inc., 53 F.3d 55, 57 (4th Cir.1995); Smith v. Barton, 914 F.2d 1330, 1339-40 (9th Cir.1990), cert. denied, 501 U.S. 1217, 111 S.Ct. 2825, 115 L.Ed.2d 995 (1991).

      . Indeed, there is no evidence that a choking child makes any noise, let alone exactly what sound the child would make. It is possible that even a driver with perfect hearing could not hear a child choking in the back of the van.


source: Caselaw Access Project

author: LAY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gary R. MORGAN, Defendant-Appellant.
    No. 95-30522.
    United States Court of Appeals, Fifth Circuit.
    May 28, 1996.

      Richard William Westling, Assistant U.S. Attorney, John Francis Murphy, Assistant U.S. Attorney, Stephen A. Higginson, Assistant U.S. Attorney, Office of the United States Attorney, New Orleans, LA, for United States of America, plaintiff-appellee.
    Timothy Allison Meche, New Orleans, LA, for Gary R. Morgan, defendant-appellant.
    Before LAY, HIGGINBOTHAM and STEWART, Circuit Judges.

       Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

   LAY, Circuit Judge:

Gary Morgan was indicted on January 5, 1995 for conspiracy to distribute and distributing marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1). At the time of his arrest, DEA agents seized Morgan’s 1993 GMC pick-up truck, pursuant to 21 U.S.C. § 881(a)(4), since it was allegedly used to deliver approximately eight pounds of marijuana. The truck was titled and registered to Morgan; the registration papers were contained in the truck’s glove compartment at the time of seizure.

On January 17, 1995, DEA mailed Morgan a notice of seizure informing him it intended to forfeit the truck. In response to DEA’s notice, Morgan filed a “Petition For Remission And/Or Mitigation” with DEA’s Asset Forfeiture Section in Washington, D.C. Morgan asserted under oath he was the owner of the truck and requested it be returned. He urged if the truck were forfeited, he would then be exposed to double jeopardy as a result of the government’s continued criminal prosecution. He also requested the government to elect whether to pursue the forfeiture or the criminal prosecution. DEA reviewed Morgan’s petition and denied the requested relief.

After learning that DEA forfeited his truck, Morgan filed a motion to dismiss the superseding indictment based on the Double Jeopardy Clause of the Fifth Amendment. The district court denied Morgan’s motion to dismiss. Morgan filed this interlocutory appeal. We affirm.

Discussion

Morgan claims that in light of the administrative forfeiture of his truck, a criminal conviction would constitute an impermissible second punishment for the same offense. He asserts recent decisions by the Supreme Court, holding that civil penalties can constitute punishment for the purposes of double jeopardy, establish that a civil forfeiture such as the one to which he was subjected is also punishment for double jeopardy purposes. See Montana Dep’t of Revenue v. Kurth Ranch, — U.S. -, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994); Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). The question before us today is whether the administrative forfeiture of property after Morgan has filed only a petition for remission and mitigation constitutes “punishment” so as to trigger his double jeopardy rights. We hold it does not.

Here, Morgan had the choice of contesting the forfeiture proceedings by filing a claim and posting a cost bond or filing a petition for remission or mitigation, or both. It is undisputed that Morgan, with the assistance and advice of counsel, deliberately chose to file a petition for remission or mitigation in lieu of filing a claim and contesting the forfeiture, and, in so doing, voluntarily chose to forego a judicial remedy. His guilt or innocence was never tried. Thus, Morgan was never placed in jeopardy or “punished” in any constitutional sense, because he never participated as a party in any proceeding designed to adjudicate his personal culpability. United States v. German, 76 F.3d 315, 318 (10th Cir.1996). A petition for remission or mitigation does not resolve the issue of personal culpability. See 28 C.F.R. §§ 9.1-9.7. United States v. Schinnell, 80 F.3d 1064 (5th Cir.1996), teaches that a person who avoids an adjudication of his or her guilt or innocence cannot later claim double jeopardy when the government seeks to obtain such adjudication in a later proceeding. See also German, 76 F.3d at 318. The double jeopardy clause does not relieve defendants from the consequences of their voluntary choice to pursue a course of action which avoids any finding of personal culpability. Id.

When a defendant fails to judicially contest a civil forfeiture action by filing a “claim,” the defendant is not subject to former jeopardy in the forfeiture action, and therefore, by definition, the government’s subsequent prosecution of the defendant does not constitute double jeopardy. Schinnell, 80 F.3d at 1067; United States v. Arreola-Ramos, 60 F.3d 188, 192-93 (5th Cir.1995). This reasoning is consistent with that of other circuits. Accord United States v. Denogean, 79 F.3d 1010, 1013 (10th Cir.1996); German, 76 F.3d at 319-20; Vega, 72 F.3d at 514; Baird, 63 F.3d at 1219; United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.), cert. denied, — U.S. -, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994).

We therefore hold that filing a petition for remission or mitigation does not contest the administrative forfeiture because it does not trigger judicial forfeiture proceedings nor make the petitioner a party to any proceeding which can result in punishment for double jeopardy purposes.

The judgment of the district court is AFFIRMED.

      . It is settled in this circuit that the forfeiture of a person's lawfully owned property, because of that person's illegal activity, may constitute “punishment” for double jeopardy purposes. See, e.g., United States v. Perez, 70 F.3d 345, 348-49 (5th Cir.1995).

      . Administrative forfeitures are authorized by procedural provisions of customs laws, 19 U.S.C. §§ 1602-1621 which are incorporated by reference in certain civil statutes. See, e.g., 21 U.S.C. § 881(d). In initiating administrative proceedings, DEA must provide notice of the impending forfeiture, informing interested parties of their right to claim the property by filing a claim and posting a cost bond. 19 U.S.C. § 1607(a); 21 C.F.R. § 1316.75. Seizing agencies may waive the cost bond requirement in cases of demonstrated indigence. See 19 C.F.R. § 162.47(e). Proper and timely filing of a claim and posting a cost bond stops the administrative forfeiture process, and requires the seizing agency to refer the matter to the United States Attorney for the district where the property was seized for the institution of judicial forfeiture proceedings. 19 U.S.C. §§ 1603(b), 1608; 21 C.F.R. § 1316.76(b). Where no person files a claim within the statutory period, the agency is authorized to declare the property forfeited. 19 U.S.C. § 1609(b); 21 C.F.R. § 1316.77. It is undisputed Morgan failed to post a cost bond and file an administrative claim.

      . DEA forfeiture notices also provide information to interested parties on filing petitions for remission or mitigation of the forfeiture pursuant to 28 C.F.R. §§ 9.1-9.7. The remission or mitigation process is not a formal proceeding seeking to punish the petitioner. It is an administrative prelude to the formal forfeiture proceeding, wherein a valid forfeiture is presumed. See 28 C.F.R. § 9.5. Unlike the claimant who files a claim and posts a cost bond, a petitioner seeking remission or mitigation of a forfeiture does not contest the legitimacy of the forfeiture. Rather, a petition for remission or mitigation is a means of ameliorating the harshness of forfeiture when mitigating circumstances exist. Id. In essence, it is a request for leniency, or an executive pardon, based on the petitioner's representations of innocence or lack of knowledge of the underlying unlawful conduct. See United States v. Vega, 72 F.3d 507, 514 (7th Cir.1995); cert. denied, - U.S. -, 116 S.Ct. 2529, — L.Ed.2d - (1996); see also United States v. Wong, 62 F.3d 1212, 1214 (9th Cir.1995). "The remission statute simply grants the Secretary the discretion not to pursue a complete forfeiture despite the Government's entitlement to one.” United States v. Von Neumann, 474 U.S. 242, 250, 106 S.Ct. 610, 615, 88 L.Ed.2d 587 (1986) (holding that remission proceedings are not necessary to a forfeiture determination, and therefore are not constitutionally required).

      . The Supreme Court has consistently adhered to the view that jeopardy does not attach, and the constitutional double jeopardy prohibition can have no application, until a defendant is put to trial before the trier of facts, whether the trier be a judge or jury. See United States v. Baird, 63 F.3d 1213, 1218 (3d Cir.1995) (citations and quotations omitted), cert. denied, -U.S. -, 116 S.Ct. 909, 133 L.Ed.2d 841 (1996).
      As the Third Circuit noted in Baird, the Supreme Court did not discuss the attachment threshold issue in Halper, Austin, or Kurth Ranch. In those cases, it was clear that the double jeopardy claimants suffered punishment only having first been made a party to a proceeding before a trier of fact with jurisdiction to decide guilt or innocence, thus, the attachment threshold was, in each of these cases, satisfied such that no discussion of it was required. See Baird, 63 F.3d at 1218 n. 10 (quotations omitted).


author: PER CURIAM:

text:
    William Earl DEGRATE, Plaintiff-Appellant, v. Laymon GODWIN, Sheriff, et al., Defendants, Harold Harris, Sgt., Defendant-Appellee.
    No. 95-30983
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    June 6, 1996.
    William Earl Degrate, Monroe, LA, pro se.
    John F. Weeks, II, Lloyd Frederick Schroeder, II, T. Allen Usry, Usry & Weeks, Metairie, LA, for defendant-appellee.
    Before JOLLY, JONES and STEWART, Circuit Judges.
   PER CURIAM:

William Earl Degrate appeals the district court’s summary judgment dismissal of his 42 U.S.C. § 1983 prisoner civil rights suit. Finding no deprivation of Degrate’s constitutional rights, we affirm.

The primary issue raised by Degrate on appeal is whether his constitutional rights were violated when he was allegedly denied access to a prison law library. Degrate contends that, without adequate access to the law library, he was unable to represent himself effectively in his criminal ease and was thereby- denied meaningful access to the courts. Initially, Degrate was represented by appointed counsel in his criminal prosecution. Because he became dissatisfied with his appointed counsel, Degrate obtained permission of the court to proceed pro se. De-grate claims that, while he was a pretrial detainee, the Ouachita Parish Sheriffs Office hindered his access to the law library. De-grate further alleges that, on the occasions when he was permitted access to the law library, it was often being used by other inmates as a recreational area.

The United States Supreme Court has clearly warned that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977) (emphasis added). Guided by Bounds, many federal circuit courts have held that a prisoner who knowingly and voluntarily waives appointed representation by counsel in a criminal proceeding is not entitled to access to a law library. United States v. Smith, 907 F.2d 42, 45 (6th Cir.) (state does not have to provide access to a law library to defendants who wish to represent themselves), cert. denied, 498 U.S. 986, 111 S.Ct. 521, 112 L.Ed.2d 533 (1990); United States ex rel George v. Lane, 718 F.2d 226, 233 (7th Cir.1983) (state was not required to offer a defendant law library access once it offered the defendant assistance of counsel, which the defendant declined); United States v. Wilson, 690 F.2d 1267, 1271 (9th Cir.1982) (a prisoner’s Sixth Amendment right to self-representation does not include a right to conduct research at the government’s expense), cert. denied, 464 U.S. 867, 104 S.Ct. 205, 78 L.Ed.2d 178 (1983); Kelsey v. State of Minn., 622 F.2d 956, 958 (8th Cir.1980) (holding that prisoner’s constitutional right of access to courts did not obligate officials to provide him with an adequate law library where alternative means of satisfying access to courts were available); United States v. Chatman, 584 F.2d 1358, 1360 (4th Cir.1978) (obligation to provide access to the courts was satisfied by offering the defendant the assistance of counsel). We agree with the rationale adopted by the foregoing circuits and therefore hold that, having rejected the assistance of court-appointed counsel, Degrate had no constitutional right to access a law library in preparing the pro se defense of his criminal trial. Finding no violation of Degrate’s federally guaranteed rights on the record before us, we affirm the district court’s dismissal of his 42 U.S.C. § 1983 action.

Degrate raises two additional issues on appeal: whether the district court (1) erred by dismissing certain claims against the defendants without fair notice to Degrate; and (2) abused its discretion by denying De-grate’s motion to recuse the magistrate judge. On the record before us, we find no error or abuse of discretion on the part of the district court.

Accordingly, the district court’s judgment is

AFFIRMED.


author: JERRY E. SMITH, Circuit Judge:

text:
    ALTMAN NURSING, INC., Plaintiff-Counter-Defendant-Appellant, v. CLAY CAPITAL CORP., Defendant-Counter-Claimant-Appellee.
    No. 95-10816
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    June 6, 1996.

      Albon 0. Head, Jr., Jackson & Walker, Fort Worth, TX, Brian Allan Kilpatrick, Jackson & Walker, Dallas, TX, for plaintiff-counter defendant-appellant.
    Coyt Randal Johnston, Robert Loyd To-bey, Johnston & Budner, Dallas, TX, for defendant-counter claimant-appellee.
    Before SMITH, BENAVIDES and DENNIS, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Altman Nursing, Inc. (“Altman”), appeals an order requiring arbitration both of its claims against Clay Capital and of Clay’s counterclaims. Concluding that the order is not final, we dismiss the appeal for want of jurisdiction.

I.

Altman and Clay entered into a stock purchase agreement containing an arbitration clause. When a dispute arose concerning Altman’s obligations under the agreement, Altman filed various claims in the district court but did not seek to compel arbitration.

Clay responded by filing various counterclaims and moving to compel arbitration pursuant to the agreement. The district court granted Clay’s motion and ordered all claims submitted to arbitration. Altman appealed.

II.

Clay maintains that we should dismiss the appeal because the motion to compel arbitration was an “embedded” proceeding, and there can be no interlocutory appeal from an embedded proceeding. The Arbitration Act, codified as amended at 9 U.S.C. §§ 1-16, governs appellate jurisdiction over orders compelling arbitration:

(a) An appeal may be taken from—
(3) a final decision with respect to an arbitration that is subject to this title.
(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order—
(1) granting a stay of any action under section 3 of this title;
(2) directing arbitration to proceed under section 4 of this title;
(3) compelling arbitration under section 206 of this title; or
(4) refusing to enjoin an arbitration that is subject to this title.

9 U.S.C. § 16. Thus, an order compelling arbitration is appealable only if it is a final order. Interlocutory orders compelling arbitration are not appealable. McDermott Int'l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 746-47 (5th Cir.), cert. denied, 508 U.S. 951, 113 S.Ct. 2442, 124 L.Ed.2d 660 (1993).

Most courts determine whether an order compelling arbitration is final or interlocutory by looking to whether the arbitration claim is “independent” or is “embedded” in other proceedings. Id. at 747. An independent proceeding is one in which “the only issue before the court is the dispute’s arbitrability.” Id.; see also Gammaro v. Thorp Consumer Discount Co., 15 F.3d 93, 95 (8th Cir.1994) (quoting McDermott). An embedded claim, on the other hand, arises in a suit in which “one party or the other seeks ‘some relief other than an order requiring or prohibiting arbitration (typically some relief concerning the merits of the allegedly arbitrable dispute).’” Id. (quoting Filanto, S.P.A., v. Chilewich Int’l Corp., 984 F.2d 58, 60 (2d Cir.1993)).

The claim for arbitration in this case is an embedded one, as Altman concedes: The parties not only seek to compel arbitration, but also seek relief on a number of underlying claims. Altman contends that the arbitration order is nonetheless a final order, because it completely ended litigation and sent all claims to arbitration. Altman relies on Arnold v. Arnold Corp., 920 F.2d 1269 (6th Cir.1990), which held that an arbitration order was final, though it involved an embedded claim, because it “dismisse[d] an action in deference to arbitration and enter[ed] a final judgment.” Id. at 1275 (quotations omitted).

We disagree. The appropriate test of finality is whether the order involved an independent or embedded proceeding. An order involving an embedded proceeding is always an interlocutory order; an order involving an independent claim is always final. In reaching this conclusion, we are persuaded both by our own statements in McDermott and by the decisions of our fellow courts of appeals.

McDermott did not explicitly hold that there can never be an interlocutory appeal from an embedded proceeding. It did, however, strongly suggest that conclusion:

In determining whether an order affecting arbitration is final or interlocutory, most courts distinguish between arbitration actions that are “independent” and those that are “embedded” among other claims. Generally, if the only issue before the court is the dispute’s arbitrability, the action is considered independent and a court’s decision on that issue constitutes a final decision. If, however, the case includes other claims for relief, an arbitrability ruling does not end the litigation on the merits, but is considered interlocutory only.

981 F.2d at 747 (citations and internal quotations omitted). In fact, a number of other courts have cited McDermott in holding that orders involving embedded proceedings are not appealable under the Arbitration Act. See, e.g., Gammaro, 15 F.3d at 95; Filanto, 984 F.2d at 60.

We are also persuaded by the fact that the overwhelming majority of other circuits to address this issue have concluded that there can be no interlocutory appeal from an embedded proceeding. Only the Sixth Circuit, in Arnold, has reached a different conclusion. But Arnold looked to the legislative history of section 16 of the Arbitration Act to find the meaning of “final decision.” We believe this approach was wrong for the reasons stated by the Seventh Circuit in Perera:

“Final decision” is a legal term of art traditionally used to distinguish appealable and nonappealable lower court decisions under 28 U.S.C. § 1291 — the general provision governing appellate jurisdiction. Judicial decisions have given meaning to this term of art. Section 16 does not define the term “final decision,” nor does it indicate an intent to change the preexist ing judicial interpretation of this term of art. As such, we can assume that by using a term of art Congress intended to retain its preexisting meaning. Moreover, [as] section 16 uses very specific language to change the prior law regarding the appeal-ability of interlocutory decisions disfavoring arbitration, 9 U.S.C. § 16(a)(l)(A-C), it seems that Congress would have been equally specific if it had intended to change the preexisting interpretation of “final decision.”

951 F.2d at 783-84 (citations omitted).

Accordingly, we conclude that an order requiring arbitration in an embedded proceeding is interlocutory and hence not ap-pealable under the Arbitration Act. Because this proceeding is an embedded one, we conclude that we lack jurisdiction to hear the appeal.

The appeal is DISMISSED.

      . See, e.g., Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1302 (9th Cir.1994) ("if the motion to compel arbitration is 'embedded' in a substantive suit pending before the court, the district court's decision to compel arbitration ... is not considered to be final, and therefore not reviewable”); Adair Bus Sales v. Blue Bird Corp., 25 F.3d 953, 955 (10th Cir.1994) (adopting view "that an order can only be final within the meaning of § 16(a)(3) and therefore immediately appealable if arbitrability is the sole issue before the district court”); Gammaro, 15 F.3d at 95 (appellate courts do not have jurisdiction to hear appeals from embedded proceedings); Humphrey v. Prudential Sec. Inc., 4 F.3d 313, 317 (4th Cir.1993) ("An order compelling arbitration is final when it results from a proceeding in which the sole issue before the district court is the arbitrability of the dispute.”); Filanto, 984 F.2d at 60 ("If the suit is ‘embedded!)]' • • • orders directing arbitration are not immediately appealable.”); Perera v. Siegel Trading Co., 951 F.2d 780, 785 (7th Cir.1992) (“|T]his court finds arbitration orders final if arbitration is the sole issue before the court and interlocutory if raised in an embedded proceeding.”).

      . See Arnold, 920 F.2d at 1275 ("[A] final order is one which dismisses 'an action in deference to arbitration’ and enters a final judgment.”).


author: REAVLEY, Circuit Judge:

text:
    DOLE OCEAN LINER EXPRESS, Plaintiff-Appellee, v. GEORGIA VEGETABLE COMPANY, Defendant-Appellant.
    No. 95-60780
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    June 6, 1996.

      Steven M. Schneebaum, Jeanne Marie Liedtka, Patton Boggs, Washington, DC, for plaintiff-appellee.
    Timothy Dale Crawley, Regina Ann Light-sey, Hopkins, Dodson, Crawley, Bagwell, Up-shaw & Persons, Gulfport, MS, for defendant-appellant.
    Before REAVLEY, SMITH and DeMOSS, Circuit Judges.
   REAVLEY, Circuit Judge:

This is an appeal of a district court’s reversal of an arbitration panel’s decision. There is no question that Dole breached its contract with Georgia Vegetable. Pursuant to that contract, Georgia Vegetable requested arbitration of its loss. The arbitration panel awarded Georgia Vegetable damages in excess of the amount provided for in the liquidated damages clause in the contract. The district court found that the arbitration panel exceeded its authority under the contract and reversed the arbitration panel decision. The court reduced the damages to an amount equal to the liquidated damages provision. Believing that the arbitration panel did not exceed its authority to interpret the contract, we reverse the district court.

Dole agreed to provide Georgia Vegetable with 40 foot containers and to transport those containers. Georgia Vegetable was the marketing manager for Manprosa, a Nicaraguan company. Manprosa owned the onions being shipped and Georgia Vegetable received commissions for the sale of the onions in America. The perishable goods were to be transported aboard Dole’s vessels from a port in Nicaragua to America. The contract provided for a minimum number of containers and a price per container. Georgia Vegetable contracted for a total of 170 containers from Dole. Dole shipped only 12. Through another carrier Georgia Vegetable was able to arrange the shipment of 96 containers. However, despite Georgia Vegetable’s best efforts, 62 containers of onions were never shipped, and the goods perished at the port.

Georgia Vegetable invoked the arbitration clause of the contract and sought recovery of its expectancy damages for Dole’s breach. The arbitration panel threw out the liquidated damages clause and awarded Georgia Vegetable $114,506.56, the value of its lost commissions, and awarded Manprosa $550,-606.50 for its loss. The basis for the arbitration panel’s decision was as follows,

Faced with a rather severe container shortage, it would appear that Dole made the business decision to maximize the utilization of the available containers by restricting their dispersal to other countries, i.e., Nicaragua. This policy worked successfully for their ships operated at very close to maximum capacity, principally with [Dole’s] proprietary cargo. [Dole,] after initial shipments, abandoned their contractual obligations to [Georgia Vegetable] without sufficient or adequate notification and having aborted by abandonment the contract, [Dole] cannot seek protection under it.
The liquidated damages provision served its purpose, as intended, to cover the additional expenses incurred on the containers shipped via other carriers at higher expense. The $500.00 per container provision in no way meets the requirements of just and reasonable compensation for the loss of approximately $10,728 per container not shipped on account of abandonment of the contractual obligations to carry this perishable commodity. It has been established that carriers may not limit liability when possible causes could reasonably be known to them.

The district court reversed the arbitration panel’s decision because it “exceeded ‘the express limitations of [the] contractual mandate’ by awarding $10,727.63 per container for a total of $665,113.06—rather than $500 per container for a total of $31,000 (less $14,000 in undisputed unpaid freight).” Dist. Ct. Memorandum Order p. 7.

We review the district court’s decision de novo. Our review of the arbitrator’s award itself is very deferential, and we should set aside that decision only in narrow circumstances. As we said in Gateway Technologies, the award “shall not be vacated unless: (1) the award was procured by corruption, fraud, or undue means; (2) there is evidence of partiality or corruption among the arbitrators; (3) the arbitrators were guilty of misconduct which prejudiced the rights of one of the parties; or (4) the arbitrators exceeded their powers.” Dole argues, and the district court found, that the arbitration panel exceeded its power in awarding damages in excess of the liquidated damages provision in the contract.

The contract provided that the arbitration panel was to interpret the contract in accordance with the “procedural and substantive laws of the Maritime Law of the United States and, to the extent possible, the State of Mississippi.” The determination of whether a liquidated damages clause is enforceable is made by application of a legal standard to the evidence. In Mississippi, liquidated damages provisions are not enforceable if they are not a reasonable pre-estimation of damages. The arbitration panel determined that the $500.00 per container liquidated damage provision “in no way meets the requirements of just and reasonable compensation for the loss ...”

Whatever our belief about the enforceability of the liquidated damages clause may be, it is clear that the arbitration panel had the power to determine that it was not a reasonable pre-estimate of damages and therefore void. Because the determination of whether the liquidated damages provision was legally enforceable was left to the arbitration panel under the contract, the arbitration panel did not “exceed their powers” by finding, as a matter of law, that it was void.

Dole believes our opinion in Delta Queen Steamboat controls the disposition of this case and requires a different result. In Delta Queen Steamboat, we held that “arbitral action contrary to express contractual provisions will not be respected.” The arbitrator there lacked authority to order reinstatement of a pilot found to be grossly careless. In this case, however, the arbitration panel had the legal power to find the liquidated damages clause void. Once done, there was no contractual provision which the arbitration panel had to follow to determine Georgia Vegetable’s loss. The district court’s and Dole’s reliance on Delta Queen was misplaced.

Finally, Dole asserts the arbitration panel exceeded its authority in ordering payment to Manprosa, a third party. As a part of its decision, the arbitration panel awarded a portion of the losses to Manprosa, the grower of the onions in Nicaragua. Dole asserts it has been forced to arbitrate its dispute with Manprosa without any contractual duty to do so. We disagree.

In determining whether the arbitration panel exceeded its jurisdiction, we resolve all doubts in favor of arbitration. There is no question that Georgia Vegetable had the right to seek damages on behalf of Manprosa as its agent. Manprosa explicitly authorized Georgia Vegetable to handle any type of litigation concerning the onions, “in its own name just as if it were owners of said onions.” “A person with whom an agent makes a contract on behalf of a principal is subject to liability in an action brought thereon by the agent in his own name on behalf of the principal if the agent is a party promisee.” Furthermore, the contract between Dole and Georgia Vegetable required the arbitration of “[a]ny dispute, controversy or claim, arising out of or relating to [the] contract or a breach thereof....” From Dole’s perspective, the two entities were one for purposes of recovering under the contract. Because Georgia Vegetable was free to sue Dole on behalf of Manprosa, we believe it was entitled to also seek arbitration.

Any error which occurred concerned not whether Dole had to pay the damages, but rather to whom the damages should be paid. Because the arbitration was between Dole and Georgia Vegetable, the entire amount should have been awarded to Georgia Vegetable. For purposes of Dole’s agreement with Georgia Vegetable, Georgia Vegetable was the owner of the perishable goods. Dole was not forced to arbitrate a dispute with Manprosa. Dole was only forced to pay an amount due to Georgia Vegetable, and by it to a third party. Because Georgia Vegetable does not complain, we find Dole’s argument meritless.

The district court is REVERSED, the cause is REMANDED to that court to reinstate the arbitration panel award.

      . The parties have settled the claim on 93 of the containers shipped on other carriers pursuant to the liquidated damages clause of the contract. Dole paid $46,500, the maximum permitted under the contract.

      . The arbitration clause of the contract, section 14.4, provides in pertinent part that, "[a]ny dispute, controversy or claim, arising out of or relating to this Contract or a breach thereof, shall be finally resolved by arbitration.”

      .The total amount awarded was reduced by $14,000 due Dole for unpaid freight.

      . The liquidated damages provision, section 7.2 of the contract, provided,
      In the event that [Dole] shall fail to transport containers duly tendered by [Georgia Vegetable] pursuant to this Contract, to the extent that [Georgia Vegetable] must and does transport such containers on alternative ocean carrier's vessels, [Dole] shall pay to [Georgia Vegetable] a sum equal to the amount such alternative carrier's rates exceed the Base Rates of [Dole]; provided however that such sum shall in no event exceed $500.00 per container. In the event that [Georgia Vegetable,] after due diligence, is unable to ship on an alternative carrier, then providing [Georgia Vegetable] exercised due diligence ’ to locate and ship on an alternative carrier, [Dole] shall pay to [Georgia Vegetable] US$500.00 for each container not shipped by [Dole] after duly tendered by [Georgia Vegetable].

      . First Options of Chicago, Inc. v. Kaplan, - U.S. -, -, 115 S.Ct. 1920, 1923, 131 L.Ed.2d 985 (1995).

      . Gateway Technologies, Inc. v. MCI Telecommunications Corp., 64 F.3d 993, 996 (5th Cir.1995); 9 U.S.C. § 10(a).

      . See Fanners Export Co. v. M/V Georgis Prois, Etc., 799 F.2d 159, 162 (5th Cir.1986).

      . Varner v. Varner, 666 So.2d 493, 496 (Miss.1995); Board of Trustees of State Institutions of Higher Learning v. Johnson, 507 So.2d 887, 890 (Miss.1987).

      . Arbitration Panel op. p. 6.

      . See Farmers Export, 799 F.2d at 162; Varner, 666 So.2d at 496; Johnson, 507 So.2d at 890.

      . Delta Queen Steamboat Co. v. District 2 Marine Engineers Beneficial Ass’n., 889 F.2d 599 (5th Cir.1989), cert. denied, 498 U.S. 853, 111 S.Ct. 148, 112 L.Ed.2d 114 (1990).

      . Id. at 604.

      . We note, however, that Georgia Vegetable is still limited in its recovery to only damages submitted to the arbitration panel. Compare Valentine Sugars, Inc. v. Donau Corp., 981 F.2d 210, 213 (5th Cir.), cert. denied, 509 U.S. 923, 113 S.Ct. 3039, 125 L.Ed.2d 725 (1993) (broad arbitration provision permitted resolution of issues presented to arbitrator), and Totem Marine Tug & Barge, Inc. v. North American Towing, Inc., 607 F.2d 649, 651 (5th Cir.1979) (where party expressly stated issue was not before arbitrator and other party relied on representation then issue could not be decided by arbitrator).

      . Valentine Sugars, 981 F.2d at 213.

      . Dole asserts on appeal that the arbitration panel misread the applicable contract between Manprosa and Georgia Vegetable. As the agreement is not in the record, we have deferred to the arbitration panel’s factual determination of the contract’s scope.

      .Arbitration Panel op. p. 2-3.

      . Restatement (Second) of Agency § 364 (1958); Lubbock Feed Lots, Inc. v. Iowa Beef Processors, Inc., 630 F.2d 250, 258 (5th Cir.1980), reh’g denied, 634 F.2d 1355 (5th Cir.1980); Forest Oil Corp. v. Tenneco, Inc., 626 F.Supp. 917, 921-22 (S.D.Miss.1986).

      . § 14.4 of the Contract.

      . As evidence that Dole is being forced to arbitrate the case with Manprosa, Dole asserts that it refused to permit Manprosa to be a signatory of the contract. Dole Brief, p. 18 n. 12; Arbitration Panel op. p. 3. However, the mere fact that Dole insisted it deal with Manprosa's agent and not Manprosa does not support such a contention. Dole was aware that Georgia Vegetable was Manprosa's agent, and as such should have been aware that Manprosa’s agent would enforce the contract on behalf of the principal.


author: DUHÉ, Circuit Judge:

text:
    Charles D. GAUTREAUX, Plaintiff-Appellee, v. SCURLOCK MARINE, INC., Defendant-Appellant.
    Nos. 95-30250, 95-30272.
    United States Court of Appeals, Fifth Circuit.
    June 6, 1996.
    Order Granting Rehearing July 17, 1996.

      Leonard Arthur Radlauer, New Orleans, LA, for plaintiff-appellee.
    Allen F. Campbell, Gene Ray Smith, Bertrand M. Cass, Jr., Deutsch, Kerrigan & Stiles, New Orleans, LA for defendant-appellant.
    Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and SCHWARZER, District Judge.

      . District Judge of the Northern District of California, sitting by designation.

   DUHÉ, Circuit Judge:

Charles Gautreaux brought this Jones Act and general maritime law action against his employer, Seurlock Marine, Inc. (“Seurlock”), seeking damages for work-related injuries. The district court entered judgment on a jury verdict in Gautreaux’s favor and denied Scurloek’s motion for judgment as a matter of law, new trial, or to alter, amend or remit the judgment. Seurlock appeals, complaining of the jury instructions, denial of its motion for judgment as a matter of law, refusal to grant a new trial or to alter, amend or remit the judgment, and denial of limitation of liability. We affirm.

I. BACKGROUND

Archie Seurlock, as President and owner of Seurlock, purchased the BROOKE LYNN in May 1993, and retained as her permanent captain Lance Orgeron. In October 1993, Charles Gautreaux applied for a position with Seurlock. Gautreaux had worked as a tanker man since the early 1980’s and had recently earned a U.S. Coast Guard master’s license. Seurlock hired Gautreaux as the BROOKE LYNN’s relief captain.

The BROOKE LYNN is a standard inland pushboat, equipped with two towing winches on her bow, which are used to secure lines joining the BROOKE LYNN to the barges in her tow. The starboard side winch is hydraulic, and the port side winch is electric. Upon being hired, Gautreaux was taken to the BROOKE LYNN and instructed on her operation by Archie Seurlock. Orgeron took Gautreaux on a tour of the vessel, showing him the layout of the vessel and familiarizing him with her equipment. Orgeron showed Gautreaux the manual crank handle that accompanied the electric winch and told him that it was to be used to override the electric switches on the winch if they failed. Orger-on explained that, if the winch became “bound up” and would not engage by use of the electric ignition switch, the manual crank should be attached to the winch motor and turned a few times to “unbind” the winch, and then the electric ignition switch should be used to try to engage the winch. Neither Archie Seurlock nor Orgeron told Gautreaux that while using the manual crank handle he should not leave the handle on the winch motor when attempting to engage the winch by pro ring the electric ignition switch.

About four months after he was hired, Gautreaux, serving as captain of the BROOKE LYNN, relieved the tanker man on duty and began off loading of the barge in tow. As the barge discharged its cargo, it began to rise in the water, eventually causing the towing wires connecting it to the BROOKE LYNN to become taut. Noticing this, Gautreaux attempted to relieve the tension in the wires by unwinding them from the winches. He released the starboard wire first, which caused that side of the BROOKE LYNN to drop and the port side towing wire to become even tighter. Gautreaux then attempted to release the port side wire, but the electric winch would not work. He attached the manual crank handle to the winch motor, and began turning the handle while simultaneously pressing the electric ignition switch. When the motor started, the manual crank handle flew off and struck Gautreaux on the right side of his face, crushing his right eye and inflicting other severe fractures and lacerations.

Gautreaux sued Scurlock, alleging that his injuries were caused by its negligence and the unseaworthiness of the BROOKE LYNN. Gautreaux’s primary complaint was that Scurlock failed to properly train him in the use and operation of the electric towing ■winch and its manual crank handle, thereby not providing him a safe place to work. Scurlock answered and sought exoneration from or limitation of its liability. After a two-day trial, the jury returned a verdict in favor of Gautreaux on his Jones Act negligence claim, but found the BROOKE LYNN seaworthy. The jury apportioned fault 95% to Scurlock and 5% to Gautreaux and awarded a total of $854,000 in damages.

The district court entered judgment for Gautreaux for $811,300. By separate order, the district court denied Seurlock’s petition for limitation of liability. Scurlock moved in the alternative for judgment as a matter of law, for new trial, or to alter, amend or remit the judgment. The district court denied these motions, conditioning denial of the motion for new trial on the amount of lost future wages on Gautreaux’s acceptance of a remit-titur. Gautreaux accepted the remittitur, and the district court entered an amended judgment for $736,925 for Gautreaux.

On appeal, Scurlock argues that the district court committed the following errors: (1) improperly charging the jury on the applicable law, (2) refusing to enter judgment as a matter of law on the issues of entitlement to lost future wages and liability, (3) failing to recognize that the awards for lost future wages and pain and suffering were excessive and warranted a new trial, and (4) denying its petition for limitation of liability.

II. DISCUSSION

A. Jury instructions

The district court has broad discretion in formulating the jury charge, and so we review jury instructions with deference. Stine v. Marathon Oil Co., 976 F.2d 254, 259 (5th Cir.1992); Bradshaw v. Freightliner Corp., 937 F.2d 197, 200 (5th Cir.1991); Treadaway v. Societe Anonyme Louis-Dreyjus, 894 F.2d 161, 167 (5th Cir.1990). Accordingly, a jury charge is to be considered as a whole, and so long as the jury is not misled, prejudiced, or confused, and the charge is comprehensive and fundamentally accurate, it will be deemed adequate. Davis v. Avondale Indus., Inc., 975 F.2d 169, 174-75 (5th Cir.1992); Bradshaw, 937 F.2d at 200. We reverse for error in charging the jury only when the charge given, as a whole, leaves us with substantial and ineradicable doubt whether the jury has been properly guided in its deliberations. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir.1995) (quoting FDIC v. Mijalis, 15 F.3d 1314, 1318 (5th Cir.1994)); Hall v. State Farm Fire & Casualty Co., 937 F.2d 210, 214 (5th Cir.1991) (quoting Treadaway, 894 F.2d at 167-68).

Scurlock contends the district court erred by failing to instruct the jury that a Jones Act employer is entitled to rely on the experience, training, license, or education of individual seamen-employees in determining whether or to what extent to train them. Further, Scurlock argues the district court’s refusal to instruct the jury that it could consider these same qualities of a seaman-employee when determining his contributory negligence was also error.

As a threshold matter, the district court is not required to give a requested jury instruction that is not a correct statement of the law. Mooney, 54 F.3d at 1216; Treadaway, 894 F.2d at 167. If the proposed instruction does accurately state the law, the district court still has not committed reversible error by refusing to give it, provided the substance of the requested instruction is conveyed in the charge. Dawsey v. Olin Corp., 782 F.2d 1254 (5th Cir.1986). See also Bank One, Texas, N.A. v. Taylor, 970 F.2d 16, 30 (5th Cir.1992), cert. denied, 508 U.S. 906, 113 S.Ct. 2331, 124 L.Ed.2d 243 (1993).

The district court charged:

Now in considering the experience of the plaintiff, you may find the defendant negligent if you find from a preponderance of the evidence that defendant assigned plaintiff to perform a task which he was not adequately trained to perform. The defendant was obliged to train all of its employees, including the captain of the vessel, in the proper and safe use of the vessel’s equipment. However, defendant was under no obligation to warn the plaintiff of conditions of which he was aware.

This instruction clearly invited the jury to assess the impact of Gautreaux’s training and experience on Seurlock’s duty to train him in the operation of the winch. The district court need not adopt verbatim the wording of an instruction suggested by a party. See, e.g., Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070, 1075 (5th Cir.1986). Instead, its task merely is to fully and correctly charge the jury on the applicable law. Bender v. Brumley, 1 F.3d 271, 276 (5th Cir.1993) (quoting 9 Wright & Miller, Federal Practice and Procedure § 2556 (1917)). On this record, we find no reversible error in the district court’s refusal to give Scurlock’s proposed instructions.

As to the instructions on Gautreaux’s contributory negligence, the district court was not as precise, but was equally as effective. The district court instructed:

If a seaman is provided with a safe way to work and he chooses to do something in a way that he knows or should know is unsafe and dangerous, his employer is not responsible for the results of a choice made knowingly by the seaman.
... [I]f you find that the plaintiff chose to use an unsafe method that he knew or should have known was unsafe, or in violation of instructions, you may find he was wholly or partly responsible for what happened.

Again, it is not error for the district court to refuse to give a requested instruction that accurately states applicable law if the substance of that instruction is embraced in the charge. We conclude that, albeit without the exactitude Scurlock sought, this instruction sufficiently conveyed that Gautreaux’s training, knowledge, and experience were factors the jurors could consider in determining whether his own conduct was negligent and contributed to his injuries.

Finally, Scurlock argues it was error to instruct the jury with respect to determining contributory negligence that Gautreaux was only required to exercise slight care for his own safety under the circumstances. Instead, Scurlock contends, the standard to which Gautreaux, and all seamen, should be held is that of a reasonably prudent person exercising ordinary or due care under like circumstances. The slight care standard, however, is the settled law of this Circuit, see, e.g., Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1355 (5th Cir.), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 533 (1988); Pickle v. International Oilfield Divers, Inc., 791 F.2d 1237, 1240 (5th Cir.1986), cert. denied, 479 U.S. 1059, 107 S.Ct. 939, 93 L.Ed.2d 989 (1987); Brooks v. Great Lakes Dredge-Dock Co., 754 F.2d 536, 538 (5th Cir.1984), and as modified, 754 F.2d 539, 540 (5th Cir.1985), and the district court must instruct the jury fully and correctly on the applicable law. Thus, that the district court declined to give Scurloek’s proposed instruction that the seaman’s duty is one of ordinary or due care, in favor of the slight care instruction, was not error.

B. Judgment as a matter of law

1. Lost future wages

Scurlock argues the district court erred in denying its motion for judgment as a matter of law on Gautreaux’s claim for lost future wages, because Gautreaux failed to introduce any expert testimony or other vocational disability evidence demonstrating that he suffered diminished future earning capacity beyond the two years medical experts testified it would take him to adjust to monoseopic vision. Instead, the only evidence of disability was Gautreaux’s own testimony that he did not feel comfortable returning to his pre-injury employment. Scurlock contends the record is, therefore, devoid of competent evi-denee supporting a claim for lost future wages for any period beyond the two-year period of adjustment.

Judgment as a matter of law in a Jones Act case is appropriate only when there is a complete absence of probative facts supporting the nonmovant’s position. See, e.g., Hughes v. International Diving & Consulting Servs., Inc., 68 F.3d 90, 93 (5th Cir.1995). As this standard is highly favorable to the plaintiff, we must validate the jury verdict if at all possible. Id. As there was more than adequate evidence upon which to submit to the jury the question of Gautreaux’s lost future wages, validation of the verdict in this case is appropriate.

Dr. J. Bruce Steigner, the ophthalmologist who surgically removed Gautreaux’s crushed right eye and monitored his recovery from the injury, testified that Gautreaux’s loss of one eye equated to a 50% disability of his visual system and a 25% disability of his total anatomy according to guidelines of the American Medical Association. Dr. Steigner further stated that loss of an eye greatly impairs one’s depth perception and peripheral vision, impairments which he believed would make piloting a tug difficult. Scurlock’s psychiatric expert testified that Gautreaux suffered from an adjustment disorder accompanied by depression, a condition not uncommon following such an injury. He indicated that, while he did not think Gautreaux was disabled by this condition, he did believe Gautreaux harbored legitimate fears about his post-injury condition and recommended that Gautreaux not put himself in positions that could threaten the safety of his other eye. Finally, expert economic testimony quantified Gautreaux’s alleged loss. This evidence, combined with Gautreaux’s testimony that he fears returning to his former position and losing his other eye, that he has only a tenth grade education, and that he has been trained on and worked on boats most of his work life, sufficiently supports the district court’s decision to submit the issue of lost future wages to the jury.

2. The Walker “primary duty” doctrine

Scurlock argues Gautreaux’s claim is barred by the doctrine enunciated in Walker v. Lykes Bros. S.S. Co., 193 F.2d 772 (2d Cir.1952), such that it was entitled to judgment as a matter of law on the issue of liability. Walker's holding has been construed to mean that a seaman who breaches a duty owed his employer, which he assumed by accepting employment, may not recover from his employer if such breach is the sole cause of the seaman’s injury. Peymann v. Perini Corp., 507 F.2d 1318 (1st Cir.1974), cert. denied, 421 U.S. 914, 95 S.Ct. 1572, 43 L.Ed.2d 780 (1975). Accordingly, Scurlock argues Gautreaux’s recovery is barred because the master or ship’s officer is responsible for the safe operation of the vessel. Gautreaux breached this duty because he forgot to release the towing wires during unloading operations, thereby creating excessive strain on the wires and causing the failure of the electric towing winch, in response to which he negligently operated the winch in such a manner as to cause himself injury.

Scurlock attempts to distinguish Kelley v. Sun Transp. Co., 900 F.2d 1027 (7th Cir.1990), and Kendrick v. Illinois Cent. Gulf R.R., 669 F.2d 341 (5th Cir.1982), both of which denounced Walker’s complete bar rule in favor of proportionate fault reduction, as not embracing the scenario in which the captain creates the unreasonably unsafe condition and then negligently proceeds to encounter it, thereby injuring himself.

Our jurisprudence may lend some support to Scurloek’s contention that Gautreaux should be barred from recovery if his negligent conduct alone caused his injury, and his employer was completely free from fault. See, e.g., Kendrick, 669 F.2d at 344 (“[The employee’s] negligence would only reduce, not bar, recovery unless the employer were not negligent at all and the employee’s negligence was the sole cause of his injury.”); Boudreaux v. Sea Drilling Corp., 427 F.2d 1160 (5th Cir.1970). Nonetheless, a Jones Act employer is liable for even the slightest negligence, and the seaman-plaintiffs burden of proving causation is “featherweight.” River Transp. Assocs. v. Wall, 5 F.3d 97, 100 n. 4 (5th Cir.1993); Zapata Haynie Corp. v. Arthur, 980 F.2d 287, 289 (5th Cir.1992), cert. denied, 509 U.S. 906, 113 S.Ct. 2999, 125 L.Ed.2d 692 (1993). As indicated earlier, when confronted with the Jones Act plaintiffs “featherweight” burden, judgment as a matter of law is appropriate only when there is a complete absence of probative facts supporting the nonmovant’s position. Hughes, 68 F.3d at 93; Bommarito v. Penrod Drilling Corp., 929 F.2d 186, 188 (5th Cir.1991). Thus, because the record contains evidence that Scurlock was at least slightly negligent and that its negligence contributed to Gautreaux’s injuries, the district court’s refusal to take the question of liability from the jury was proper.

Cl Damages

Like other factual findings, we review a jury’s finding of damages for clear error. Myers v. Griffin-Alexander Drilling Co., 910 F.2d 1252, 1255 (5th Cir.1990) (quoting Wood v. Diamond M Drilling Co., 691 F.2d 1165, 1168 (5th Cir.1982), cert. denied, 460 U.S. 1069, 103 S.Ct. 1523, 75 L.Ed.2d 947 (1983)). If, however, “a jury award is reviewed indirectly through the conduit of the trial court’s response to a motion for new trial on damages, it is the propriety of the judge’s action rather than the jury’s decision that is reviewed. Thus the abuse of discretion standard of review applies.” Stokes v. Georgia-Pacific Corp., 894 F.2d 764, 769 (5th Cir.1990). See also Esposito v. Davis, 47 F.3d 164, 167 (5th Cir.1995).

Scurlock attacks the jury’s damages award on two fronts, seeking reversal of the district court’s denial of its motion for new trial on these issues. Initially, Scurlock argues that, if it was proper for the jury to decide the issue, the jury’s verdict on lost future wages was excessive in light of the lack of evidence as to Gautreaux’s future employability. Additionally, Scurlock complains that the amount returned by the jury, $500,000, was unsupported by the evidence, as Gautreaux’s economist put the figure at just over $400,000 and his counsel suggested $300,000 to $325,000 was sufficient. Accordingly, because the jury’s verdict was in excess of that offered into evidence, it was based on speculation and a new trial should have been granted. Finally, Scurlock believes that the final award after the district court granted a remittitur to $400,625, the economist’s figure, is still excessive, and that the granting of the remittitur was an admission by the district court that the jury verdict was unfounded, such that the award should have been reversed or further reduced.

Gautreaux defends the award on the grounds that he has only a tenth grade education and his only job training is as a vessel employee, that his fear of injuring himself or others is real enough to justify his not returning to his previous employment, that the medical experts testified he would have difficulty docking vessels due to his monoscopic vision and loss of peripheral vision and depth perception, that the award after remittitur equaled that suggested by his economist, and that the jury reached its verdict after viewing all the evidence. Having reviewed the record, we cannot say that the district court abused its discretion in denying Scurlock’s new trial motion, especially considering it conditioned its denial on Gautreaux’s acceptance of a remittitur of almost $100,000.

Second, Scurlock argues that the $300,000 award for pain and suffering was also excessive, and that the entire award was driven by improper comments by Gautreaux’s counsel aimed at inciting the passion and prejudice of the jury. Scurlock asserts that Gautreaux’s pain and suffering was brief and never excessive or excruciating, as he received prompt medical care, had surgery on an out-patient basis, never sought hospitalization for pain or discomfort, and reached full medical cure in only four months. Further, Scurlock contends the award was influenced by a groundless question posed by Gautreaux’s counsel to Archie Scurlock concerning threats of “blackballing” Gautreaux if he proceeded with this lawsuit — an accusation to which Scurlock claims it was not allowed to respond.

In fact, Gautreaux has undergone three surgeries, had his eyeball scooped out, is forced to wear a prosthetic eye which must be removed for cleaning frequently, and must endure both functional and cosmetic disabilities for the rest of his life. Also, while recuperating from his second surgery, Gau-treaux was placed on extraordinarily strong medication to combat painful headaches and other discomfort associated with his injury. Further, Gautreaux suffers from moderate depression as a result of the loss of his eye. Finally, the allegedly improper comments of Gautreaux’s counsel consist of a single question asked to Archie Scurlock about whether he threatened to blackball Gautreaux. The matter rested with Archie Scurlock’s answer that he did not; no further inquiry or argument on the matter followed.

Awards of pain and suffering are fact-specific and depend to a great extent on the fact-finder’s observation of the plaintiff and its subjective determination of the amount needed to achieve full compensation. Johnson, 845 F.2d at 1357. As such, the district court is accorded great latitude in assessing damages. Parks v. Dowell Div. of Dow Chemical Corp., 712 F.2d 154, 160 (5th Cir.1983). Considering the record in this case, a jury award of $300,000 for past and future pain and suffering does not seem clearly erroneous, nor did the district court abuse its discretion in denying Scurlock a new trial. See Stokes, 894 F.2d at 769. Additionally, because the district court is in a better position to evaluate the prejudice flowing from counsel’s improper comments during trial and to determine the most effective response to ensure a fair trial, a new trial will not be granted, even if counsel’s remarks are improper, unless after considering the record as a whole the court concludes that manifest injustice would result from letting the verdict stand. Johnson v. Ford Motor Co., 988 F.2d 573, 582 (5th Cir.1993). Because Gautreaux’s counsel asked only a single question, to which Archie Scurlock responded in the negative and about which no further comment was made, substantial prejudice was not caused Scurlock and a new trial was not necessary.

D. Limitation of liability

The district court denied Scurlock limitation, finding that the evidence established that Scurlock, the vessel owner, negligently failed to train Gautreaux in the proper operation of the electric winch and that this failure in part caused Gautreaux’s injuries. Further, the district court indicated that Seur-lock was accountable for the actions of its managing officer and owner, Archie Scurlock, who failed to properly train Gautreaux.

The liability of the owner of a vessel for any loss or injury involving the vessel can be limited to the value of the vessel and its freight, provided the loss occurred without the vessel owner’s “privity or knowledge.” 46 U.S.C.App. § 183(a). The vessel owner seeking limitation bears the burden of proving its lack of privity or knowledge of the injury-causing conduct or condition. Cupit v. McClanahan Contractors, Inc., 1 F.3d 346, 348 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1058, 127 L.Ed.2d 378 (1994); Verdin v. C & B Boat Co., 860 F.2d 150, 156 (5th Cir.1988). For the purposes of limitation, a vessel owner’s privity may arise if it personally participates in the negligent conduct that produces the injury, Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1473 (5th Cir.1991), and a corporate vessel owner is charged with the privity or knowledge of its managing officers whose scope of authority includes supervision of that part of the business out of which the loss occurred, Brunet v. United Gas Pipeline Co., 15 F.3d 500, 504 (5th Cir.1994); Cupit, 1 F.3d at 348; Patton-Tully Transp. Co. v. Ratliff (In re Complaint of Patton-Tully Transp. Co.), 797 F.2d 206, 211 (5th Cir.1986). “In the limitation of liability context, the district court’s findings about negligence, unseaworthiness, privity, and knowledge are considered on appeal to be factual findings subject to review under the clearly erroneous standard.” Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1557 (11th Cir.1987), cert. denied, 486 U.S. 1033, 108 S.Ct. 2017, 100 L.Ed.2d 604 (1988). See also Farrell Lines Inc. v. Jones, 530 F.2d 7 (5th Cir.1976). The district court did not err in finding privity acknowledged on the part of Scurlock and thus concluding Scurlock was not entitled to limit its liability.

III. CONCLUSION

Based on the foregoing discussion, the district court’s judgment is, in all aspects, AFFIRMED.

Before POLITZ, Chief Judge, and KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.

ON SUGGESTION FOR REHEARING EN BANC

July 17, 1996

BY THE COURT:

A member of the court in active service having requested a poll on the suggestion for rehearing en banc and a majority of the judges with active service having voted in favor of granting a rehearing en banc,

IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.

      .The jury's award was:
      Past and future pain and suffering and disability $300,000
      Past lost wages 24,000
      Future lost wages 500,000
      Future medical expenses 30,000
      Total $854,000

      .The district court found the jury's award of $500,000 for lost future wages excessive and against the great weight of the evidence, insofar as the award was premised on Gautreaux's inability to return to minimum-wage employment during the first two years after the accident. Accordingly, the district court conditioned denial of Scurlock's new trial motion on this element of damages on Gautreaux’s acceptance of an award of $400,625.

      . On June 7, 1995, the district court further amended its judgment, discovering that it had failed to reduce the remitted amount of lost future wages by Gautreaux’s percentage of fault.

      . We do not decide whether, generally, a Jones Act employer’s duty to train its seamen-employees is controlled by the amount or lack of experience, training, licensing, education, or knowledge the seaman-employee possesses, as such a conclusion is not warranted by these facts. Instead, on this record, Gautreaux's uncontrovert-ed testimony that he had never seen a manual crank handle for use on an electric winch was sufficient to establish that Scurlock was required to train him as to the proper use of this appliance.

      . The contributory negligence instructions given by the district court conform to the Fifth Circuit Pattern Jury Instructions on this issue. See Pattern Jury Instructions, Civil Cases, U.S. Fifth Circuit District Judges Association No. 4.7 (West 1995).

      . In its brief and at oral argument, Scurlock urged this court to abandon the slight care standard in Jones Act cases, contending that the standard has evolved from this court's blind adherence to an incorrect statement of the law. In support of its position, Scurlock cites an article by the admiralty scholar, Professor Robert Force of Tulane Law School, Allocation of Risk and Standard of Care Under the Jones Act: "Slight Negligence,” "Slight Care"?, 25 J.Mar.L. & Com. 1 (1994), and the recent opinion of the Third Circuit Court of Appeals in Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269 (3d Cir.1995). While we recognize the fine work of Professor Force and the astute observations of our sister circuit, settled law of this Circuit, such as the slight care standard in a Jones Act case, can only be changed, absent action by the United States Supreme Court, by this court sitting en banc. See, e.g., FDIC v. Dawson, 4 F.3d 1303, 1307 (5th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 2673, 129 L.Ed.2d 809 (1994); Burlington Northern R.R. v. Brotherhood of Maintenance of Way Employees, 961 F.2d 86, 89 (5th Cir.1992), cert. denied, 506 U.S. 1071, 113 S.Ct. 1028, 122 L.Ed.2d 173 (1993).


text:
    AMERICAN CIVIL LIBERTIES UNION OF MISSISSIPPI, INC. et al., Plaintiffs-Appellees/Cross Appellants, v. Edwin KING, Plaintiff-Appellant/Cross Appellee, v. Kirk FORDICE, Governor, et al., Defendants-Appellees.
    No. 94-60425.
    United States Court of Appeals, Fifth Circuit.
    June 11, 1996.

      Luke Dove, Dove, Chill & Calhoun, Jackson, MS, for Appellant.
    Shirley Payne, Horn & Payne, Jackson, MS, for ACLU, et al.
    Mary Margaret Bowers, Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, MS, for Fordice, et al.
    Before WISDOM, EMILIO M. GARZA and PARKER, Circuit Judges.
   PER CURIAM:

In ACLU v. Mississippi 911 F.2d 1066, 1069 (5th Cir.1990) we remanded this case to the district court to devise a remedy that accommodates the constitutional privacy interests of the plaintiff class. We affirm, finding that the district court did not abuse its discretion in adopting the plan now under review.

FACTS AND PROCEDURAL HISTORY

The Mississippi State Sovereignty Commission (“Commission”) gathered personal information about Mississippi citizens from 1957 to 1977, with the purpose of thwarting desegregation and other civil rights work. The Commission records included information, some of which was not true, about individuals’ sexual preferences and activities, financial dealings, political and religious beliefs and affiliations, and drug and alcohol use. This information was disseminated by the Commission to law enforcement agencies, employers, and others prior to 1977.

When the Mississippi legislature disbanded the Commission in 1977, it directed that all of its records be destroyed. The federal district court granted the plaintiff class an injunction forbidding the destruction of the files. In response, the legislature sealed the files until 2027. In 1987, the plaintiff class was subdivided into “disclosure plaintiffs” who sought unlimited disclosure of Commission files to the general public and “privacy plaintiffs” who did not want- public access to the records without the prior permission of those named in the record or without notice to those persons. The district court then enjoined the enforcement of the statute sealing the files, ordering that all Commission files be disclosed and accessible to the general public. This Court vacated that order, holding that complete and unfettered disclosure of the files does not give appropriate protection to the constitutional privacy interests of persons in not having government-gathered sensitive personal information about them released, ACLU v. Mississippi, 911 F.2d 1066, 1069 (5th Cir.1990), and remanded to the district court to devise a plan that accommodates those interests. Id. at 1075.

THE DISTRICT COURT ORDER NOW UNDER REVIEW

On remand, the district court found that “as a practical matter, many of the documents from the files are already in circulation,” and held that the public has a “right to know” what is contained in the Commission files, and therefore that the “Commission files should be presumptively open.” The district court noted that this Court had referred to the possibility of redacting names from previously unpublished material but concluded that such a solution was not viable. The redaction of names in any given file will “not necessarily” protect the privacy interest of those individuals because they may also be named in previously published materials, which are cross indexed in the files.

As part of the procedure designed to protect privacy, the district court divided persons named in the files into two categories: (1) victims, who were subjected to investigation or surveillance and (2) state actors. State actors, defined as a member, employee or informant of the Commission or any person who requested information from the Commission during its existence, have no privacy rights under the district court order. The district court ordered the Mississippi Department of Archives and History (“MDAH”) to list and classify all the persons named in the documents not already in circulation as victims or state actors. Any person classified as a “state actor” can challenge that status, and any person classified as a “victim” can challenge the opening of a file containing references to them. Files involved in such a challenge will remain sealed until the challenge is resolved by a later, undescribed judicial proceeding.

The district court further ordered MDAH to publish notices in national and state newspapers and held that such publication “will sufficiently notify those who may have been victims of unlawful Commission activities as to their rights as set forth in this opinion.” Any person can respond to the public notice and request whether his name appears in the files and if so, ask for a copy of such files. The responding person may make various requests including requesting that his name be redacted from the file. If MDAH receives no response, this inaction will be treated as a waiver of that person’s privacy interest.

REMEDY NOT AN ABUSE OF DISCRETION

We remanded this case, leaving “the district court broad discretion to fashion a remedy[.]” ACLU, 911 F.2d at 1074. We now review that remedy for abuse of discretion.

Plaintiff Edwin King, representing the privacy plaintiffs, contends on appeal that the district court erred in holding that the files are “presumptively open,” in failing to order that victims’ names be redacted unless the victims give actual consent to release, and in prescribing inadequate notice.

We find that the district court’s findings of facts are not clearly erroneous, see ACLU v. Mississippi, 911 F.2d at 1069, and that the remedy devised, while necessarily imperfect, was not an abuse of discretion.

CROSS APPEAL

American Civil Liberties Union of Mississippi, Inc., Cross Appellants, ask this Court to modify the district court’s order in three particulars: (1) the archivists’ determinations in indexing the documents should not be granted deference by the courts; (2) no class of documents should remain permanently sealed; (3) the right of victims to insert rebuttal materials should not be cut off.

Disclosure plaintiffs ask that this Court “fine tune” the district court’s order to clarify that the archivists’ determinations should be reviewed de novo by the court and that no class of documents should remain permanently sealed. These two issues require interpretation of the language of the order. This task is best left to the continued oversight of the district court, which anticipated disputes and provided for their resolution.

Finally, the time limit for victims to provide rebuttal should be a reasonable balance between the interest in allowing rebuttal and the interest in avoiding making the process unduly burdensome. We are not willing to find that the plan provision regarding rebuttal time is an abuse of discretion. However, it is a close question. We therefore invite the district court to reconsider the plan in this respect with a view toward providing more time to file rebuttals.

CONCLUSION

For the foregoing reasons, we affirm the district court’s order.

AFFIRMED.


author: WELLFORD, Circuit Judge.

text:
    In re DETROIT AUTO DEALERS ASSOCIATION, INC. THOMPSON-CHRYSLER-PLYMOUTH, INC.; Joseph P. Thompson; Crestwood Dodge, Inc.; Bob Borst Lincoln-Mercury Sales, Inc., Robert C. Borst; Bob Dusseau Lincoln-Mercury; Robert F. Dusseau; Bob Maxey Lincoln-Mercury Sales, Inc.; Robert Maxey; Crest Lincoln-Mercury Sales, Inc.; William R. Ritchie; Stewart Chevrolet, Inc.; Gordon Stewart; Woody Pontiac Sales, Inc.; Woodrow W. Woody; Jack Demmer Ford; Jack E. Demmer; Al Long Ford, Inc.; Ed Schmid Ford, Inc.; Edward Schmid; Ray Whitfield Ford, Inc.; Ray Whitfield, Petitioners, v. FEDERAL TRADE COMMISSION, Respondent.
    No. 95-3932.
    United States Court of Appeals, Sixth Circuit.
    Argued April 16, 1996.
    Decided May 24, 1996.

      Kenneth S. Wilson (briefed), Stringari, Fritz, Kreger, Ahearn, Bennett & Hunsinger, Detroit, MI, James F. Rill (briefed), Collier, Shannon, Rill & Scott, Washington, DC, Glenn A. Mitchell (argued and briefed), David U. Fierst, Stein, Mitchell & Mezines, Washington, DC, John F. Youngblood (briefed), Abbott, Nicholson, Quilter, Esshaki & Youngblood, Detroit, MI, Lawrence F. Raniszeski (briefed), Bloomfield Hills, MI, Howard E. O’Leary (briefed), Dykema, Gos-sett, Spencer, Goodnow & Trigg, Washington, DC, for Thompson-Chrysler-Plymouth, Inc., Joseph P. Thompson, Crestwood Dodge, Inc., Bob Borst Lincoln-Mercury Sales, Inc., Robert C. Borst, Bob Dusseau Lineoln-Mer-cury, Robert F. Dusseau, Bob Maxey Lincoln-Mercury Sales, Inc., Robert Maxey, Crest Lincoln-Mercury Sales, Inc., William R. Ritchie, Stewart Chevrolet, Inc., Gordon Stewart, Woody Pontiac Sales, Inc., Woodrow W. Woody, Jack Demmer Ford, Jack E. Demmer, A1 Long Ford, Inc., Ed Schmid Ford, Inc., Edward Schmid, Ray Whitfield Ford, Inc., Raymond Whitfield.
    David C. Shonka (argued and briefed), Office of the General Counsel, Federal Trade Commission, Washington, DC, for Federal Trade Commission.
    Before: MERRITT, Chief Judge; LIVELY and WELLFORD, Circuit Judges.
   WELLFORD, Circuit Judge.

Having previously detailed the factual background and issues involved in this difficult and unusual case, see In Re Detroit Auto Dealers Ass’n, 955 F.2d 457 (6th Cir.), cert. denied, 506 U.S. 973, 113 S.Ct. 461, 121 L.Ed.2d 369 (1992), we provide only a cursory review of the facts here. In 1973, a large number of automobile dealerships in the Detroit, Michigan area agreed to close their showrooms on Saturdays and to otherwise uniformly reduce their hours of operation in response to the demands of their sales employees and the efforts of various unions to organize these employees. In 1984, the Federal Trade Commission (“the Commission”) issued an administrative complaint against these dealerships and a number of dealer associations and individual owners or operators (collectively “the dealers”), alleging that the agreement restrained trade in violation of § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45.

An Administrative Law Judge dismissed the complaint on grounds that the agreement was shielded by the nonstatutory labor exemption. The Commission subsequently reversed and entered a remedial order requiring, inter alia, that the dealers open their showrooms a minimum of sixty-four hours per week for a period of one year and direct-' ing the dealer associations to prohibit members from discussing showroom hours among themselves and to expel members who did so.

On appeal, we affirmed the Commission’s order generally, but remanded with instructions for the Commission to “consider carefully the record and the ALJ findings regarding any individual dealers who may be entitled to claim an exemption under the circumstances of bona fide collective bargaining with a union for shorter showroom hours or as a direct result of union directed violence and force for shorter hours.” In re Detroit Auto Dealers Ass’n, 955 F.2d at 468 (emphasis omitted). On June 20,1995, the Commission reaffirmed its previous decision and order. This timely appeal ensued.

In the interim between the initial appeal and the Commission’s decision on remand, a vast majority of the dealers entered into consent decrees with the Commission. Thus, only eleven dealerships and nine individuals —slightly more than ten percent of the original cast of respondents — are presently before this court. The primary contention of the remaining dealers is that, since they were compelled by union-directed force and violence to agree to reduce their operating hours, the Commission should have found the nonstatutory labor exemption applicable.

The principle that an equitable remedy should be enforced only so long as the equities require is one that is deeply rooted in the traditions of common law. A court has continuing jurisdiction to terminate or modify an injunction. As this court stated in Sweeton v. Brown, 27 F.3d 1162 (6th Cir.1994):

Injunctions are one of the law’s most powerful weapons. Ongoing injunctions should be dissolved when they no longer meet the requirements of equity. The law changes and clarifies itself over time. Neither the doctrines of res judicata or waiver nor a proper respect for previously entered judgments requires that old injunctions remain in effect when the old law on which they were based has changed.

Id. at 1166-67. Rufo v. Inmates of the Suffolk County Jail, et al., 502 U.S. 367, 388, 112 S.Ct. 748, 762, 116 L.Ed.2d 867 (1992), recognized the necessity modifying or dissolving injunctions if “the statutory or decisional law has changed to make legal what the decree was designed to prevent.” Id. at 388, 112 S.Ct. at 762. This reasoning holds equal weight when it is the facts, and not the law, which have changed since the imposition of the injunction. “Modification of a consent decree may be warranted when changed factual conditions make compliance with the decree substantially more onerous.” Rufo, 502 U.S. at 384, 112 S.Ct. at 760.

In this case, the change in factual conditions suggests that a modification of the injunction is warranted. Significant changes have occurred in the twelve years since the Commission filed its complaint in this case. By virtue of the consent decrees, most of the dealers are now open on Saturdays and have adopted expanded hours of operation. Furthermore, the campaign of violence and intimidation that allegedly induced the remaining dealers to shorten their hours of operation is a thing of the past; the dealers and their sales employees are no longer at odds over this issue. Finally, at oral argument, counsel for the petitioners stated that there was no longer any agreement in effect to set hours of dealership operation in the Detroit area.

“[A] party should be entitled to modification whenever the original decree could not properly have been issued on the state of facts that now exists; when such a change has taken place, no analytic distinction can be validly drawn between change of fact and change of law.” Developments in the Law: INJUNCTIONS, 78 Harv.L.Rev. 994, 1082 (1965). If this case were to be brought in front of the Commission today on the present facts, the previous injunction would not be entered against the petitioners today. This case is therefore REMANDED to the Commission to hold a hearing with the purpose of modifying the remedial order in this case. The parties should be allowed to present evidence relevant to modification and the current conditions in the Detroit automobile market.

      . Although Thompson Chrysler-Plymouth, Inc. and Joseph P. Thompson are listed as respondents in this appeal, the Commission informed this court at oral argument that it was no longer proceeding against them.

      . The original appeal in this case involved approximately 90 dealerships, 18 dealer associations and 78 individual owners or operators.