author: PER CURIAM:

text:
    TUALATIN ELECTRIC, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner, and International Brotherhood of Electrical Workers, Local Union No. 48, Intervenor.
    Nos. 93-70775, 93-70843.
    United States Court of Appeals, Ninth Circuit.
    Submitted March 4, 1996.

    Decided May 29, 1996.

      Thomas M. Triplett, Schwabe, Williamson & Wyatt, Portland, Oregon, for petitioner, cross-respondent.
    David A. Fleischer, Senior Attorney, and Aileen A. Armstrong, Deputy Associate General Counsel, National Labor Relations Board, Washington, D.C., for respondent, cross-petitioner.
    Norman D. Malbin, Portland, Oregon, for intervenor.
    Before: REINHARDT, KOZINSKI, and FERNANDEZ, Circuit Judges.

       The panel unanimously finds this case suitable for submission on the record and briefs without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4.

   PER CURIAM:

Tualatin Electric, Inc. (Tualatin) seeks review of the National Labor Relations Board’s (NLRB) affirmance and adoption of an Administrative Law Judge’s finding that the Regional Director for Region 19 of the Board appropriately set aside an informal settlement agreement. The NLRB and intervenor International Brotherhood of Electrical Workers, Local No. 48 (Union) cross-petition for enforcement of the Board’s order and decision holding that Tualatin violated sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158. We grant the petition for enforcement.

I. Background

Tualatin is an electrical contractor in the state of Oregon, which worked on a retail store construction project in Wilsonville, Oregon named “Project Thunder.” Tualatin’s employees are not represented by any labor organization.

Edward Campbell, a member of the Union, agreed to “salt” a job with Tualatin. Campbell obtained employment with Tualatin at Project Thunder. As an employee of the Union and Tualatin, Campbell attempted to generate interest and enthusiasm for the Union and to provide the Union with names and telephone numbers of workers. In return, the union paid him supplemental wages and benefits to bring his compensation to the amount he would have received had he been working for a union employer.

Campbell began work at Tualatin as a journeyman electrician on July 6, 1992. At Project Thunder, Campbell attempted to organize Tualatin’s workers before and after work and during breaks. His organizational efforts were brought to the attention of his supervisor and he was subsequently discharged.

The Union filed an unfair labor practice charge on July 20, 1992 against Tualatin. A month later, the NLRB’s Regional Director for Region 19 approved an informal settlement agreement between Tualatin and the Union, requiring, among other remedies, that Tualatin offer Campbell “reinstatement.”

Campbell reported to Project Thunder on August 24,1992, but was immediately sent to work on Tualatin’s Wal-Mart project in Salem, Oregon. Campbell quit working on the Wal-Mart project after two days because the Union objected to his reassignment to the Wal-Mart project on the ground that it did not constitute adequate reinstatement under the terms of the settlement agreement.

On September 29, 1992, the Regional Director vacated and set aside the settlement agreement because Tualatin had failed to comply with the terms of the agreement and issued a complaint against Tualatin. The Administrative Law Judge (ALJ) heard the case shortly thereafter. The complaint alleged 1) that Tualatin’s project supervisor threatened employees with discharge if they engaged in union activities, in violation of section 8(a)(1) of the National Labor Relations Act, 2) that Tualatin discharged Campbell because of his union activities, in violation of sections 8(a)(1) and (3) of the Act, and 3) that Tualatin failed to comply with the terms of the then-vacated informal settlement agreement. Tualatin denied the allegations and asserted that the settlement agreement had been improperly set aside and should be reinstated. The ALJ found that Tualatin violated section 8(a)(1) of the National Labor Relations Act by coercively interrogating employees about their union activities and threatening them with discharge. The ALJ also found that Campbell was an “employee” under the Act even though the Union was paying him to organize Tualatin’s workers and that Tualatin’s decision to discharge Campbell was motivated by Campbell’s union activities, in violation of sections 8(a)(1) and (3) of the Act. Finally, the ALJ found that the settlement agreement was properly set aside because Campbell’s reinstatement to the Wal-Mart project did not constitute sufficient compliance with the agreement given that his job at Project Thunder was still available.

The NLRB adopted the ALJ’s decision and order, Tualatin Electric Inc., 312 NLRB 129, 1993 WL 361183 (1993), awarding Campbell back pay, requiring Tualatin to expunge the discharge from Campbell’s employment records, prohibiting Tualatin from harassing its employees about their union status, and ordering Tualatin to reinstate Campbell at the Project Thunder site with back pay.

II. Analysis

We have jurisdiction pursuant to 29 U.S.C. § 160(e) & (f) to review the Regional Director’s decision to set aside an informal settlement where, as here, that decision has been affirmed by the Board. See, e.g., City Cab Co. of Orlando v. NLRB, 787 F.2d 1475, 1477 (11th Cir.), cert. denied, 479 U.S. 828, 107 S.Ct. 108, 93 L.Ed.2d 57 (1986).

Tualatin challenges the ALJ’s and the NLRB’s decisions on a single ground: it contends that the Regional Director improperly set aside the settlement agreement, arguing that it did not violate the reinstatement provision. Tualatin contends that Campbell voluntarily accepted “substantially equivalent” employment on another project. Tualatin further contends that it should have the right to select the location where its employees are to be reinstated because the construction industry has “no fixed, immutable location where an employee reports to work to perform services.” The NLRB seeks enforcement of its decision and order. Tualatin concedes that substantial evidence supports the NLRB’s finding that it violated section 8(a)(1) and (3) of the Act and offers no other argument against enforcement of the decision and order. Thus, unless the Board abused its discretion in concluding that the settlement agreement was properly set aside, we should grant enforcement.

Decisions of the National Labor Relations Board must be upheld if the Board’s factual findings are supported by substantial evidence and if it has correctly applied the law. NLRB v. Champ Corp., 933 F.2d 688, 691 (9th Cir.), cert. denied, 502 U.S. 957, 112 S.Ct. 416, 116 L.Ed.2d 437 (1991). If evidence supports two conflicting views, the Board’s findings must be allowed to stand even though the reviewing court might have reached a different conclusion. Id.

In this case, the NLRB ruled that the term “reinstatement” in the settlement agreement had the meaning it would normally have been accorded by the Board had it entered a remedial order in response to an employer’s violation of the Act. The Board adopted the ALJ’s conclusion “that reinstatement is generally to the position the discriminates previously held.” Tualatin, 312 NLRB at 132. The ALJ explained:

This is so because the parties were entering into a legal settlement of a charge alleging unfair labor practices under the Act on agency printed forms and were submitting the settlement for the approval of the Regional Director. Terminology used in such a context may fairly be held to bear the technical meanings of the trade. Language descriptive , of actions to be taken in settlement of a unfair labor practice allegation—such as the term “reinstatement”—are surely terms of art which carry the meaning assigned them by the Board in its decisions.

Id. The ALJ also noted that “[a] different position or a similar position at a different location or facility is normally insufficient.” Id.

We hold that the Board did not abuse its discretion in approving the setting aside of the settlement agreement and that its interpretation of the term “reinstatement” in that agreement is consistent with its prior decisions. We also hold that its finding that Campbell’s position at Project Thunder still existed is supported by substantial evidence. The NLRB’s conclusion that the term “reinstatement” in the settlement agreement meant restoring Campbell to the position in which he would have been working, absent the unfair labor practice at issue, is a correct application of the law. See Kallmann v. NLRB, 640 F.2d 1094, 1103 (9th Cir.1981) (“The function of the remedy in unfair labor cases is to restore the situation, as nearly as possible, to that which would have occurred but for the violation.”). For reinstatement orders to restore the situation as nearly as possible to that which would have existed if the discrimination had not occurred, unlawfully discharged workers should ordinarily be returned to their original jobs so that other employees are made aware, through the dis-criminatee’s return, that their rights to engage in concerted activity will be protected. See, e.g., M Restaurants, Inc., 228 NLRB 930, 1977 WL 8470 (1977), supplemented, 288 NLRB 1575, 1978 WL 8379 (1978), enf. granted, 621 F.2d 336 (9th Cir.1980).

In short, the employer must offer reinstatement to the former position if it still exists. NLRB v. Jackson Farmers, Inc., 457 F.2d 516, 518 (10th Cir.1972). An offer for a “substantially equivalent” position is permissible only when the original position from which the diseriminatee was unlawfully terminated is no longer available. Id.

[W]hen employees are unlawfully discharged and the NLRB orders reinstatement to their former or substantially equivalent positions, the employer does not have a choice of offering either the former or an equivalent position. If the former position still exists, he must offer that one.

Id.; See also NLRB v. Draper Corp., 159 F.2d 294, 297 (1st Cir.1947) (stating that remedial principles “require reinstatement of the employee to his former position wherever possible, but if such position is no longer in existence then to a substantially equivalent position”).

There is substantial evidence in support of the NLRB’s determination that Campbell's job at Project Thunder remained available following Tualatin’s reinstatement offer. Thirty-five to forty-six electricians were working on Project Thunder during the week before and after Campbell was offered reinstatement at the Wal-Mart site. Also, some of the employees at the Wal-Mart site were working simultaneously at Project Thunder. Moreover, in its reply brief, Tua-latin concedes that the record contains substantial evidence supporting the NLRB’s finding.

Finally, Tualatin contends that the requirement that discriminatees be reinstated to their former positions should not be applied to employers in the construction industry. Tualatin offers no authority for this contention. The Board did not find this argument persuasive, Tualatin, 312 NLRB at 133, and we agree with the Board that no such exception for the construction industry exists.

III. Conclusion

We conclude that the NLRB did not abuse its discretion in approving the Regional Director’s setting aside of the informal settlement agreement. Because the Board’s factual findings are supported by substantial evidence and because the Board correctly applied the law, we grant the petition for enforcement of its decision and order in their entirety.

PETITION FOR ENFORCEMENT GRANTED.

      . "Salting a job” is obtaining employment with a non-union employer and then organizing its employees for the union. The term may be derived from the phrase "salting a mine," which is the artificial introduction of metal or ore into a mine by subterfuge to create the false impression that the material was naturally occurring.

      . The settlement agreement provided that Tuala-tin would “offer reinstatement to employee Ed Campbell” without specifying the particular location to which he was to be reinstated.

      . Following its appeal to this court, Tualatin withdrew its argument that a company worker being paid to help a union organize the company is not an “employee” under the National Labor Relations Act in light of the Supreme Court’s decision in NLRB v. Town & Country Electric Inc., -U.S. -, 116 S.Ct. 450, 133 L.Ed.2d 371 (1995), which rejected that argument.

      .If the Project Thunder site no longer existed, Tualatin was ordered to reinstate Campbell to a substantially equivalent position to which he would have been transferred had he not been unlawfully terminated.

      . The Union contends that the NLRB’s approval of the Regional Director’s decision to set aside the settlement agreement is not reviewable by this court before the Board has issued a reviewable order because it amounts to a prosecutorial decision rather than an adjudicatory one. The union would be correct if Tualatin had tried to appeal directly to this court. NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 122-25, 108 S.Ct. 413, 420-21, 98 L.Ed.2d 429 (1987). That not being the case, we address the merits.

      . There is no authority for Tualatin’s suggestion that this requirement should be different if the former job is not likely to exist for a' significant period of time in the future. If it exists at the time of reinstatement, as was true in this case, the diseriminatee should be given the option of returning to that position. Draper Corp., 159 F.2d at 297.


source: Caselaw Access Project

author: DAVID R. THOMPSON, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ronald David JONES, Jr., Defendant-Appellant.
    No. 94-50530.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted May 10, 1996.
    Decided June 3, 1996.

      D. Wayne Breehtel, Solana Beach, California, for defendant-appellant.
    Michael G. Wheat, Assistant U.S. Attorney, argued, Roger W. Haines, Jr., Assistant U.S. Attorney, on the brief, San Diego, California, for plaintiff-appellee.
    Before: FLOYD R. GIBSON, JOHN T. NOONAN, Jr. and THOMPSON, Circuit Judges.

      The Honorable Floyd R. Gibson, Senior Circuit Judge for the Eighth Circuit, sitting by designation.

   DAVID R. THOMPSON, Circuit Judge:

Defendant Ronald David Jones, Jr. appeals his jury conviction for armed bank robbery, 18 U.S.C. § 2113(a) & (d), use or carrying of a firearm during commission of a crime of violence, 18 U.S.C. § 924(c)(1), and being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). Jones makes four arguments on appeal: (1) his curbside identification by three bank employees was so unduly suggestive it violated his due process rights; (2) there was no probable cause for his arrest; (3) there was insufficient evidence presented at trial to support the finding that he possessed or used a firearm during the robbery; and (4) he was denied a fair trial because statements the prosecutor made in his closing argument were improper and prejudicial.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm Jones’s conviction.

I

FACTS

On January 5, 1994, a man with a mustache entered the Grossmont Branch of Wells Fargo Bank in San Diego. He was wearing blue pants, a blue jacket, sunglasses and a baseball cap. He also appeared to be wearing a wig of brown hair. When he reached the teller, Ms. Seal, he gave her a note which said, “This is a robbery. I have a gun. Don’t push any alarms. And don’t want dye packs.” The robber told the teller he wanted hundreds and fifties, and that he had a gun.

Seal did not believe the robber actually had a gun, but turned to the teller next to her, Mr. Mahoney, and asked if he had any large bills. Mahoney who was closing up for the day was putting his cash away in a grey metal box to take back to the vault. As Mahoney thumbed through the cash to find large bills, the robber demanded the box, reiterating that he had a gun. The robber then reached over the counter, grabbed the box and ran out of the bank.

The bank manager, Mr. Warner, was standing behind the tellers during the robbery. "He followed the robber outside, briefly lost sight of him, but then saw a yellow cab number 557 or 577 take off from the parking lot. Warner returned to the bank and called 911 to report the robbery.

Officer David Lachapelle received a 911 radio operator’s call alerting him to the bank robbery and giving him a description of the robber including his possible use of a yellow cab number 557 or 577 as an escape vehicle. Interstate 8 was considered a possible escape route. As Officer Lachapelle entered the onramp to Interstate 8 he saw a yellow cab traveling in the same direction he was headed. He pulled up to the cab and saw that it was number 557. He did not see any passenger in the cab until he pulled alongside it; then he saw a passenger crouching down in the back seat. The cab turned on its code blue lights indicating that the driver was in distress.

Officer Medero, who had joined Officer Lachapelle, pulled the cab over on the shoulder of the highway. Officer Medero ordered the driver out of the cab. Defendant Jones was the passenger in the back seat and he continued to crouch down until ordered out of the cab. A search of the cab revealed sunglasses, a baseball cap, a couple of hairpieces, and a grey metal box full of money. Under the back seat of the cab the police found a loaded revolver, holster, and a box of ammunition.

About ten to fifteen minutes after the robbery, Officer Oliver drove Seal, Mahoney, and Warner to the shoulder of Interstate 8 where Jones was in custody, to see if he matched the description of the robber. On the way to the location, these witnesses were read a “field identification admonition.” They were instructed to remain silent as they drove by the subject, until Officer Oliver asked them individually for comments.

When they drove by the area the first time, Jones was inside the patrol ear. The only visible person in the area who was not in a police uniform was the cab driver. Both Seal and Warner said they had not seen the robber, while Mahoney thought he was in the cab. Officer Oliver left the highway and attempted to reapproach the area, but the road they were on was ten feet lower than the highway. Nevertheless, catching sight of Jones’s face, Warner was sure Jones was the robber and wanted to know the whereabouts of the rest of the stuff Jones had been wearing. Officer Oliver got back on the highway and passed by the scene again. This time Jones was standing near two police officers who were holding up the wig, baseball cap, and sunglasses found in the cab. All three witnesses declared with certainty that Jones was the robber.

II

DISCUSSION

A. Curbside Identification

Jones argues the identification of him by the three bank employees as he stood on the side of the highway was so suggestive it violated his right to due process. We review this issue de novo. United States v. Mattar-Ballesteros, 71 F.3d 754, 769 (9th Cir.1995).

An identification procedure that is so unduly suggestive as to give rise to a substantial likelihood of mistaken identification may violate due process. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972). To determine whether an identification procedure is impermissibly suggestive, we review the totality of the circumstances. Biggers, 409 U.S. at 199, 93 S.Ct. at 382; Matta-Ballesteros, 71 F.3d at 769. The factors we consider in evaluating the likelihood of misidentification include: (1) the witness’s opportunity to view the criminal at the time of crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382-83; Mattar-Ballesteros, 71 F.3d at 769.

In the present case, the witnesses had the opportunity during the robbery to get a good, complete look at the robber. They were quite close to him, and their attention was focused on him as each of them knew he was robbing the bank. The descriptions they gave to the police were accurate, and with the exception of variations in their estimates of the robber’s height, their descriptions were consistent. Ten to fifteen minutes after the crime, the witnesses were taken to where Jones was in custody on the shoulder of the freeway. Each witness confidently identified him as the bank robber.

The circumstances of the drive-by identification were clearly suggestive. Other than the taxi driver, Jones was the only civilian presented for identification. He was surrounded by police officers who were holding up several items found in the back of the cab which matched the disguise worn by the bank robber.

We have previously upheld suggestive procedures, recognizing the benefit of permitting witnesses to make an identification while the image of the perpetrator is still fresh in their minds. See United States v. Kessler, 692 F.2d 584, 585 (9th Cir.1982). The fact that only one suspect is presented for identification does not make the identification procedure invalid. Id. As we noted in Kessler, “where the procedure employed does not give rise to ‘a very substantial likelihood of irreparable misidentification,’ identification evidence is for the jury to weigh.” Id. at 587 (quoting Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977)).

In fight of the factors considered above, we conclude there was not a substantial likelihood of misidentification by the witnesses’ curbside identification of Jones.

B. Probable Cause

Jones argues the district court erred by denying his motion to suppress evidence because the evidence was obtained as a result of his invalid arrest. Jones contends his arrest was invalid because it was not supported by probable cause.

We review a motion to suppress and the determination of probable cause de novo. United States v. Valencia, 24 F.3d 1106, 1108 (9th Cir.1994). “Probable cause to arrest exists when there are reasonably trustworthy facts which, given the totality of the circumstances, are sufficient to lead a prudent person to believe that the suspect is committing or has committed a crime.” United States v. Arzate-Nunez, 18 F.3d 730, 735 (9th Cir.1994).

Although the parties dispute whether Jones was arrested before or after Lacha-pelle looked into the cab and found the items finking Jones to the robbery, we conclude the officers had probable cause to arrest Jones when he got out of the cab. This conclusion is based on the facts that Jones was in yellow cab number 557 as identified by the bank manager, the cab had been located where one would expect the robber’s getaway car to be, Jones was crouched down in the back seat consistent with an attempt to avoid detection, the cab turned on its code blue fights indicating a problem, and when Jones got out of the cab the officers could see that he fit the general description of the bank robber. The motion to suppress was properly denied.

C. Evidence of Possession

A Smith & Wesson .357 caliber handgun was found under the back seat of the cab. Jones contends there was insufficient evidence to support the findings that he possessed the gun at all, that he possessed it when he robbed the bank, or that he “used” it during the robbery within the meaning of § 2113(d).

Evidence to support a conviction is sufficient if, viewing the evidence in the fight most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Vgeri, 51 F.3d 876, 879 (9th Cir.1995).

Section 2113(d) provides:

Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both.

18 U.S.C. § 2113(d).

The evidence is simple. During the bank robbery, Jones claimed to have a gun, but no one ever saw a gun. After Jones got out of the cab, one of the officers found a gun and holster under the back seat, along with the box of money taken from the bank, and items consistent with the robber’s disguise. No fingerprints were lifted from the gun.

The presence of the gun under the seat of the cab which Jones had just vacated is sufficient evidence to support a finding that he possessed the gun in the cab. United States v. Gutierrez, 995 F.2d 169, 171 (9th Cir.1993). The question is whether there was sufficient evidence that Jones possessed the gun during the robbery.

When a defendant claims to possess a gun during a robbery, a jury may reasonably infer that the defendant possessed a gun during the robbery. United States v. Ray, 21 F.3d 1134, 1141 (D.C.Cir.1994). Here, Jones claimed to have a gun during the robbery, and a gun was later found in his possession among the other items of the robbery. We hold this evidence is sufficient to support the inference that Jones possessed the gun during the robbery.

The next question is whether there was sufficient evidence that Jones used the gun during the robbery. Mere possession of a concealed gun- during a robbery without revealing it or referring to it is not sufficient to support a violation of section 2113(d). See id.; United States v. Perry, 991 F.2d 304, 309 (6th Cir.1993). The defendant must “use” the gun in the commission of the crime. 18 U.S.C. § 2113(d). As the Supreme Court recently decided in the context of 18 U.S.C. § 924(c)(1), “use” includes “brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm.” Bailey v. United States, — U.S. -,-, 116 S.Ct. 501, 508, 133 L.Ed.2d 472 (1995). The Court went on to note that this understanding of the term “compels the conclusion that even an offender’s reference to a firearm in his possession could satisfy” the “use” requirement of section 924(c)(1). Id.

Here, Jones told the bank tellers he had a gun, and he told them this to get them to comply with his demand for money. Even though no one saw the gun, the evidence was sufficient to prove Jones’s “use” of the gun during the robbery for the purpose of 18 U.S.C. § 2113(d). See Ray, 21 F.3d at 1141.

D. Prosecutor’s Comments

Jones contends the prosecutor’s closing argument misled the jury regarding the suspect status of the cab driver. Because no objection was made at trial, Jones concedes the “plain error” standard of review applies. See United States v. Williams, 990 F.2d 507, 510 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 333, 126 L.Ed.2d 278 (1993). “Plain error is highly prejudicial error affecting substantial rights, and is found only in exceptional circumstances.” Id. at 511 (quoting United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir.1989)).

Jones challenges on appeal the following portion of the prosecutor’s closing argument:

Well, you might say, well, how do we know the Defendant put the gun there? This is a public conveyance — a taxicab. I don’t think it takes much common sense to realize that cab drivers who transport people around town that they don’t know would not leave a loaded firearm and a box of ammunition underneath the seat in the cab where people are sitting behind him. That doesn’t make sense that a cab driver would leave a gun hidden underneath the seat.

Jones asserts that the cab driver was suspected of being involved in the robbery. The record reflects discussion at pretrial hearings about whether the cab driver would be tried with Jones. Because the prosecutor was aware of the cab driver’s suspect status, Jones argues it was improper to paint the cab driver as an innocent civilian. If the jury had been aware that the cab driver was suspected of being an accomplice, Jones contends there is a strong likelihood that the outcome of the case would have been different. Jones also argues the prosecution improperly appealed to the jury’s “passion and prejudice.”

Jones fails to explain how the outcome of the case would have been different if the jury had been aware of the cab driver’s status as a possible suspect. If the cab driver was in fact a planned getaway driver, Jones’s presence in the car would resolve any doubts of his identity as the bank robber. Although the gun might have belonged to the cab driver, its presence in the back of the cab strongly supports Jones’s possession of it. The prosecutor’s comments about the cab driver do not amount to plain error.

We have also examined other portions of the prosecutor’s closing argument challenged by Jones and conclude the challenged comments do not amount to plain error.

AFFIRMED.


author: GOODWIN, Circuit Judge:

text:
    Donald G. SAGER, Petitioner-Appellee, v. Manfred MAASS, Warden Oregon State Penitentiary, Respondent-Appellant.
    No. 95-35300.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted May 6, 1996.
    Decided June 3, 1996.
    Michael D. Reynolds, Assistant Solicitor General, Salem, Oregon, for respondent-appellant.
    Michael R. Levine, Assistant Federal Public Defender, Portland, Oregon, for petitioner-appellee.
    Before: GOODWIN and SCHROEDER, Circuit Judges, and LEGGE, District Judge.

       Honorable Charles A. Legge, United States District Judge for the Northern District of California, sitting by designation,

   GOODWIN, Circuit Judge:

Manfred Maass (“the state”) appeals an order granting Donald Sager a writ of habe-as corpus. The district court held that Sager had been denied the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution. We affirm the judgment substantially for the reasons given by the district court in its published memorandum, Sager v. Maass, 907 F.Supp. 1412 (D.Or.1995).


author: MICHAEL DALY HAWKINS, Circuit Judge:

text:
    Robert SMITH, aka Robert Austin; Reynaud D. Jones; Clifford Rubin, Plaintiffs-Appellants, v. Michael JACKSON; Mijac Music; Joseph Jackson; Lionel Richie; Rod Temperton; Rodsongs; USA for Africa Foundation, aka United Support of Artists for Africa; Warner Brothers Publications, Inc.; Columbia Pictures Publication; Brockman Music; Almo Publications; Warner-Tamerlane Publishing Co.; CBS, Inc.; Quincy Jones; MJJ Productions, Inc., Defendants-Appellees. Robert SMITH, aka Robert Austin; Reynaud D. Jones; Clifford Rubin, Plaintiffs-Appellees, v. Michael JACKSON; Defendant, and Rod Temperton; Defendant-Appellant. Robert SMITH, aka Robert Austin; Reynaud D. Jones; Clifford Rubin, Plaintiffs-Appellees, v. Michael JACKSON; Mijac Music; Joseph Jackson; Lionel Richie; USA for Africa Foundation, aka United Support of Artists for Africa; Warner-Tamerlane Publishing Corp.; Warner Bros. Publications, Inc.; Quincy Jones; MJJ Productions, Inc.; Sony Records, successor-in-interest to CBS Records, Inc., Defendants-Appellants.
    Nos. 94-55355, 94-55616 and 94-55617.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 9, 1996.
    Decided June 5, 1996.

      Robert H. Rotstein and Robyn-Marie Lyon Monteleone, McDermott, Will & Emery, Los Angeles, California, and Gerald A. Margolis and Ronald M. Monitz, Manatt, Phelps & Phillips, Los Angeles, California, for defendants-appellees-cross-appellants.

      Douglas M. Grimes, Gary, Indiana, and Howard Manning, Jr., Los Angeles, California, for plaintiffs-appellants-cross-appellees.
    Before: GOODWIN and HAWKINS, Circuit Judges, and MARQUEZ, District Judge.

       Honorable Alfredo C. Marquez, Senior United States District Judge for the District of Arizona, sitting by designation.

   MICHAEL DALY HAWKINS, Circuit Judge:

Appeliants/Cross-Appellees Robert Smith and Reynaud Jones brought copyright infringement and RICO actions against appel-lees/cross-appellants, including Michael Jackson, Rod Temperton, and Lionel Richie. Appellants argue that (1) the district court erred in dismissing appellants’ RICO claims pursuant to Fed.R.Civ.P. 12(b)(6), (2) the court erred in granting partial summary judgment in appellees’ favor, and (3) the court’s jury instructions improperly permitted the jury to find for appellees without considering appellees’ access to appellants’ copyrighted works. Appellees cross-appealed the court’s decision to deny attorney’s fees. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

Appellants’ copyright claims were based on appellees’ alleged infringement of six of appellants’ songs. Appellants had registered copyrights on each song. Appellants did not allege infringement of the lyrics or copying of large parts of the music, but rather alleged that appellees misappropriated musical “motives” from each of appellants’ works. More specifically, appellants alleged that:

* Jackson’s and Richie’s “We Are The World” infringed on one motive from appellants’ “If There Be You”
* Jackson’s and Richie’s “We Are The World” infringed on two motives from appellants’ “What Will Become of the Children”
* Jackson’s “The Girl is Mine” infringed on one motive from appellants’ “Don’t Let the Sunshine Catch You Crying”
* Jackson’s “The Girl is Mine” infringed on two motives from appellants’ “Happy Go Lucky Girl”
* Temperton’s “Thriller” infringed on four motives from appellants’ “Run on Man-child”
* Jackson’s “Another Part of Me” infringed on two motives from appellants’ “Send Your Love”

In addition to the copyright infringement claims, appellants alleged that appellees’ dissemination and marketing of the songs were mail and wire fraud predicate acts under RICO. The district court dismissed appellants’ RICO counts for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). The court concluded that although appellants claimed to allege mail and wire fraud as predicate acts, their RICO claims were actually based on copyright infringement. Because copyright infringement is not a RICO predicate act under 18 U.S.C. § 1961, the court dismissed appellants’ RICO claims.

The district court then granted appellees’ motion for summary judgment as to all but three of appellants’ infringement claims. The court concluded that as to all but the three surviving allegations of infringement, appellants’ experts had faded to rebut appellees’ expert testimony that appellants’ allegedly infringed motives were unprotected “scenes a faire.”

The three surviving claims went to trial. The jury returned a special verdict for appel-lees on each of the three infringement claims. The jury concluded that none of appellants’ works would be found to be substantially similar to appellees’ works by the ordinary lay listener.

The district court denied appellees’ post-trial motion for attorney’s fees. The district court determined that appellants had not brought their claims in bad faith, that the claims were not frivolous, and that the claims had legal and factual support, and thus concluded that appellees’ were not entitled to attorney’s fees under the Copyright Act, 17 U.S.C. § 505.

Appellants timely appealed the dismissal of the RICO counts, the partial summary judgment, and alleged trial errors, and Temper-ton and the Jackson appellees timely cross-appealed the denial of attorney’s fees.

II. DISCUSSION

A. Did The District Court Err In Dismissing Appellants’ RICO Causes Of Action For Failure To State A Claim?

Standard of Review

A dismissal for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) is a question of law reviewed de novo. Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir.1995). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Everest & Jennings v. American Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir.1994). A complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts that would entitle her to relief. Id.

Analysis

Liability under RICO, 18 U.S.C. § 1962(c), requires (1) the conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Sun Savings & Loan Assoc. v. Dierdorff, 825 F.2d 187, 191 (9th Cir.1987). “Racketeering activity” is any act indictable under several provisions of U.S.C. Title 18, including the predicate acts alleged in this case, mail fraud and wire fraud. 18 U.S.C. § 1961; see generally Sun Savings & Loan Assoc., 825 F.2d at 191.

The district court concluded that appellants’ RICO claims were entirely based on copyright infringement, which is not a RICO predicate act under 18 U.S.C. § 1961, and dismissed them pursuant to Fed.R.Civ.P. 12(b)(6). Appellants argue that their claims were properly based on the predicate acts of mail and wire fraud. We affirm.

The district court did not err in concluding that appellants’ RICO claims were reformulated copyright infringement claims. Appellants allege in their RICO counts the same activity alleged in their infringement claims: the unauthorized use and dissemination of appellants’ copyrighted works. Indeed, without the alleged infringement of copyright, none of appellees’ activity in disseminating their songs could be “fraudulent” and none of appellants’ RICO claims could survive. Because appellants’ RICO counts do no more than allege copyright infringement under the label of mail and wire fraud, and copyright infringement is not a predicate act under RICO, the district court properly concluded that appellants failed to state a claim.

Appellants’ arguments are not persuasive. Appellants admit that the RICO predicate acts are linked with defendants’ alleged copyright infringement. Appellants conclude, however, that because the copyright infringement and RICO claims are alleged in separate counts and have a separate jurisdictional basis, the allegations are “separate and distinct.” Of course, alleging separate RICO counts does not mean appellants have successfully stated a RICO claim.

Appellants also assert that “[n]ot all of the predicate acts were assigned to carrying out the copyright infringement.” Appellant, however, does not cite any examples of predicate acts unrelated to the alleged infringement of appellants’ copyrights, nor could we find any non-copyright related predicate acts in appellants’ complaint. Accordingly, we affirm the district court’s decision to dismiss appellants’ RICO counts for failure to state a claim.

B. Did The District Court Err In Granting Appellees’ Motion For Summary Judgment As To All But Three Of Appellants’ Copyright Infringement Claims?

Standard of Review

The grant of summary judgment is reviewed de novo. Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1044 (9th Cir.1994). However, “summary judgment is not highly favored on questions of substantial similarity in copyright cases.” Shaw v. Lindheim, 919 F.2d 1353, 1355 (9th Cir.1990) (citation omitted). When the issue is whether two works are substantially similar, summary judgment is appropriate if “no reasonable juror could find substantial similarity of ideas and expression, viewing the evidence in the light most favorable to the nonmoving party.” Kouf, 16 F.3d at 1045. Where reasonable minds could differ on the issue of substantial similarity, summary judgment is improper. Shaw, 919 F.2d at 1355.

Analysis

To establish a successful copyright infringement claim, a plaintiff must show that (1) she owns the copyright, and (2) defendant copied protected elements of the copyrighted work. Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir.1994), cert. denied, — U.S.-, 115 S.Ct. 1176, 130 L.Ed.2d 1129 (1995). Because direct evidence of copying is not available in most cases, plaintiff may establish copying by showing that defendant had access to plaintiffs work and that the two works are “substantially similar” in idea and in expression of the idea. Id.

We use a two-part test in determining whether two works are substantially similar. Id. the “extrinsic” test considers whether two works share a similarity of ideas and expression based on external, objective criteria. Id.; Shaw, 919 F.2d at 1356-57. Analytic dissection of a work and expert testimony are appropriate to the extrinsic test. Apple Computer Inc., 35 F.3d at 1442. If plaintiff satisfies the extrinsic test, then the subjective “intrinsic test” asks whether an “ordinary, reasonable observer” would find a substantial similarity of expression of the shared idea. Id.

For summary judgment, only the extrinsic test is relevant. Kouf, 16 F.3d at 1045; Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1477 (9th Cir.), cert. denied, 506 U.S. 869, 113 S.Ct. 198, 121 L.Ed.2d 141 (1992); Shaw, 919 F.2d at 1359. If plaintiff satisfies the extrinsic test, the intrinsic test’s subjective inquiry must be left to the jury and summary judgment must be denied. Kouf, 16 F.3d at 1045; Brown Bag Software, 960 F.2d at 1477; Shaw, 919 F.2d at 1359. In applying the extrinsic test, we require a lower standard of proof on substantial similarity when a high degree of access is shown. Shaw, 919 F.2d at 1361-62 (describing the “Inverse Ratio Rule”); Krofft, 562 F.2d at 1172 (holding that high “degree of access justifies a lower standard of proof to show substantial similarity”).

Appellants make essentially four arguments against the district court’s decision to grant partial summary judgment. First, appellants argue that the court improperly granted summary judgment based on scenes a faire expert testimony 'without considering appellants’ “presumption of originality.” Second, appellants contend that even if appellees established that the motives at issue were scenes a faire, appellees never established that appellants had access to the scenes a faire motives before writing then-songs and thus summary judgment was inappropriate. Third, appellants argue that the court erred in considering scenes a faire evidence because when access to a plaintiffs works is conceded, possibility of a prior common source is irrelevant. Finally, appellants assert that the declarations of appellants’ experts rebutted appellees’ scenes a faire evidence. We examine each of appellants’ arguments in turn.

1. Should A “Presumption of Originality” Have Rebutted Appellees’ Scenes A Faire Evidence?

Appellants contend that the district court did not give enough weight to the “presumption of originality” created by appellants’ Certificates of Copyright Registration in deciding whether the relevant motives in appellants’ songs were scenes a faire. Appellees argue that the presumption of originality is not applicable to an inquiry into whether appellants’ motives were scenes a faire. We agree with appellees.

The presumption of originality created by a Certificate of Registration is not relevant to the district court’s scenes a faire determination. A Certificate of Registration only creates a rebuttable presumption of originality applicable to a defendant’s attack on the validity of a plaintiffs copyright. North Coast Industries v. Jason Maxwell, Inc., 972 F.2d 1031, 1033 (9th Cir.1992) (“Under our copyright law, the registration of the copyright certificate itself establishes a pri-ma facie presumption of the validity of the copyright in a judicial proceeding_”). This court has neither transferred the presumption of originality from the “validity” inquiry to the “copying” inquiry nor converted it into a presumption that parts of a plaintiffs work are not scenes a faire. See, e.g., Apple Computer, Inc., 35 F.3d at 1444-45 (considering scenes a faire inquiry and originality inquiry separately). Accordingly, the district court did not err by failing to address appellants’ “presumption of originality” in deciding whether similarities between appellants’ and appellees’ work were attributable to “scenes a faire” motives.

2. Should Appellees Have Been Required To Prove That Appellants Had Access To Scenes a Faire Motives?

Appellants contend that the district court should have required appellees to prove that appellants had access to the scenes a faire motives before granting summary judgment. We disagree.

Appellants misapprehend the relevant law. A scenes a faire finding, unlike a finding of copyright validity, does not turn on whether plaintiff copied prior art. Rather, the court examines whether “motive” similarities that plaintiffs attribute to “copying” could actually be explained by the commonplace presence of the same or similar motives within the relevant field. Thus, although a defendant must prove “access” when challenging the validity of a plaintiffs copyright, see, e.g., North Coast Industries, 972 F.2d at 1033-34, this court has not required a showing of access when defendant asserts that any similarity in works is attributable to shared scenes a faire motives. See, e.g., Apple Computer, Inc., 35 F.3d at 1444.

Accordingly, we find that the district court did not err by not requiring appellees to prove appellants had access to the relevant scenes a faire motives.

3. Did The Court Err In Considering Scenes A Faire Evidence After Appel-lees’ Access To Appellants’ Works Had Been Conceded?

Appellants argue that because access to appellants’ works was conceded in this case, the district court did not need to consider whether the allegedly copied motives were scenes a faire. We reject appellants’ argument.

Appellants again depend on inapposite law. Although establishing access eliminates the need for a plaintiff to establish a “striking similarity” between plaintiffs and defendant’s work, proof of access has no bearing on whether two works are “substantially similar,” or, more specifically, on whether similarity in works is attributable to scenes a faire motives. See Baxter v. MCA, Inc., 812 F.2d 421, 424 & n. 2 (9th Cir.) (reviewing substantial similarity determination after noting that “striking similarity” inquiry was irrelevant since access had been conceded), cert. denied, 484 U.S. 954, 108 S.Ct. 346, 98 L.Ed.2d 372 (1987). Thus, appellants’ assertion that the scenes a faire inquiry is irrelevant when access is conceded is without merit.

4. Did Appellants’ Experts Rebut Appel-lees’ Scenes A Faire Showing?

Appellants argue that even if the district court properly considered appellees’ evidence regarding scenes a faire motives in appellants’ works, appellants’ experts rebutted ap-pellees’ scenes a faire assertions and thus created a triable issue of fact, making summary judgment inappropriate.

The record belies appellants’ claim. The district court carefully compared the scenes a faire assertions made by appellees’ expert, Dr. Eskelin, to the declaration of appellants’ experts, Dr. Argersinger and Dr. Parsons, and granted summary judgment only when the declarations of appellants’ experts were silent as to one of Dr. Eskelin’s scenes a faire conclusions or when appellants’ experts agreed with the assessment of Dr. Eskelin. Because the district court properly considered all the material in the record regarding scenes a faire motives and granted summary judgment only as to those motives that raised no genuine issue of material fact, we affirm the district court’s grant of partial summary judgment.

C. Did The District Court Err In Allowing The Jury To Reject Appellants’ Claims Without Considering Appel-lees’ Access to Appellants’ Copyrighted Works?

Standard of Review

A special verdict form is reviewed for an abuse of discretion. Floyd v. Laws, 929 F.2d 1390, 1395 (9th Cir.1991) (citations omitted). We must determine whether the questions in the form were adequate to obtain a jury determination of the factual issues essential to judgment. Id.

Analysis

Appellants contend that the district court abused its discretion by relying on a special verdict which allowed the jury to reject appellants’ claims before reaching the question of appellees’ access to appellants’ work. Ap-pellees argue that the district court acted well within its discretion by requiring the jury to answer three questions on “substantial similarity” that, if all answered in the negative, would dispose of appellants’ claims. We agree with appellees.

As noted above, we use a two-part test for “copying” comprised of an objective, “extrinsic” inquiry and a subjective, “intrinsic” inquiry. In making the subjective, intrinsic determination, the jury is required to decide whether an ordinary, reasonable lay listener would find substantial similarity in the work of plaintiff and defendant. If the jury determines that no substantial similarity exists, plaintiffs cannot prevail.

Appellants argue that “access” is a factor in the intrinsic substantial similarity determination, and thus the district court erred in requiring the jury to decide the intrinsic question without considering access. Although access is relevant to the extrinsic test, we have not incorporated considerations of access into the intrinsic “lay listener” inquiry. See, e.g., Shaw, 919 F.2d at 1358 (analyzing access for purposes of extrinsic test but not intrinsic test); Aliotti, 831 F.2d at 902 (noting that access does not affect intrinsic. inquiry); Baxter, 812 F.2d at 424 & n. 2 (noting that access is conceded for purposes of extrinsic test and then reviewing intrinsic determination without reference to access). Because the jury’s intrinsic test determination was potentially dispositive of appellants’ claims and access is not relevant to the intrinsic “lay listener” test, the district court did not err in requiring the jury to make an intrinsic test determination before considering access.

Moreover, although a district court is not required to submit its formulation of a special verdict to the parties for their review, in this case Judge Hupp followed the better practice of making the special verdict form available to the parties for their scrutiny and permitting the parties to comment on and challenge the special verdict form at the jury instructions hearing. The record establishes that Judge Hupp carefully considered the form of the special verdict and engaged the parties in an extended dialogue regarding not only the content of the questions submitted to the jury, but also the sequence in which the questions appeared in the special verdict form. On this record, it is clear that Judge Hupp did not abuse his discretion in formulating the special verdict instructions.

D. Did The District Court Abuse Its Discretion In Denying Appellees’ Motion For An Award Of Attorney’s Fees?

Standard of Review

A district court’s decision regarding the award of attorney’s fees under the Copyright Act is reviewed for an abuse of discretion. Jackson v. Axton, 25 F.3d 884, 890 (9th Cir.1994). Reversal for abuse of discretion is not appropriate unless this court has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors. Washington State Dep’t of Transp. v. Washington Natural Gas Co., 59 F.3d 793, 805 (9th Cir.1995) (reviewing denial of attorney’s fees).. The district court’s findings of fact underlying the attorney’s fees determination are reviewed for clear error. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1532 (9th Cir.1993), rev’d on other grounds, 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994).

Analysis

Appellees argue that the district court abused its discretion in denying attorney’s fees pursuant to the Copyright Act, 17 U.S.C. § 505. We disagree.

This court noted in Jackson that the district court may consider (but is not limited to) five factors in making an attorney’s fees determination pursuant to § 505 of the Copyright Act: (1) the degree of success obtained, (2) frivolousness, (3) motivation, (4) objective unreasonableness (legal and factual), and (5) the need to advance considerations of compensation and deterrence. Jackson, 25 F.3d at 890 (citing Fogerty v. Fantasy, Inc., 510 U.S. at-,-n. 19, 114 S.Ct. at 1023, 1033 n. 19.) Although the district court did not explicitly mention the Fogerty factors, the court implicitly considered four of the five factors. First, the district court concluded that appellants had more success in pursuing their claims than is typical of copyright infringement actions, mainly due to their “respectable evidence of access by defendants.” The district court also explicitly noted that it did not find frivolousness or that the suit was motivated by bad faith. Finally, the court noted that the claims had a legal basis sufficient to survive summary judgment and a factual basis supported by expert testimony.

In sum, given that the district court weighed many of the relevant considerations and does not appear to have committed a clear error of judgment, we find that the district court did not abuse its discretion in denying appellees’ motion for attorney’s fees.

AFFIRMED.

      . A “motive” is a short musical phrase, usually comprised of only a few notes.

      . The three claims that survived summary judgment were one motive from "What Will Become of the Children” allegedly infringed by "We Are The World,” one motive from "Happy Go Lucky Girl” allegedly infringed by "The Girl is Mine,” and the combination of two motives from "Run on Manchild” allegedly infringed by “Thriller.”

      .“Scenes a faire" refers to a motive that is so common or trite it is not protectable.

      . The alleged trial errors relate to the district court's formulation of the jury instructions. This issue is discussed in greater detail below.

      . Although the continued viability of the “Inverse Ratio Rule” was questioned in Aliotti v. R. Dakin & Co., 831 F.2d 898, 902 (9th Cir.1987), the rule was expressly reaffirmed in Shaw, 919 F.2d at 1361-62 (“Because no subsequent decision has disturbed the access rule established in Krofft, we believe that it is the law of this circuit.”).

      . Appellants also contend that the district court erred in considering a "Post-Hearing Memorandum In Support Of Motion For Summary Judgment” filed by appellees one day after the summary judgment hearing. The court had not indicated a need for further briefing at the summary judgment hearing, and appellees had not requested leave of the court to file its supplemental brief.
      The district court did not err in considering appellees' Post-Hearing Memorandum. Not only did appellants respond to the supplemental memorandum on the merits, but appellants also admit that the memorandum did not raise any new issues not already before the court. Given appellants’ opportunity to respond, and the fact that the memorandum raised no new issues, the district court did not err in considering the supplemental filings.

      . Validity falls under part one of our two-part copyright infringement test; copying of plaintiff's work by defendant is the second part. The parties in this case stipulated to the validity of appellants' copyright.

      . The district court not only denied summary judgment whenever appellants’ experts contested a scenes a faire assertion of appellees’ expert, but also properly construed the evidence in the light most favorable to appellants when their experts’ scenes a faire assessments were ambiguous.

      . Allowing the parties to assess the court’s formulation of a special verdict is particularly important in legally and technically complicated cases, like many copyright infringement actions, in which the jury may be tempted to seize upon the first opportunity to dispose of a case in order to avoid dealing with a case’s other, perhaps more difficult, aspects.


text:
    The FORT BELKNAP INDIAN COMMUNITY OF the FORT BELKNAP INDIAN RESERVATION, Plaintiff-Appellant, v. STATE OF MONTANA, Robert L. Robinson, individually and as Administrator, Gambling Control Division, Department of Justice, State of Montana; Stan Stephens, individually and as Governor, State of Montana; Marc Racicot, individually and as Attorney General, State of Montana, Defendants-Appellees.
    No. 94-35126.
    United States Court of Appeals, Ninth Circuit.
    June 7, 1996.
    James L. Vogel, Hardin, Montana, for plaintiff-appellant.
    Joseph P. Mazurek, Attorney General, and Deanne L. Sandholm, Assistant Attorney General, Helena, Montana, for defendants-appellees.
    Before: BEEZER and FERNANDEZ, Circuit Judges, and ORRICK, Senior District Judge.

       The Honorable William H. Orrick, Senior United States District Judge for the Northern District of California, sitting by designation.

   ORDER

The judgment of this court, 39 F.3d 1186 (Table), is vacated. For the reasons stated by the Supreme Court in Seminole Tribe of Florida v. Florida, — U.S.-, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), we affirm the judgment of the district court.

AFFIRMED.


author: BARRETT, Senior Circuit Judge.

text:
    William E. WASHINGTON, Petitioner, v. DEPARTMENT OF TRANSPORTATION, National Highway Transportation Safety Administration, Respondents.
    No. 95-9513.
    United States Court of Appeals, Tenth Circuit.
    April 23, 1996.

      John Womack, Acting Chief Counsel, Kenneth N. Weinstein, Assistant Chief Counsel, Enid Rubenstein and Coleman R. Sachs, National Highway Traffic Safety Administration; Barbara C. Biddle and Robert M. Loeb, Department of Justice, Washington, D.C., for respondents.
    William E. Washington, pro se.
    Before KELLY and BARRETT, Circuit Judges, and BROWN, Senior District Judge.

       Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by designation.

   BARRETT, Senior Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this petition for review. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. Accordingly, petitioner’s motion for oral argument is denied and the case is ordered submitted on the briefs.

Petitioner seeks review of a rule recently promulgated by respondent National Highway Traffic Safety Administration (NHTSA), see 49 C.F.R. § 571.121, which mandates and prescribes safety standards for antilock brake systems (ABS) manufactured for air-braked vehicles. We reject petitioner’s various challenges to the rule for the reasons stated below.

Petitioner contends (1) the rule reflects NHTSA’s deliberate attempt to exclude all but electronic ABS designs; (2) the rule impermissibly conflicts with operational standards established in 49 C.F.R. § 393.52 for commercial motor carriers; (3) the rule exceeds NHTSA’s delegated authority by imposing design specifications rather than performance criteria; (4) NHTSA failed to evaluate and disclose information regarding petitioner’s mechanical alternative to electronic ABS; and (5) NHTSA published false statistical data in connection with its denial of petitioner’s request for evaluation of his technology. All of these contentions lack even rudimentary substantiation in factual argument and legal authority. See generally United States v. Edwards, 69 F.3d 419, 430 (10th Cir.1995), petition for cert. filed, 64 U.S.L.W. 3593 (U.S Feb. 23, 1996)(No. 95-1355), (Feb. 29, 1996)(No. 95-8147), (Mar. 4, 1996)(No. 95-8134); SEC v. Thomas, 965 F.2d 825, 827 (10th Cir.1992). Nevertheless, we shall address the discernible questions regarding NHTSA’s regulatory authority implicated in the second and third points listed above. In this regard, we must determine whether the challenged action is “ ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41, 103 S.Ct. 2856, 2865-66, 77 L.Ed.2d 443 (1983)(quoting 5 U.S.C. § 706(2)(A)); Simms v. NHTSA 45 F.3d 999, 1003 (6th Cir.1995).

Section 398.52 specifies braking performance criteria for vehicles operated by commercial carriers on public highways. Petitioner objects that “[t]he rule change made by the Respondents [in § 571.121] cannot meet these requirements,” Petitioner’s Opening Br. at 4, though he does not detail how or why this is so. We note that the various stopping distances set out in the two regulations, though very similar, are not in every case identical. Compare, e.g., § 393.52(d)(B)(3)(40-foot stopping distance at 20 mph) with § 571.121 S5.3.1.1 (eff. March 1, 1997)(same) with § 571.121 S3.1.1 (eff. until March 1, 1997)(35-foot stopping distance). However, given evident (and reasonable) differences in the general orientation and specific focus of the two regulations, such divergence does not indicate true conflict, much less arbitrary, capricious, or unlawful action.

With respect to orientation, the motor carrier regulation concerns operational standards for vehicles in broadly defined real-world conditions, see § 393.52(a), (c)(l)(vehicle “must under any condition of loading in which it is found on a public highway, be capable of’ stopping in specified distance on “a hard surface that is substantially level, dry, smooth, and free of loose material”), while the NHTSA regulation involves standards for manufacture expressed in a manner more appropriate to the quality control lab, see § 571.121 S5.3.1, S5.3.1.1 (eff. until March 1, 1997)(vehicle “shall stop at least once [in six tries] in ... the distance specified” when tested “on a surface with a skid number of 81 ... [while] loaded to its gross vehicle weight rating”); § 571.121 S5.3.1, S5.3.1.1 (eff. March 1, 1997)(same, but on surface characterized by “a peak friction coefficient of 0.9”). As for focus, the motor carrier regulation, which covers braking performance per se, sets out a standard concerned primarily with stopping distance, with only a broad requirement that the vehicle remain within a twelve-foot wide lane, see § 393.52(a), (c), while the NHTSA regulation, which targets the ABS portion of the brake system, employs stopping distance tests as the context for detailing standards regarding wheel lockup, see § 571.121 S5.3.1. Given the related but distinct test parameters and divergent performance variables involved in these regulations, the minor differences apparent in their stopping-distance standards are neither surprising nor suspect.

NHTSA is generally charged with developing performance standards, not design specifications. Wood v. General Motors Corp., 865 F.2d 395, 416-17 (1st Cir.1988), cert. denied, 494 U.S. 1065, 110 S.Ct. 1781, 108 L.Ed.2d 782 (1990); Chrysler Corp. v. Department of Transp., 515 F.2d 1053, 1057-58 (6th Cir.1975). Petitioner contends NHTSA’s mandate of ABS and associated malfunction indicators transgresses this boundary on its regulatory authority. Although we do not take issue with petitioner’s premise, we reject his conclusion for several reasons.

First of all, the performance-design distinction is much easier to state in the abstract than to apply definitively — so as to justify judicial interference with an agency’s regulatory function — in concrete situations. This is particularly true when, due to contingent relationships between performance requirements and design options, specification of the former effectively entails, or severely constrains, the choice of the latter. See Wood, 865 F.2d at 416-17 (citing examples); see, e.g., Chrysler Corp., 515 F.2d at 1058-59. Such a relationship has been recognized between braking performance criteria and ABS. See Freightliner Corp. v. Myrick, — U.S. -, -, 115 S.Ct. 1483, 1486, 131 L.Ed.2d 385 (1995). We would, accordingly, be hesitant to invalidate this carefully developed safety standard solely on the basis of its indefinite place on the conceptual spectrum between performance and design. Here, other considerations counsel against such action as well.

NHTSA’s regulatory authority extends beyond the performance of motor vehicles per se, to particular items of equipment. See 49 U.S.C. §§ 30101, 30102(a)(9) (current versions of 15 U.S.C. §§ 1381, 1391(2), now repealed); Myrick, — U.S. at-, 115 S.Ct. at 1485. In the thirty years since passage of the National Traffic and Motor Vehicle Safety Act of 1966, NHTSA has frequently drawn on this authority to promulgate standards, particularly those dealing with safety devices, that take the bipartite form reflected in the ABS standard of § 571.121: “first, motor vehicles are required to have specific items of equipment; and, second, these enumerated items of equipment are subject to specific performance standards.” Chrysler Corp. v. Rhodes, 416 F.2d 319, 322 & n. 4 (1st Cir.1969)(discussing standards for lamps and reflective devices, which require 29 and 22 “specific items of equipment,” respectively); see also Wood, 865 F.2d at 417 (discussing occupant protection standard which, “[b]y requiring seat belts or passive restraints, ... has elements of a design standard”); Automotive Parts & Accessories Ass’n v. Boyd, 407 F.2d 330, 332 (D.C.Cir.1968)(upholding regulation requiring “factory equipped ... head restraints which meet specific federal [performance] standards”). Not only has Congress countenanced this long-standing practice, recodifying the Act in 1994 with the pertinent provisions essentially intact, it has specifically mandated safety equipment standards with just such a dual prescriptive-performative structure. See, e.g., 49 U.S.C. § 30127(b)(directing Secretary to amend occupant protection standard to require both front seats to have “an inflatable restraint (with lap and shoulder belts) complying with [specified performance criteria]”).

Moreover, the policy behind the legislative emphasis on performance standards, which is to ensure public safety without stifling design innovation, Wood, 865 F.2d at 416 n. 22; Chrysler Corp., 515 F.2d at 1058, is not compromised significantly by a safety-feature regulation like § 521.171. This provision mandates only a certain type of equipment, still constraining specific design choices chiefly through the preferred means of performance criteria. Further, any manufacturer that has devised a new means of obtaining the same or better safety performance afforded by mandated equipment may (1) seek an exemption to facilitate development or evaluation, 49 U.S.C. § 30113(b)(3)(B)(ii), and (2) petition for a new safety standard incorporating the new device, 49 U.S.C. § 30162(a)(1).

We have considered all of petitioner’s contentions and, whether explicitly addressed or implicitly rejected, each has been found to lack merit. The petition for review, and all pending motions associated therewith, are DENIED.

      . To the extent petitioner objects to the denial of his request for rulemaking in 1992, we agree with respondents that the petition is untimely. See 15 U.S.C. §§ 1, 1394(a)(1) (establishing fifty-nine day period for seeking judicial review of motor vehicle safety standards, now codified at 49 U.S.C. § 30161(a)); see also General Motors Corp. v. NHTSA, 898 F.2d 165, 169 (D.C.Cir.1990)(refusal to institute requested rule-making constitutes final agency action for purposes of judicial review).

      . ABS is broadly defined — and in predominately functional, rather than structural, terms — as “a portion of a service brake system that automatically controls the degree of rotational wheel slip at one or more road wheels of the vehicle during braking.” 49 C.F.R. § 571.121 S4 (eff. until March 1, 1997); see also 49 C.F.R. § 571.121 S4 (eff. March 1, 1997)(adding further functional detail to definition).

      . We note our treatment of the performance-design distinction is impliedly buttressed by this affirmative accommodation of "new motor vehicle safety feature[s] providing a safety level at least equal to the safety level of the [existing] standard." 49 C.F.R. § 30113(b)(3)(B)(ii)(em-phasis added). If, as petitioner contends, Congress intended its emphasis on performance criteria to preclude NHTSA’s mandate of particular safety features, no special exemption would be necessary for a new device meeting existing (purely performative) standards; such an exemption becomes necessary when existing standards mandate a particular type of equipment (a mandate even a performative equivalent cannot meet).