Petition for Writ of Certiorari — Tyrone Doutherd, Petitioner v. United Parcel Service, Inc., et al.

Supreme Court briefApr 14, 2023

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SUPREME COURT OF THE UNITED STATES

TYRONE DOUTHERD,

Petitioner,

UNITED PARCEL SERVICE, UNITED PARCEL SERVICE FREIGHT, and

LIBERTY MUTUAL INSURANCE COMPANY

Respondents.

On PETITION FOR WRIT OF CERTIORARI

from an Order of the

Ninth Circuit Court of Appeals Case #21-15966

Affirming the Opinions of the

United States District Court for the Eastern District of California

Case No. 2:17-cv-02225 MCE then KJM

Honorable Morrison C. England, Jr., United States District Court Judge

Honorable Kimberly J. Mueller, United States District Court Judge

APPENDIX A to PETITION FOR WRIT OF CERTIORARI

Tyrone Doutherd

5325 Elkhorn Blvd., #384

Sacramento, CA 95842

Telephone: (916) 769-4438

Email tyronedoutherd@yahoo.com

Tyrone Doutherd,

Petitioner Pro Se

SUPREME COURT OF THE UNITED STATES

TYRONE DOUTHERD,

Petitioner,

UNITED PARCEL SERVICE, UNITED PARCEL SERVICE FREIGHT, and

LIBERTY MUTUAL INSURANCE COMPANY

Respondents.

On PETITION FOR WRIT OF CERTIORARI

from an Order of the

Ninth Circuit Court of Appeals Case #21-15966

Affirming the Opinions of the

United States District Court for the Eastern District of California

Case No. 2:17-cv-02225 MCE then KJM

Honorable Morrison C. England, Jr., United States District Court Judge

Honorable Kimberly J. Mueller, United States District Court Judge

APPENDIX A to PETITION FOR WRIT OF CERTIORARI

Tyrone Doutherd

5325 Elkhorn Blvd., #384

Sacramento, CA 95842

Telephone: [916] 769-4438

Email tyronedoutherd@yahoo.com

Tyrone Doutherd,

Petitioner Pro Se

TABLE OF CONTENTS

1) Docket entry 71.1 MEMORANDUM dated December 12, 2022. 21-15966

pages 2 - 6

2) Document 185 JUDGMENT dated 05/05/21. Case 2:17-cv-02225-KJM-JDP

page 7

3) Document 184 ORDER dated 05/05/21. Case 2:17-cv-02225-KJM-JDP

page 8-15

4) Document 160 ORDER dated 10/13/20 Case 2:17-cv-02225-KJM-JDP

pages 16 - 53

5) Document 96 ORDER dated March 22, 2019. Case 2:17-cv-02225-KJM -JDP

page. 54 - 62

6) Document83 ORDER dated January 02, 2019. Case 2:17-cv-02225-KJM-JDP

page. 63 - 64

7) Docket entry 76 ORDER dated January 19, 2023. 21-15966

page. 65

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Case: 21-15966, 12/12/2022, ID: 12608099, DktEntry: 71-1, Page 1 of 5

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TYRONE DOUTHERD,

No.

Plaintiff-Appellant,

FILED

DEC 12 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

21-15966

D.C. No.

2:17-cv-02225-KJM-JDP

UNITED PARCEL SERVICE, INC.;

LIBERTY MUTUAL INSURANCE

COMPANY,

MEMORANDUM*

Defendants-Appellees,

and

DORIS MARIE MONTESDEOCA; et al.,

Defendants.

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, Chief District Judge, Presiding

Submitted December 8, 2022**

San Francisco, California

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

(2 of 5)

Case: 21-15966, 12/12/2022, ID: 12608099, DktEntry: 71-1, Page 2 of 5

Before: BRESS and VANDYKE, Circuit Judges, and RESTANI,*** Judge.

Tyrone Doutherd appeals the district court’s grant of summary judgment to

UPS Freight (UPSF) in Doutherd’s employment action alleging various federal and

state law claims. We review the grant of summary judgment de novo and may affirm

on any ground supported in the record. Nat’lR.R. Passenger Corp. v. Su, 41 F.4th

1147,1152 (9th Cir. 2022). We have jurisdiction under 28 U.S.C. § 1291 and affirm.

The district court properly granted summary judgment on Doutherd’s

fraud claim. Doutherd presents no evidence that his managers had the intent to

defraud him as to his workers’ compensation benefits or that he justifiably relied on

any alleged misrepresentations. See Lovejoy v. AT&T Corp., Ill Cal. Rptr. 2d 711,

717 (Cal. Ct. App. 2001) (reciting elements of fraud claim under California law).

Doutherd’s allegations that his managers harbored ill-will toward him, demonstrated

by the fact that they forced him to “work injured” and did not “give [him] the time

of day,” are too “general and conclusory” to make out a fraud claim. Lazar v.

Superior Ct., 909 P.2d 981, 984-85 (Cal. 1996). Doutherd also admitted in his

deposition that he knew the alleged misrepresentations about company policy were

wrong, belying any reliance on them. Finally, to the extent that Doutherd’s fraud

claim pertains to his workers’ compensation benefits, it is preempted by California’s

***

The Honorable Jane A. Restani, Judge for the United States Court of

International Trade, sitting by designation.

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Case: 21-15966, 12/12/2022, ID: 12608099, DktEntry: 71-1, Page 3 of 5

workers’ compensation statute.

Cal. Lab. Code § 3602(a); see King v.

CompPartners, Inc., 423 P.3d 975,981 (Cal. 2018) (holding that “injuries stemming

from conduct occurring in the workers’ compensation claims process” fall within

the statute’s exclusivity bar); Charles J. Vacanti, M.D., Inc. v. State Comp. Ins.

Fund, 14 P.3d 234, 243 (Cal. 2001) (explaining that claims predicated on injuries

‘“collateral to or derivative of an injury compensable by the exclusive remedies of

the WCA ... may be subject to the exclusivity bar” (quoting Snyder v. Michael’s

Stores, Inc., 945 P.2d 781, 785 (Cal. 1997))).

The district court properly granted summary judgment on Doutherd’s

disability discrimination and retaliation claims under the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12112(b)(5)(A), and California’s Fair

Employment and Housing Act (FEHA), Cal. Gov. Code. § 12940(m)(l). Doutherd

does not raise a genuine dispute of material fact as to whether UPSF failed to

accommodate his alleged disability or retaliated on account of it. UPSF granted the

only accommodation request Doutherd made that was supported by medical

documentation. And Doutherd does not point to any other evidence—either from

medical records or his own testimony—raising a genuine dispute of material fact as

to whether he informed his employer that his disability rendered him incapable of

performing his assigned duties. See Avila v. Conti Airlines, Inc., 82 Cal. Rptr. 3d

(4 of 5)

Case: 21-15966, 12/12/2022, ID: 12608099, DktEntry: 71-1, Page 4 of 5

440, 453 (Cal. Ct. App. 2008) (“The employee bears the burden of giving the

employer notice of his or her disability.”).

The district court properly granted summary judgment on Doutherd’s

ADA and FEHA retaliation claims because Doutherd failed to show that there was

“a causal link” between his “protected activity” and an “adverse employment

action.” Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004).

Doutherd has not demonstrated that any of the alleged adverse employment actions

were causally related to his requests for accommodations.

The district court did not abuse its discretion in denying Doutherd leave

to amend his complaint. See Gardner v. Martino, 563 F.3d 981,990 (9th Cir. 2009)

(standard of review). Because Doutherd sought to amend his complaint after the

district court had entered a pretrial scheduling order, he was required to satisfy the

more stringent “‘good cause’ standard of Federal Rule of Civil Procedure

16(b)(4)... rather than the liberal standard of Federal Rule of Civil Procedure

1 Doutherd’s complaint also alleges that he was discriminated against and harassed

on account of his race and disability. The district court granted summary judgment

on the disability claim and granted UPSF’s unopposed judgment on the pleadings

on the race claim. Doutherd does not appear to challenge these rulings. These claims

are therefore forfeited. Novato Fire Prot. Dist. v. United States, 181 F.3d 1135,1141

n.6 (9th Cir. 1999). Regardless, judgment for UPSF on these claims was proper for

the reasons the district court provided. Similarly, Doutherd does not appear to

challenge the district court’s resolution of Doutherd’s claims under Title VII and the

Age Discrimination and Employment Act (ADEA) and related state laws. These

claims are also forfeited, see id., but would lack merit regardless for the reasons the

district court provided.

'rig

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Case: 21-15966, 12/12/2022, ID: 12608099, DktEntry: 71-1, Page 5 of 5

15(a).” In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 737 (9th

Cir. 2013). The district court reasonably concluded that Doutherd lacked good cause

for amendment because he was aware of most of the facts that formed the basis of

his proposed amendments prior to the deadline. See Coleman v. Quaker Oats Co.,

232 F.3d 1271,1295 (9th Cir. 2000). The district court also properly concluded that

the late amendment would prejudice UPSF because discovery had already closed.

The district court properly granted UPSF’s application for a recovery

lien. Under California law, an employer who has paid workers’ compensation

benefits based on injuries to an employee caused by a negligent third party may

obtain a lien against the employee’s recovery in a suit against that third party. Cal.

Lab. Code § 3856. Doutherd’s argument that UPSF failed to provide proof that it

had actually paid workers’ compensation benefits in the amount of the lien is

contradicted by the record.

The district court properly dismissed Doutherd’s claims against Liberty

Mutual. These claims are all “collateral to or derivative of’ of an injury compensable

under California’s workers’ compensation statute and are thus barred by its

exclusive remedy provision. See King, 423 P.3d at 981}

AFFIRMED.

2 We deny Doutherd’s motion for judicial notice, Dkt. No. 12, because Doutherd has

not explained how the materials at issue are relevant to this appeal.

Case 2:17-cv-02225-KJM-JDP Document 185 Filed 05/05/21 Page 1 of 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

JUDGMENT IN A CIVIL CASE

TYRONE DOUTHERD,

CASE NO: 2:17-CV-02225-KJM-JDP

DORIS MARIE MONTESDEOCA, ET AL.,

Decision by the Court. This action came before the Court. The issues have been tried,

heard or decided by the judge as follows:

IT IS ORDERED AND ADJUDGED

THAT JUDGMENT IS HEREBY ENTERED IN ACCORDANCE WITH THE

COURT’S ORDER FILED ON 5/5/21

Keith Holland

Clerk of Court

ENTERED: May 5,2021

bv: /s/ H Kaminski

Deputy Clerk

Case 2:17-cv-02225-KJM-JDP Document 184 Filed 05/05/21 Page 1 of 8

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ORDER

Plaintiff,

No. 2:17-cv-02225 KJM JDP

Tyrone Doutherd,

Doris Marie Montesdeoca, et al.,

Defendants.

Defendant UPS Ground Freight (UPSF) requests the court amend, correct, or reconsider

its October 2020 order. Alternatively, UPSF requests the court dismiss plaintiff Tyrone

Doutherd’s race discrimination claim on the pleadings. Mot. at 1, ECF No. 162-1. Defendant

argues that Mr. Doutherd did not plead a claim for race discrimination, and therefore UPSF could

not have moved for summary judgment on that claim. In the alternative, defendant moves for

judgment on the pleadings. For the reasons provided below, the court denies defendant’s motion

for reconsideration but grants the motion for judgment on the pleadings. Plaintiff s race

discrimination claim is dismissed without leave to amend.

BACKGROUND

The court’s October 2020 summary judgment order sets forth the factual background of

this case; the court provides only a brief summary of the facts here. See Summ. J. Order at 10-

17, ECF No. 160. In 2015, plaintiff suffered numerous injuries in a car accident while driving a

Case 2:17-cv-02225-KJM-JDP Document 184 Filed 05/05/21 Page 4 of 8

Cutshaw Depo. Excerpts at 54:23-56:12, for this fact whereas deposition actually

reflects a third-party was called the N word within earshot of plaintiff).

•

Plaintiff claimed racial discrimination by other drivers was ratified by UPSF

management. See id.

In reply to plaintiffs statement of undisputed facts, UPSF asserted that “plaintiffs

contentions regarding racial discrimination are not pled in the operative complaint, are time-

barred, and are irrelevant to the fact at issue.” Def. Resp. PI. SUF at 33, ECF No. 145.

The court held a hearing on defendant’s motion for summary judgment in July 2020. In

October 2020, the court granted summary judgment for UPSF on all claims except for race

discrimination, explaining that “UPSF did not move for summary judgment on a Title YII race

discrimination claim.” Summ. J. Order at 38.

II.

MOTION TO RECONSIDER

Defendant requests the court amend or reconsider its prior order and cites to Rules 54(b),

60(a) and 60(b) of the Federal Rules of Civil Procedure as grounds for this part of their motion.

The court’s order granting summary judgment to defendant is interlocutory in nature as it is not a

final judgment. Rule 54(b) thus provides the proper vehicle for requesting reconsideration of the

prior order. See Persistence Software, Inc. v. Object People, Inc., 200 F.R.D. 626, 627 (N.D. Cal.

2001); Ernie Ball, Inc. v. Earvana, LLC, No. 06-00384 2009 U.S. Dist. LEXIS 132457, at *2 n.2

(C.D. Cal. Sep. 16, 2009) (denying reconsideration under 60(a) or 60(b) of partial summary

judgment order as it was not final judgment order).

Legal Standard

A district court has inherent authority to reconsider its interlocutory orders. See Fed. R.

Civ. P. 54(b); City ofLos Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885

(9th Cir. 2001). “Rule 54(b) does not describe the standard for reconsideration of an interlocutory

order or otherwise detail in what circumstances revised orders should issue.” AmeriColor Corp.

v. Kosto Food Prod. Co., No. SA-1600029, 2016 WL 10576634, at *2 (C.D. Cal. June 30, 2016).

While the Ninth Circuit appears not to have addressed the matter, some district courts in the Ninth

Circuit have applied standards of review similar to those used with respect to Rule 60(b), which

Case 2:17-cv-02225-KJM-JDP Document 184 Filed 05/05/21 Page 5 of 8

provide that “[reconsideration is appropriate when ‘the district court (1) is presented with newly

discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or

(3) if there is an intervening change in controlling law[, or] other, highly unusual circumstances

warranting reconsideration.”’ Id. (citing Sch. Dist. No. 1J, Multnomah Cty., Oregon v. ACandS,

Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993)). “Reconsideration is ordinarily appropriate only when

controlling law has changed, if new evidence has become available, or when necessary to correct

a clear error or prevent manifest injustice.” Sants v. Seipert, No. 215-00355, 2021 WL 465292, at

*6 (E.D. Cal. Feb. 9, 2021) (applying local rule and Rule 60(b) standard). Absent a showing of

manifest injustice, the court will not disturb its prior ruling, in the interest of overall fairness.

Advanced Steel Recovery, LLC v. X-Body Equip., Inc., No. 216-00148, 2020 WL 6043935, at *5

(E.D. Cal. Oct. 13, 2020).

This court’s local rules also govern applications for reconsideration and require the

moving party to provide “what new or different facts or circumstances are claimed to exist which

did not exist or were not shown” or “what other grounds exist for the motion” and “why the facts

or circumstances were not shown at the time of the prior motion.” E.D. Cal. L.R. 230(j). “In the

absence of new evidence or a change in the law, a party may not use a motion for reconsideration

to raise arguments or present new evidence for the first time when it could reasonably have been

raised earlier in the litigation.” Id.

Keeping in mind the above standards, after careful consideration, the court concludes it

did not commit clear error in its October 2020 order; therefore reconsideration is unwarranted.

Defendant is correct that the operative complaint is unwieldy, weaving together numerous

allegations under one broad claim, but it was not clear error to construe the complaint as alleging

a race discrimination claim under Title VII.

Discussion

Fundamentally, plaintiffs amended complaint provides sufficient notice to defendant that

plaintiff is asserting race discrimination. Even as a complaint must provide fair notice of its

claims and surpass a plausibility bar, it is still the case that it need contain only a “short and plain

statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2),

Case 2:17-cv-02225-KJM-JDP Document 184 Filed 05/05/21 Page 6 of 8

without necessarily including “detailed factual allegations,” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). In McHenry v. Renne, which defendant cites in support of its position, plaintiffs

had filed a fifty-three page long complaint that mixed “allegations of relevant facts, irrelevant

facts, political argument, and legal argument in a confusing way.” 84 F.3d 1172, 1174 (9th Cir.

1996). Here, plaintiff’s complaint is eighteen pages long, not including the paragraphs stricken

by the prior presiding judge; it avoids political argument, and points to relevant statutes that

invoke the law supporting a racial discrimination claim. See FAC 38. Plaintiffs DFEH

complaint, which defendant attached as an exhibit to its summary judgment motion, also put

defendant on notice given the “race/color” box plaintiff checked. See March 2017 DFEH Compl.

Defendant had an opportunity to challenge the race discrimination claim prior to the order

granting summary judgment. Defendant included one sentence in its reply to plaintiffs statement

of undisputed facts asserting plaintiff did not plead a race discrimination claim in his operative

complaint, but defendant did not seek to clarify that its motion for summary judgment covered

any race discrimination claim that might be pled. Against this backdrop, where defendant had not

moved to dismiss any claim at an earlier stage of the case, and plaintiffs allegations of race

discrimination included in his fourth claim survived defendant’s motion to strike, it was not clear

error for the court to construe plaintiffs complaint as containing a race discrimination claim.

III.

MOTION FOR JUDGMENT ON THE PLEADINGS

The court next considers defendant’s motion for judgment on the pleadings as to the claim

the court has let stand, plaintiffs race discrimination claim. This motion relies on Federal Rule

of Civil Procedure 12(c), and plaintiff has not opposed it.

Legal Standard

Rule 12(c) allows a party to move for judgment on the pleadings “[ajfter the pleadings are

closed—but early enough not to delay trial.” Fed. R. Civ. P. 12(c). The “same standard of

review applicable to a Rule 12(b)(6) motion applies to a Rule 12(c) motion,” at a different stage

of the litigation. Howell v. Leprino Foods Co., No. 18-01404, 2020 U.S. Dist. LEXIS 25515, at

* 1 (E.D. Cal. Feb. 12, 2020) (citing to Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192

(9th Cir. 1989)). The court draws reasonable inferences in the non-moving party’s favor and

■to

Case 2:17-cv-02225-KJM-JDP Document 184 Filed 05/05/21 Page 7 of 8

accepts the complaint’s allegations as true. Hines v. Youseff, 914 F.3d 1218, 1227 (9th Cir.

2019). Courts may grant a Rule 12(c) motion with or without leave to amend. See Gregg v.

Dep’tofPub. Safety, 870 F.3d 883, 889 (9th Cir. 2017) (while Rule 15 provides for granting

leave to amend freely when justice requires, leave may be denied where futile).

As required by Rule 12(c), the court looks only to the pleadings and does not assess any

factual record developed through summary judgment practice. While it is unusual to consider

motions under Rule 12(c) after resolving motions for summary judgment, it is not improper as

long as the motion is submitted early enough not to delay trial. See, e.g, MicroTechnologies,

LLCv. Autonomy, Inc., No. 15-02220, 2018 U.S. Dist. LEXIS 162104, at *13 (N.D. Cal. Sep. 21,

2018) (reviewing Rule 12(c) motion after summary judgment). Here, defendant submitted its

motion one week after the court’s order granting summary judgment. This was prompt enough

not to delay trial under any circumstances, even without a pandemic’s effect on trial schedules.

See Craten v. Foster Poultry Farms Inc., No. 15-02587, 2018 U.S. Dist. LEXIS 23384, at *6 (D.

Ariz. Feb. 13, 2018) (finding Rule 12(c) motion timely when submitted two weeks after order

granting summary judgment).

Discussion

The different legal standards applicable to motions for reconsideration and motions for

judgments on the pleading may well make for differing results on the pending motions. While it

was not clear error for the court to construe the operative complaint as alleging a race

discrimination claim, plaintiffs claim may not prevail when analyzed under the Rule 12(c)

standard.

To properly plead a prima facie race discrimination case under Title VII, a plaintiff must

allege: “(1) that the plaintiff belongs to a class of persons protected by Title VII; (2) that the

plaintiff performed his or her job satisfactorily; (3) that the plaintiff suffered an adverse

employment action; and (4) that the plaintiffs employer treated the plaintiff differently than a

similarly situated employee who does not belong to the same protected class as the plaintiff.”

Phelps v. U.S. Gen. Servs. Agency, 469 F. App’x 548, 549 (9th Cir. 2012). Plaintiff alleges he is

a member of a protected class of persons under Title VII, see FAC

31, 38, and that he suffered

Case 2:17-cv-02225-KJM-JDP Document 184 Filed 05/05/21 Page 8 of 8

numerous adverse actions because of his race, id. ]( 38, but does not plead sufficient facts to meet

either the second or fourth element. Specifically, even reading the complaint in the light most

favorable to the plaintiff, he does not explain either how he performed his job satisfactorily or

how his employer treated him differently than similarly situated employees who are not a part of

the same protected class. As plaintiff did not oppose the defendant’s motion, he does not point

the court to any portion of the complaint to argue otherwise. Even drawing reasonable inferences

in plaintiffs favor, as required, the court’s review of the pleadings persuades it that defendant’s

motion for judgment on those pleadings must be granted.

Leave to amend should be “freely give[n] ... when justice so requires,” unless a

defendant demonstrates undue delay, futility, undue prejudice, or bad faith. Fed. R. Civ. P.

15(a)(2); Chudacoffv. Univ. Med. Ctr. ofS. Nev., 649 F.3d 1143, 1153 (9th Cir. 2011). In its

most recent motion, defendant notes correctly that this “case has been pending for more than

three years and discovery lasted for over a year.” Mot. at 9. Additionally, “no discovery [was]

taken on a race discrimination claim” and, defendant argues, allowing plaintiff to plead a new

claim well past the midnight hour would deeply prejudice defendant. Id. at 8. Without discovery

to identify additional factual allegations not already before the court, any attempt to amend would

be futile. The court thus will not grant leave to amend.

IV.

CONCLUSION

The court denies defendant’s motion for reconsideration, but grants defendant’s motion

for judgment on the pleadings. As the court denies plaintiff leave to amend his complaint, this

case is now closed.

This order resolves ECF No. 162.

IT IS SO ORDERED.

DATED: May 4, 2021.

CHIEF

D STATES DISTRICT JUDGE

Case: 21-15966, 01/19/2023, ID: 12633764, DktEntry: 76, Page 1 of 1

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

JAN 19 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

TYRONE DOUTHERD,

Plaintiff-Appellant,

UNITED PARCEL SERVICE, INC.;

LIBERTY MUTUAL INSURANCE

COMPANY,

No.

21-15966

D.C. No.

2:17 - cv-02225-KJM-JDP

Eastern District of California,

Sacramento

ORDER

Defendants-Appellees,

and

DORIS MARIE MONTESDEOCA; et al.,

Defendants.

Before: BRESS and VANDYKE, Circuit Judges, and RESTANI,* Judge.

The panel unanimously voted to deny the petition for panel rehearing, Dkt.

72. Judges Bress and VanDyke voted to deny the petition for rehearing en banc,

Dkt. 73, and Judge Restani so recommended. The petition for rehearing en banc was

circulated to the judges of the Court, and no judge requested a vote for en banc

consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.

The Honorable Jane A. Restani, Judge for the United States Court of

International Trade, sitting by designation.

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