Davis v. Knipp, et al. (Maryland U.S.D.C.) (Not Approved for Publication)

Signed May 1, 2007. Memorandum and Order by Judge J. Frederick Motz.

In response to a pro se action, State defendants filed a motion to dismiss or for summary judgment and were granted the motion to dismiss.

The Court found that Davis' claims arose out of a peer review process in which defendants were engaged, and the law is clear that to the extent Davis was seeking monetary damages against defendants, all of them were entitled to absolute immunity in connection with their peer review activities.

Further, to the extent Davis was seeking injunctive relief in connection with the peer review process (which is ongoing), it was appropriate for this Court to abstain under the Younger v. Harris Doctrine.

The full Memorandum is available in PDF.

Ivy v. Board of Education of Baltimore County (Maryland U.S.D.C.) (Not approved for publication)

Signed April 30, 2007. Memorandum and Order by Judge J. Frederick Motz (not approved for publication).

In a case filed pro se by a former employee ("Ivy") against her former employer ("Board of Education"), upon consideration of the Board of Education's motion for summary judgment, the judge GRANTED the motion, finding that Ivy had presented no evidence to support her claims of race, religious, age and disability discrimination.

The Memorandum and Order are available in PDF format.

Bruns v. Potter (Maryland U.S.D.C.) (Not approved for publication)

Signed April 30, 2007. Memorandum and Order by Judge J. Frederick Motz (not approved for publication).

In an action in which an employee ("Bruns") alleged retaliation in violation of Title VII by his employer, the Postal Service, the defendant moved for summary judgment. Bruns failed to respond to the motion, and the judge GRANTED the defendant's motion, finding that there was no dispute as to any material fact, that the record showed that the disciplinary action against Bruns (being sent home and given a seven day suspension) was taken as a reasonable response to Bruns having "acted inappropriately and in a threatening manner" toward his supervisor, and that Bruns was treated no more harshly than any other employee in his circumstances.

The Memorandum and Order are available in PDF format.

U.S. ex rel. Sanders v. North American Bus Industries, Inc. (Maryland U.S.D.C.) (Not Approved for Publication)

Signed April 23, 2007--Memo to Counsel by Judge J. Frederick Motz.

This memo is in response to defendant's motion for summary judgment as to a surviving claim from a prior ruling.

The Court relied on the Fourth Circuit's establishment of a two-part test for determining whether under Fed. R. Civ. P. 15(d)(2) a new claim or defense relates back to the party's original complaint: (1) whether a factual nexus exists between the original pleading and the amendments; and (2) if such a factual nexus exists, whether defendant had notice of the amended claim and would not be prejudiced by its assertion. In the instant matter, although plaintiff's original and first amended complaints did not contain the specific allegations in a separate count, the allegations put defendant on notice of the claim now asserted. Further, defendant did not show any prejudice that would result from permitting assertion of the claim.

However, on the undisputed facts, plaintiff's claim failed as a matter of law. Plaintiff asserted that had NABI declared the proper payments in the Customs declarations, the amount of Customs duties paid by NABI would have been higher. The flaw here is a hypothetical declaration that was never made and that would have been erroneous in light of the finding subsequently made by Customs that no Customs duties were due because the imported items were non-dutiable. This flaw is of the most fundamental nature because one of the four required elements of a False Claims Act claim is that a defendant's statement or conduct caused the government to pay or forfeit money due.

Defendant's motion granted.

The full Memorandum is available in PDF.

Williams v. Office Relocators (Maryland U.S.D.C.)

Memorandum Opinion and Order Signed April 23, 2007--Judge J. Frederick Motz.

Gerald Williams, in an action against his former employer under the Fair Labor Standards Act ("FLSA"), the Maryland Wage & Hour Law ("MWHL"), and the Maryland Wage Payment & Collection Law ("MWPCL"), presented the question whether Williams, while employed by Maryland Office Relocators ("MOR") fell within a class of employees over whom the Interstate Commerce Commission ("ICC") has the power to establish "qualifications and maximum hours of service." If Williams does not fall under this exemption (the "Motor Carrier Act" exemption), it is undisputed that he is entitled to overtime pay. If, on the other hand, he does fall within the exemption, it is undisputed that he is not entitled to overtime pay.

In this instance, the critical consideration in determing whether Williams falls within the Motor Carrier Act exemption is whether his activities "affect safety of operation" of a motor vehicle in interstate commerce. Therefore, where the "continuing duties of the employee's job had no substantial direct effect on such safety of operation or where such safety-affecting activities are so trivial, casual, and insignificant as to be de minimus, the exemption will not apply to him in any work week so long as there is no change in his duties."

In testimony, MOR failed to present any person supervised by Williams, who saw Williams on a job, any truck driver or mover who worked with Williams on a job, or indeed any operations manager contradicting Williams' own description of the work he actually performed. This Court found that, as a result, the Motor Carrier Act exemption applied and Williams was entitled to overtime pay under the FLSA and MWHL.

Two ancillary questions relating to Williams' claims remained under the FLSA and MWHL. First, was Williams entitled to liquidated damages under the FLSA and, second, was MOR's non-payment of Williams' overtime compensation "willful" so as to entitle Williams to three, rather than two, years back overtime pay?

An employer who violates the terms of the FLSA "shall be liable to the employee(s) affected in the amount of their unpaid minimum wages or their unpaid overtime compensation, as the cause may be, and in an additional equal amount as liquidated damages." However, if the employer shows to the satisfaction of the court that the act or ommission giving rise to such action was in good faith and that he had reasonable grounds for believing his act or ommission was not a violation of the FLSA," a court may refuse to award liquidated damages or may award liquidated damages in an amount less than that of the unpaid overtime compensation. The employer bears the plain and substantial burden of pursuading the court by proof that his failure to obey the statute was both in good faith and predicated upon such reasonable grounds that it would be unfair to impose upon him more than a compensatory verdict. Here, MOR's averments were entirely insufficient and it was found liable for the liquidated damages.

The statute of limitations for the FLSA is normally two years. However, if a plaintiff can demonstrate that the defendant's violation was "willful," the plaintiff may recover for the preceding three years. Violations are "willful" if the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute. The plaintiff bears the burden of proof of whether the defendant's actions were willful.

Williams' final claim for treble damages under the MWPCL was found without merit. Williams' claim was governed by the FLSA and the MWHL, not the MWPCL.

The full opinion is available in PDF.

Jones v. Bakery Express - Ms. Desserts (Maryland U.S.D.C.)

Signed March 30, 2007--Memorandum and Order by Judge J. Frederick Motz.

In an action for alleged racial discrimination brought under Title VII of the Civil Rights Act of 1964, Defendant filed a motion for summary judgment to which Plaintiff (who was represented by counsel) did not respond. The motion was granted because:

First, the summary judgment record contained no direct or indirect evidence that Defendant had a discriminatory attitude in dealing with the Plaintiff;

Second, Plaintiff did not establish on the summary judgment record that her job performance was satisfactory (the second element of a prima facie case under the McDonnell Douglas protocol); and

Third, Plaintiff did not establish that there were any employees who were not members of the protected class who were retained under apparently similar circumstances (the fourth element of a prima facie case under the McDonnell Douglas protocol).

The opinion is available in PDF.

Firemen's Insurance Co v. Komatsu America Corp. (Maryland U.S.D.C.) (Not Approved for Publication)

Signed February 22, 2007. Memorandum opinion and order by Judge J. Frederick Motz. (Not approved for publication.)

The plaintiff ("Firemen's") brought suit in the Circuit Court for Baltimore City for its own use and for the use of two employees who were seriously injured while working for a company insured by Firemen's, against various corporations and firms alleged to have been responsible for the accident. Defendants had removed the case to the federal district court on the basis of alleged diversity of citizenship of the parties.

The judge noted that Firemen's and two of the defendants are Delaware corporations and two of the other defendants were Delaware limited liability companies, and thus there was no apparent diversity. Defendants argued that the citizenship of a "partial subrogee" such as Firemen's should not be considered, but the judge distinguished the 4th Circuit's Virginia Elec. & Power Co. case, in which, unlike the instant case, the insured rather than the insurer/subrogee had initiated the case, and granted Firemen's motion to remand.

Acknowledging that it was "a close one," the judge declined to award Firemen's the costs and expenses it had incurred because of the removal, since Firemen's was in a financial position to pay its own costs and expenses, and resolving the issue of attorney fees might result in a delay in the remand to the Circuit Court of Baltimore City.

The opinion and order are available in PDF.

Guttman v. Liberty Mutual Fire Insurance Co. (Maryland U.S.D.C.) (Not Approved for Publication)

Signed February 22, 2007. Memorandum opinion and order by Judge J. Frederick Motz. (Not approved for publication.)

The defendant ("Liberty Mutual") had issued an insurance policy to a homeowner ("Proctor"). After the end of the policy period, Proctor was sued by an individual ("Robinson") who claimed Proctor's daughter had shot him in the eye with a BB pistol during the policy period. Proctor failed to notify Liberty Mutual as required by the terms of the policy, and a default judgment was subsequently entered against Proctor. Almost nine months after the default judgment, Proctor finally notified Liberty Mutual, who disclaimed coverage based on the untimely notice.

Proctor then filed for Chapter 7 protection, and this action was brought by Proctor's trustee in bankruptcy ("Guttman") against Liberty Mutual, asserting "insurance bad faith," based upon Liberty Mutual's failure to defend Proctor and to settle the claim in the Robinson suit, and seeking compensatory and punitive damages on the bad faith claim and the policy limit in a breach of contract claim.

Liberty Mutual filed a motion for partial judgment on the bad faith claim. The judge found Maryland law to be clear that a bad faith claim does not lie when an insurer erroneously takes the position it has no contractual liability as to a particular claim, but only when it has proceeded on the basis that the contractual obligation exists, and has undertaken the obligation in violation of the appropriate standard of care, citing Mesmer v. MAIF.

In this case, notwithstanding Guttman's claim that Liberty Mutual had in fact assumed the responsibility for providing a defense, Guttman's pleadings included a statement that this was not in fact so, and the several contacts between Liberty Mutual and counsel for Robinson were evidently initiated by counsel for Robinson in order to extend an offer to vacate the default judgment if Liberty Mutual would appoint counsel, which Liberty Mutual declined to do. Consequently, the judge granted judgment on the pleadings to Liberty Mutual on Guttman's "insurance bad faith" claim, and struck Guttman's request for punitive damages.

The opinion and order are available in PDF.

Henderson v. Gilbert (Maryland U.S.D.C.) (Not Approved for Publication)

Filed February 20, 2007--Opinion by Judge J. Frederick Motz. (Not approved for publication.)

Henderson brought this pro se employment discrimination action against Defendants Anne Arundel County Board of Education ("the Board"); John Gilbert, the foreman of operations for Anne Arundel County Schools; Walter George, the supervisor of operations for the Anne Arundel County Schools; and Sue Torr, who served as principal of Solley Elementary School ("Solley"). Other claims in the case had previously been dismissed. Here, the Court granted the Defendants' Motion for Summary Judgment as to the remaining three claims: Aalleged violation of Article 24 of the Maryland Declaration of Rights by all defendants; alleged violations of Title VII by the Board; and alleged federal constitutional violations by the individual defendants asserted under 42 U.S.C. 1983 and 1985(3).

The instant action arises from the denial of the promotion and from suspensions imposed on Henderson while he was employed as the Chief Custodian at Solley on three separate occasions. He alleged discrimination based upon his race and he also claimed that he was retaliated against after he filed his EEOC complaint.

The Title VII Claims Against the Board. Held: Henderson has not been able to establish a prima facie case for race discrimination because he has not been able to identify any employee of Solley--or the Board more broadly--who had similar work performance issues but received less severe discipline.

The Maryland Constitutional Claim Against All Defendants. Held: This claim fails for the same reasons as does Henderson's Title VII claims. Furthermore, the individual defendants are protected by a qualified privilege since the "facts establish that the individual defendants did not act with malice or gross negligence." Here, the term "malice" was defined as the "[intentional performance of] an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff."

The Federal Constitutional Claims Against Individual Defendants. Held: This claim fails for the same reasons as does Henderson's Title VII claims. Furthermore, the Court held that the individual defendants did not play a role in the decision-making process leading to Henderson's failure to be promoted.

A copy of the opinion and order is available in PDF.

Cureton v. Cianbro Corp. (Maryland U.S.D.C.)(not approved for publication)

Signed January 30, 2007. Opinion and Order by Judge J. Frederick Motz (not approved for publication)

On motion for reconsideration of the judge's earlier dismissal and for leave to amend the complaint, the judge noted that, in the Fourth Circuit (per the Bass case which interpreted the Supreme court decision in Swierkiewicz), an earlier judgment may be amended to accommodate an intervening change in controlling law, to account for new evidence not available at trial, or to correct a clear error of law or prevent manifest injustice, but not to raise arguments which could have been raised prior to the issuance of the judgment. By contrast, Cureton here only urged the judge to follow a more liberal interpretation of Swierkiewicz, which position had been considered and rejected by the judge in making the original decision. The court also found no reason to grant leave to amend the complaint, since Cureton had been aware of Bass' more restrictive pleading requirements from the very beginning, and in any event the proffered amended complaint still fell far short of the required standard.

This Opinion and Order are available in PDF format. The Court's earlier opinion dismissing the case is here.

Conyers v. Dept of the Army (Maryland U.S.D.C.)(not approved for publication)

Filed January 16, 2007 –Opinion by Judge J. Frederick Motz (not approved for publication)

In an action arising from an accident in 2002, in which Plaintiff Conyers was severely burned while cooking dinner in the Army housing assigned to his family, the Plaintiff asserted a negligence claim against the United States. The United States moved to dismiss, based on lack of subject matter jurisdiction and failure to state a claim.

The Court noted that the Defendant may have had knowledge of a potentially dangerous condition (the absence of a fire extinguisher) and it was at least arguably foreseeable that the lack of an available fire extinguisher in the apartment would make the consequences of a cooking fire more serious. The Court found lacking, however, any allegation that Defendant retained control over the apartment in which Plaintiff and his wife lived. Thus the Court found no basis under Maryland law for a finding that Defendant owed any duty to Plaintiff to provide him with a fire extinguisher. Having found that Defendant owed no duty to Plaintiff, the Court held that the Plaintiff's claim therefore failed as a matter of law.

In a footnote, the Court thanked the attorney it had appointed, James S. Zavakos, for the highly professional services he rendered to the Plaintiff and to the court. Although the Plaintiff originally instituted this action pro se, the Court appointed Mr. Zavakos to represent the Plaintiff because of the extremely unfortunate nature of the accident, the extent of the injuries the Plaintiff sustained, and the closeness of the legal issues.

The full opinion is available in PDF. The order appears here.

Environmental Integrity Project v. Mirant Corp. (Maryland U.S.D.C.)(not approved for publication)

Informal Memorandum Opinion and Order--January 3, 2007 by Judge J. Frederick Motz (not approved for publication)

Through an informal memo to counsel, the Court granted Defendant's motion to dismiss based on lack of subject matter jurisdiction but denied Defendant's request for attorneys fees because the Court found the instant action not "frivolous, groundless, pursued in bad faith, or maintained after its baselessness became apparent."

Plaintiffs sought to rebut the presumption of diligence by asserting that (1) the process by which the consent decree came into being suggests a lack of diligence, (2) the penalties imposed by the consent decree are trivial and actually discouraged compliance by making it cheaper to continue to violate opacity standards, (3) the consent decree does not require Defendant to switch from oil to natural gas, and (4) the terms of the consent decree do not require compliance with federal and state opacity standards.

Defendants conceded that a 60-day notice letter was "the catalyst for an accelerated evaluation of emissions from fossil-fuel fired electric generating units at power plants in Maryland and the resulting negotiations ended in a consent decree filed in P.G. County just one day before Plaintiff’s could file suit pursuant to an order entered separately by the U.S. Bankruptcy Court for the Northern District of Texas." The Court found that §7604(b)(1) recognizes that citizens’ notice may provide the catalyst for regulatory action and regulatory agencies must be given 60 days to decide whether to take action. Consequently, there must be other indicia that a consent decree was entered into collusively in order for a lack of diligence to be found on the basis of allegedly tainted process.

The Court further rationed that, economic benefit analyses aside, the fact that state proceedings result in the imposition of minimal penalties is not itself a basis for finding that the state prosecutions were not diligent, particularly where the consent decree requires the defendant to incur substantial capital costs in complying with its terms and where the state court retains jurisdiction to enforce the decree.

The Plaintiffs seemed to suggest that the "requiring compliance" element of defendants’ subject matter jurisdiction defense is separate and apart from the "diligent prosecution" element of that defense. The court found that position lacked merit based, in part, on Clean Air Council, 2003 WL 1785879, at *5-6, wherein while considering the "requiring compliance" issue, indicated that the relevant question is whether the regulatory prosecution was "totally unsatisfactory,’ not whether it required the remedy which the [plaintiffs] would have preferred." The standard of review in Clean Air Council is the proper one because the inquiry into whether a consent decree is reasonably designed to require a polluter’s compliance with applicable standards is part and parcel of the inquiry into whether state regulatory authorities have diligently prosecuted an action against the polluter. Accordingly, the views and actions of the regulatory authorities are entitled to deference.

The full opinion is available in PDF.

Laurel Sand & Gravel, Inc. v. Philbrick (Maryland U.S.D.C.)(not approved for publication)

Memorandum Opinion and Order dated January 3, 2007, by Judge J. Frederick Motz (not approved for publication)

In a brief letter memorandum, Judge Motz awarded a "hat trick" to the defendants, finding three separate grounds for dismissal of this case, which involved challenges by a mine owner/operator to the Maryland Dewatering Act.

The first grounds raised were based on principles of res judicata and collateral estoppel, claiming that the earlier Maryland case of Maryland Aggregates Ass'n, Inc. v. State of Maryland resolved or could have resolved the issues in this case. For res judicata claims, the federal courts are to apply the law of the state in which the prior case was heard, in this case Maryland. The court found that two of the requisite elements were not in dispute, namely that there was a final judgment on the merits and the parties were the same, and after some consideration found the final element, that the claims were substantially similar (though the court noted that, had the other bases for dismissal proved unavailing, he might have considered certifying the question to the Maryland Court of Appeals for resolution).

The second ground was that the plaintiff's claim failed as a matter of law, in that the Dewatering Act did not deprive the plaintiff of any property right in requiring the dewatering mine operator to pay for new wells for adjacent landowners presumptively affected by the dewatering operation, and the plaintiff had failed to identify any "property interest" that the state has invaded.

The third ground was a claim that the abstention doctrine of Younger v. Harris precluded the federal court from interfering with an ongoing state proceeding which involved important state interests and provided an adequate opportunity for the plaintiff to raise the federal constitutional claims advanced in the federal suit. Here, the plaintiff had admittedly failed to appeal the result of a Maryland administrative proceeding that had denied its claims, and thus voluntarily gave up the right to resolve those matters in the Maryland courts). The judge also found an important, substantial and vital state interest, even though the Fourth Circuit has not yet specifically identified regulation of water use for Younger purposes, finding at least an analogy to zoning and regulation of land use which have long been held to justify federal abstention.

The full opinion is available in PDF, as is the order.

U.S. ex.rel. Sanders v. North American Bus Industries, Inc. (Maryland U.S.D.C.)(not approved for publication)

Memorandum Opinion and Order dated January 3, 2007--Judge J. Frederick Motz (not approved for publication)

In an informal format (letter memo to counsel), the judge denied the plaintiff's motion for summary judgment, and granted in part and denied in part the defendant's motion of summary judgment.

Plaintiff's "Buy America" claims in count I were based upon the contention that defendant NABI's payments to NABI Hungary (its Hungary-based parent company) for Engineering and Technology ("E&T") services in sham contracts were designed to disguise the true purpose of those payment, which was to enable NABI to qualify for a federal subsidy and shift taxable income to the overseas parent company. The judge found there to be genuine issues of fact, and denied both parties' summary judgment motions as to count I, noting, however, that there was no evidence in the record that any other company would have provided the buses for less, nor that the buses were not delivered, so there could be no claim for actual damages, but only the penalties provided in the False Claim Act.

The gravamen of plaintiff's claims in counts II and III is that the defendant obtained a refund of customs duties and avoided further customs duties by falsely stating that certain component parts were permanently installed on the frames of the buses being imported from Hungary, thus qualifying them as "unfinished buses" rather than "bus shells," to which a 4% customs duty would apply. The judge found the alleged misstatements to be immaterial, since the classification did not depend on installation of the component parts, only that the component parts were supplied with the rest, which was undisputed.

Finally, in count IV, the plaintiff claimed that by declaring only the contract price and not the allegedly fictitious cost for E&T services, NABI had underpaid custom duties. Since as above the unfinished buses were not subject to custom duty, the judge indicated the likely merits of the defendant's motion, but since the defendant had not responded to NABI's claim that duty-free treatment only applied to bus shells imported after April 12, 1997, the judge dismissed the defendant's summary judgment motion, with leave to file another summary judgment motion as to the count.

The judge had also dismissed the United States' request for a delay on the judge's ruling, to allow it to reconsider its earlier decision not to intervene, since the case had been pending since 2002, the United States had twice been invited to intervene and had twice declined, and it had received copies of all the electronic filings in the case. In the judge's words, "Under these circumstances, the time has come for this court to rule without hearing from the United States."

The full opinion is available in PDF, as is the order.

Harkum v. US (Maryland U.S.D.C.)(not approved for publication)

Decided December 29, 2006 -- Opinion by Judge J. Frederick Motz (not approved for publication)

In a brief memorandum opinion providing relatively few factual details of the case, the United States District Court for the District of Maryland reviewed a motion for summary judgment filed by the United States regarding Plaintiff's six civil counts under Maryland common law arising out of the arrest and shooting of Joseph Schultz. The opinion does not specify either the precise causes of action or the relationship between Plaintiff and Joseph Schultz, but indicates that Plaintiff was in Schultz's presence when a federal agent shot him.

The Court held that sovereign immunity entitled the United States to judgment as a matter of law on Counts I and II of the complaint, holding that the discretionary function exception to the waiver of sovereign immunity under the Federal Tort Claims Act applies to those counts. The Court denied summary judgment against all four remaining counts, finding that a reasonable fact finder could find that the federal agent who shot Schultz did so with recklessness or gross negligence and therefore find for Plaintiff.

The Court also mentioned the existence of a separate, prior federal civil action by Schultz against federal agent Braga, distinguishing the cases in a brief footnote.

The full opinion and associated order are available in PDF format.

Jimenez v. Barnhart (Maryland U.S.D.C.)(not approved for publication)

Decided December 20, 2006--Opinion by Judge J. Frederick Motz (not approved for publication)

Pro se action for employment discrimination by an employee of the Social Security Administration. Defendants' Motion to dismiss or, in the alternative, for summary judgment, granted.

Held:

1. Director of the Office of Personnel Management has only discretionary authority to seek review of a decision of the Merit Systems Protection Board (the "MSPB"), which discretion may only be exercised if the Director concludes that "the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive."


2. A challenge to a decision of the MSPB can only be brought in the United States Court of Appeals for the Federal Circuit and a United States District Court has no jurisdiction over such claims.


3. An adverse finding of the MSPB with respect to discrimination claims are required to be filed in a United States District Court within 30 days after the MSPB’s decision became final. She did not do so. If a review of an MSPB decision as to other claims is sought, that appeal must be filed in the United States Court of Appeals for the Federal Circuit within 60 days after the MSPB's decision became final. The United States District Court cannot review a decision of the United States Court of Appeals for the Federal Circuit.


4. Certain claims are barred if an employee does not appeal an adverse decision of the Social Security Administration to the MSPB.
   


5. Any claim with regard to the issuance of a Performance Assessment Plan to an employee fails because the issuance of the Plan is not a "ultimate employment decision" of the type necessary to give rise to a discrimination claim.

The full opinion is available in PDF.

Berkowitz v. U.S. Army (Maryland U.S.D.C.)(not approved for publication)

Filed December 21, 2006--Opinion by Judge J. Frederick Motz (not approved for publication)

Defendant United States Army's motion to dismiss a non-tort monetary claim for lack of subject matter jurisdiction denied. Defendant suggested that transfer of the matter to the Court of Federal Claims would be inappropriate given the significant statute of limitations issues and motioned for dismissal by the District Court for lack of subject matter jurisdiction.

The Court transferred the action to the Court of Federal Claims pursuant to 28 U.S.C. §1631 based on the lack of subject matter jurisdiction and consequent impropriety for any District Court ruling on the statute of limitation issues.

The opinion did not describe the precise nature of the claim.

The full opinion is available in PDF