Carolyn Stump v. Greenfield Banking Company

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3054
DOROTHY J. EVANS, et al., individually and as Personal Repre-
sentative of the Estate of William Louis Evans, Jr., deceased,
Plaintiffs-Appellants,
v.
GREENFIELD BANKING COMPANY and JOANA SPRINGMIER,
Defendants-Appellees,
and
ROBERT A. MCDONALD, ∗ Secretary of Veterans Affairs,
Party-in-Interest.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 12 CV 01569 — Tanya Walton Pratt, Judge.
____________________
ARGUED APRIL 15, 2014 — DECIDED DECEMBER 22, 2014
∗Pursuant to Federal Rule of Appellate Procedure 43(c)(2), we have
substituted Robert A. McDonald for Eric K. Shinseki as the named party-
in-interest.
2 No. 13-3054
____________________
Before RIPPLE and WILLIAMS, Circuit Judges, and ST. EVE,
District Judge. **
WILLIAMS, Circuit Judge. After the United States Depart-
ment of Veterans Affairs determined William L. Evans, Jr.
was no longer competent to manage his veterans’ benefits, it
appointed his daughter as the federal fiduciary. The VA later
terminated her appointment and appointed the Greenfield
Banking Company. Evans’s wife and daughter filed this suit
asserting breach of fiduciary duty and conversion by the
Bank. They also seek the creation of a constructive trust. The
complaint alleges that the Bank complied with the terms of
its obligations to the VA as federal fiduciary but that doing
so meant it breached its fiduciary duty to Evans. The com-
plaint does not make any allegations of misuse of funds,
mismanagement depriving him of the use of any funds, em-
bezzlement, or the like. We conclude that the district court
properly dismissed this case for lack of jurisdiction because
the allegations made in the complaint are outside the scope
of state court review, and therefore ours as well. We affirm.
I. BACKGROUND
Because this is an appeal from the grant of a motion to
dismiss, we take the narrative that follows from the allega-
tions in the complaint and draw all reasonable inferences in
it in the plaintiffs’ favor. See Virnich v. Vorwald, 664 F.3d 206,
212 (7th Cir. 2011). Evans was a United States military veter-
an who received approximately $3,900 each month in bene-
**Of the Northern District of Illinois, sitting by designation.
No. 13-3054 3
fits from the VA. In July 2009, the VA determined that Evans
was no longer competent to manage his VA benefits and ap-
pointed Carolyn Stump, Evans’s daughter, as his “federal
fiduciary” to manage his VA benefits. The VA terminated
Stump’s federal fiduciary appointment in early October 2010,
and, on October 7, 2010, appointed the Bank as Evans’s fed-
eral fiduciary. Stump had not known that the Bank would be
appointed.
In the meantime, Stump had requested and received an
Indiana state-court order on October 1, 2010 appointing her
as Evans’s permanent guardian. She had already been his
attorney-in-fact since 2005 pursuant to a Durable Power of
Attorney. Although Stump was no longer Evans’s federal fi-
duciary in November and December 2010, she made expend-
itures on his behalf in those months. The Bank requested VA
approval in January 2011 to reimburse Stump for expendi-
tures she made on behalf of Evans in November and Decem-
ber 2010, but the complaint alleges that Stump was not fully
reimbursed.
On October 13, 2011, Evans’s wife and daughter filed a
complaint in Indiana state court against the Bank and one of
its employees with counts alleging breach of fiduciary duty
and conversion, and another seeking a constructive trust.
The complaint alleged among other things that the Bank had
breached its fiduciary duty to Evans or succumbed to a con-
flict of interest by complying with the terms of its federal fi-
duciary agreement with the VA. The Secretary of Veterans
Affairs moved to intervene as a party in interest and filed a
motion to dismiss the state court action for lack of jurisdic-
tion or in the alternative to stay the action pending resolu-
4 No. 13-3054
tion of Stump’s case that was then pending in the United
States Court of Appeals for the Federal Circuit. 1
In October 2012, the plaintiffs filed an “Emergency Mo-
tion for Hearing to Appoint a Replacement Fiduciary” which
stated in part that “[t]he underlying conflict concerned
whether [the Bank] and the VA’s actions were consistent with
the law.” Six days later, the Secretary removed the case to
federal district court, noting that prior to the emergency mo-
tion the plaintiffs had repeatedly asserted they were not pur-
suing claims against the VA in the case. The Secretary then
filed in federal court its pending motion to dismiss for lack
of jurisdiction or in the alternative to stay.
The Bank resigned as federal fiduciary for Evans’s VA
benefits in April 2012, and an attorney was appointed as the
replacement fiduciary. Evans passed away on December 23,
2012. Stump was appointed the personal representative of
Evans’s estate and continued the litigation on the estate’s be-
half. The district court granted the motions to dismiss with-
out prejudice, ruling that it lacked jurisdiction to decide the
1In May 2011, Stump had sought a writ of mandamus from the Unit-
ed States Court of Appeals for Veterans Claims for reasons including the
VA’s alleged refusal to reimburse Stump for expenses incurred and for
its refusal to acknowledge her authority as attorney-in-fact and guardi-
an. The Veterans Court rejected Stump’s request. She then appealed to
the United States Court of Appeals for the Federal Circuit. In January
2013, the Federal Circuit ruled that mandamus relief was not warranted
and directed the Evans family to seek relief regarding the Secretary’s
appointment of the Bank as federal fiduciary before the Board of Veter-
ans Appeals. The action before the Board ended due to Evans’s death in
December 2012.
No. 13-3054 5
claims in the complaint because the plaintiffs had not ex-
hausted their administrative remedies.
II. ANALYSIS
The question on appeal is whether the district court
properly dismissed this case for lack of jurisdiction. The
plaintiffs maintain that their claims for breach of fiduciary
duty, conversion, and constructive trust are state-law claims
cognizable in Indiana state court and therefore in the federal
district court on removal. The Bank and VA, on the other
hand, contend that the allegations the plaintiffs make in their
complaint demonstrate that the state court, and as a result
the federal district court on removal, lacked jurisdiction over
this case. 2 We review the grant of a motion to dismiss de
2The plaintiffs also suggest on appeal that this case should not be in
federal court because, they say, the Secretary’s removal hinged on the
plaintiffs’ motion to the state court for the appointment of a successor
fiduciary, an issue they argue was made moot by the appointment of
such a fiduciary and Evans’s later passing. First, the plaintiffs’ Emergen-
cy Motion asserted that “the underlying conflict in this case has to do
with whether Greenfield Banking Company and the VA’s actions were
consistent with the law” and requested mandamus relief from the state
court ordering the Secretary to release certain funds or make VA pay-
ments directly to certain individuals. The Secretary invoked 28 U.S.C. §
1442(a), the federal officer and agency removal statute, and removed
based on those assertions, which were not dependent upon the appoint-
ment of a successor fiduciary. Next, to the extent the plaintiffs contend
that removal was untimely, the plaintiffs’ failure to challenge removal in
the district court precludes them from doing so for the first time in their
appellate brief. See 28 U.S.C. § 1447(c) (“A motion to remand the case on
the basis of any defect other than lack of subject matter jurisdiction must
be made within 30 days after the filing of the notice of removal ….”). No
such motion was made here, and it is too late for a first-time challenge to
(continued …)
6 No. 13-3054
novo, accepting all of the factual allegations in the complaint
as true and drawing all reasonable inferences in the plain-
tiffs’ favor. Chasensky v. Walker, 740 F.3d 1088, 1093 (7th Cir.
2014).
But first we must discuss what this case does not involve.
This case does not present the broad question of whether
there can ever be a state-law cause of action for breach of fi-
duciary duty against one who is a “federal fiduciary” for
purposes of veterans’ benefits. The complaint here does not
allege, for example, that the federal fiduciary mismanaged
how Evans’s funds were used for him or that the fiduciary
misappropriated or embezzled his funds. Our case also does
not involve any allegation that the Bank was appointed a fi-
duciary or guardian by the state court, and it is not a case
where the plaintiffs have identified any source of state court
authority over a fiduciary relationship between the Bank and
(…continued)
a statutory defect in removal. See GE Betz, Inc. v. Zee Co., Inc., 718 F.3d
615, 625-26 (7th Cir. 2013).
In addition, although § 1442(a) allows for federal officer or agency
removal, “it is well settled that if the state court lacks jurisdiction over
the subject matter or the parties, the federal court acquires none upon
removal.” Arizona v. Manypenny, 451 U.S. 232, 243 n.17 (1981). (This is
true even in cases where the federal district court would have had juris-
diction if the suit had originally been brought there. Id.) That is, “[t]he
jurisdiction of the federal court upon removal, pursuant to 28 U.S.C. §
1442, is essentially derivative of that of the state court.” Edwards v. United
States Dep’t of Justice, 43 F.3d 312, 316 (7th Cir. 1994). That brings us, then,
to our question of whether the Indiana state court had jurisdiction over
the allegations in the complaint.
No. 13-3054 7
Evans. Rather, this case involves a complaint which alleges
that the Bank breached its fiduciary duties by complying
with the terms of its federal fiduciary agreement with the
VA. Our question is a narrow one, limited by the specific al-
legations made in this complaint.
Congress has given the Secretary of Veterans Affairs the
power to appoint a fiduciary to receive and disburse a bene-
ficiary’s VA benefits:
Where it appears to the Secretary that the interest
of the beneficiary would be served thereby, pay-
ment of benefits under any law administered by
the Secretary may be made directly to the benefi-
ciary or to a relative or some other fiduciary for
the use and benefit of the beneficiary, regardless of
any legal disability on the part of the benefi-
ciary….
38 U.S.C. § 5502(a)(1). The implementing regulations provide
that payment of benefits to a duly recognized fiduciary may
be made on behalf of a person who is mentally incompetent.
38 C.F.R. § 13.59(a). The VA is authorized to “select and ap-
point (or in the case of a court-appointed fiduciary, to rec-
ommend for appointment) the person or legal entity best
suited to receive Department of Veterans Affairs benefits in a
fiduciary capacity for a beneficiary who is mentally ill (in-
competent) or under legal disability by reason of minority or
court action, and beneficiary’s dependents.” 38 C.F.R.
§ 13.55(a).
Congress also provides the Secretary with authority for
supervising fiduciaries:
8 No. 13-3054
Whenever it appears that any fiduciary, in the
opinion of the Secretary, is not properly executing
or has not properly executed the duties of the trust
of such fiduciary or has collected or paid, or is at-
tempting to collect or pay, fees, commissions, or al-
lowances that are inequitable or in excess of those
allowed by law for the duties performed or ex-
penses incurred, or has failed to make such pay-
ments as may be necessary for the benefit of the
ward or the dependents of the ward, then the Sec-
retary may appear … in the court which has ap-
pointed such fiduciary, or in any court having
original, concurrent, or appellate jurisdiction over
said cause, and make proper presentation of such
matters. The Secretary … may suspend payments
to any such fiduciary who shall neglect or refuse,
after reasonable notice, to render an account to the
Secretary … or who shall neglect or refuse to ad-
minister the estate according to law.… The Secre-
tary may appear or intervene … in any court as an
interested party in any litigation instituted by the
Secretary or otherwise, directly affecting money
paid to such fiduciary under this section.
38 U.S.C. § 5502(b). The implementing regulations for
§ 5502(b) found in 38 C.F.R. § 13.100 are entitled “Supervi-
sion of fiduciaries” and further discuss the Secretary’s au-
thority to supervise the fiduciaries he appoints. When the
Secretary deems it necessary to protect the beneficiary’s in-
terests, the Secretary may require a fiduciary to provide an
accounting, 38 C.F.R. § 13.100(a)(1), or may terminate the
appointment of a fiduciary and appoint a successor fiduci-
ary, id. § 13.100(a)(2). If the federal fiduciary has “failed to
No. 13-3054 9
use Department of Veterans Affairs funds for the benefit of
the beneficiary or the beneficiary’s dependents” or “has oth-
erwise failed or neglected to properly execute the duties of
his or her trust,” and informal efforts to correct the situation
prove unsuccessful, then the matter will be referred to the
Regional Counsel. Id. § 13.100(c). The VA’s “supervisory au-
thority [ ] includes the ability to investigate claims of malfea-
sance and to take appropriate action.” Gossett v. Czech, 581
F.3d 891, 899 (9th Cir. 2009) (citing 38 U.S.C. § 5502(b); 38
C.F.R. § 13.100).
Another statute, the Veterans Judicial Review Act
(“VJRA”) of 1988, creates a remedial scheme regarding bene-
fit determinations. “Congress has made clear that the VA is
not an ordinary agency,” and the VJRA reflects that. Shinseki
v. Sanders, 556 U.S. 396, 412 (2009). The VA’s adjudicatory
“process is designed to function throughout with a high de-
gree of informality and solicitude for the claimant.” Hender-
son ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1200 (2011)
(quotation omitted). In fact, the VA has a statutory duty to
help the veteran develop his or her benefits claim. Sanders,
556 U.S. at 412; see 38 U.S.C. § 5103A(1) (requiring Secretary
to make “reasonable efforts to assist a claimant in obtaining
evidence necessary to substantiate the claimant’s claim for a
benefit”).
The relevant part of the VJRA for our case concerns re-
view of decisions, and it provides in relevant part:
The Secretary shall decide all questions of law and
fact necessary to a decision by the Secretary under
a law that affects the provision of benefits by the
Secretary to veterans or the dependents or survi-
vors of veterans. Subject to subsection (b), the de-
10 No. 13-3054
cision of the Secretary as to any such question
shall be final and conclusive and may not be re-
viewed by any other official or by any court,
whether by an action in the nature of mandamus
or otherwise.
38 U.S.C. § 511(a). Subsection (b) provides an exception to
the prohibition against judicial review in (a): certain of the
Secretary’s decisions may be appealed to the Board of Veter-
ans’ Appeals, 38 U.S.C. § 7104, and then reviewed exclusive-
ly by the United States Court of Appeals for Veterans Claims
(“Veterans Court”), 38 U.S.C. § 7252, and from there only by
the United States Court of Appeals for the Federal Circuit, 38
U.S.C. § 7292. The Supreme Court recognized in 2011 that
Veterans Court’s statistics reflect that the Veterans Court had
ordered some form of relief in about 79 percent of its “merits
decisions” in the previous decade. Henderson, 131 S. Ct. at
1201.
The Veterans Court has held that administrative actions
taken pursuant to § 5502 are subject to review through the
application of 38 U.S.C. §§ 511(a) and 7104, that is, judicial
review is exclusively by the Veterans Court and then the
Federal Circuit. Freeman v. Shinseki, 24 Vet. App. 404, 413
(Vet. App. Ct. 2011) (per curiam); see also Veterans for Common
Sense v. Shinseki, 678 F.3d 1013, 1016 (9th Cir. 2012) (en banc)
(“We conclude that we lack jurisdiction to afford such relief
because Congress, in its discretion, has elected to place judi-
cial review of claims related to the provision of veterans’
benefits beyond our reach and within the exclusive purview
of the United States Court of Appeals for Veterans Claims
and the Court of Appeals for the Federal Circuit.”); id. at
1025 (“This preclusion extends not only to cases where adju-
No. 13-3054 11
dicating veterans’ claims requires the district court to deter-
mine whether the VA acted properly in handling a veteran’s
request for benefits, but also to those decisions that may af-
fect such cases.”)
The Bank and VA maintain that jurisdiction over the alle-
gations in the plaintiffs’ complaint lies solely in the Veterans
Court and that the plaintiffs failed to exhaust their adminis-
trative remedies. The VA also argues that with respect to the
claims against it, Congress has not waived the sovereign
immunity of the United States to allow review of the claims
the plaintiffs bring against it. The plaintiffs argue that they
do not challenge the manner in which the Bank handled Ev-
ans’s benefits and do not challenge the VA’s appointment of
the Bank as fiduciary, and so their suit does not fall within
the veterans’ benefits adjudicatory scheme established by
Congress.
But the allegations the plaintiffs brought in this com-
plaint all concern the discretion of the Secretary to designate,
supervise, and remove a federal fiduciary. The complaint
makes allegations regarding whether the Bank was a proper
federal fiduciary and alleges that it was without authority to
administer veteran’s benefits for Evans. See, e.g., ¶ 17 (“The
rights conveyed to Ms. Stump by both the October 2005 Du-
rable Power of Attorney and the October 1, 2010, Order,
were trampled when [the Bank] exerted control over Mr. Ev-
ans’s funds.”), id. (“GBC did not conduct any investigation
or due diligence regarding the existence of any Power of At-
torney or Guardianship appointments before accepting the
federal fiduciary appointment”). The plaintiffs also allege
that the Bank failed to provide the plaintiffs with the legal
basis for holding itself out as Evans’s fiduciary in light of
12 No. 13-3054
Stump’s status as his guardian and attorney-in-fact. ¶ 38
(“Even if initial receipt of Mr. Evans’s funds was free from
wrongdoing, [the Bank]’s refusal to determine whether it
had authority after notice from Plaintiffs of the Power of At-
torney and Guardianship was a breach of GBC’s fiduciary
duties and was wrongful and thus constitutes conversion of
Mr. Evans’s assets.”).
Yet the only way to challenge the VA’s decision to appoint
the Bank as federal fiduciary is through the mechanism set
up by Congress, a mechanism that does not allow for review
by the state court or a federal court in our circuit. The Secre-
tary made the decision to appoint the Bank as federal fiduci-
ary. Any court ruling on the propriety of that appointment
would implicate the Secretary’s authority under 38 U.S.C.
§ 5502; Freeman, 24 Vet. App. at 413 (appointing a federal fi-
duciary affects the provision of benefits under § 5502). In-
deed, the plaintiffs had already taken the statutorily pre-
scribed route to challenge the Bank’s appointment as fiduci-
ary in litigation before the Veterans Court and Federal Cir-
cuit, though their mandamus action was unsuccessful. Their
arguments there included that the Secretary had unlawfully
refused to recognize Stump’s authority as attorney-in-fact
and guardian.
The plaintiffs also allege as misconduct in their complaint
that the terms of the Bank’s appointment as federal fiduciary
were unfair. See ¶ 18 (“[T]he terms of GBC’s appointment
leave little, if any discretion with GBC regarding manage-
ment of Mr. Evans’s funds.”). They allege that the Bank was
wrong to act at the VA’s direction and without independent
discretion. See ¶ 31 (“Defendants have failed to exercise any
independent discretion to do what is best for Mr. Evans, but
No. 13-3054 13
instead have acted only when VA allows them to do so.”); ¶
33 (The Bank “compromis[ed] the fiduciary relationship by
placing [its] self-interest in meeting the VA’s demands over
the best interests of Mr. Evans.”). The complaint asserts that
the Bank followed the VA’s instructions, but that doing so
was improper, and that it declined to release funds to the
plaintiffs without the VA’s approval. ¶¶ 30; 38-41.
In short, the allegations in this complaint are that the
Bank breached its fiduciary duty to Evans in managing his
benefits by complying with its obligations as a federal fiduci-
ary with the VA. Decisions by the Secretary under 38 U.S.C.
§ 502, including the appointment and supervision of fiduci-
aries, are matters “affect[ing] the provision of benefits.” See
38 U.S.C. § 511(a); Freeman, 24 Vet. App. at 413-14. As a re-
sult, they are subject to review only by the Board of Veterans’
Appeals and ultimately by the Veterans Court and Federal
Circuit. See 38 U.S.C. § 511(a). The complaint acknowledges,
and alleges as misconduct, that the Bank complied with its
agreement with the VA and followed the Secretary’s direc-
tions. The way this complaint is pled demonstrates that the
relief sought against the Bank impermissibly intrudes on the
Secretary’s discretion under 38 U.S.C. § 5502(a)(1) and 38
C.F.R. § 13.55(a) to designate, supervise, and remove a feder-
al fiduciary.
The plaintiffs complain that if this case is dismissed they
will be left without a remedy. But our decision does not
mean federal fiduciaries are left unchecked. The federal reg-
ulations provide that when a federal fiduciary fails to use VA
funds for the fiduciary’s benefit, the case can be referred to
the Regional Counsel, 38 C.F.R. § 13.100(c), and if the matter
is criminal also to the United States Attorney, 38 C.F.R.
14 No. 13-3054
§ 38.100(d). Complaints may also be submitted to the VA Of-
fice of Inspector General. See 5 U.S.C. App. 3 §§ 2, 4. And we
again emphasize that our decision is a narrow one. The gov-
ernment is clear that it is not arguing that a state-law breach
of fiduciary claim could never be brought against a federal
fiduciary. This case does not raise claims that the fiduciary
embezzled or mismanaged or misused funds, for example.
The government acknowledges such scenarios may give rise
to state-law causes of action against the fiduciary reviewable
in state court (or federal court if diversity jurisdiction is pre-
sent). Nor does our decision mean that a fiduciary could as-
sert compliance with its obligations as a defense to try to
keep the case out of state court. The complaint here, though,
does not even allege that the fiduciary acted in a way other
than in accordance with its obligations to the Secretary and it
also does not challenge any of the governing statutes or reg-
ulations.
The plaintiffs’ citation to a line in Hardcastle v. Shinseki,
No. 12-1867 (Vet. App. July 17, 2012) (unpublished), does not
result in a contrary result. It is a nonprecedential decision,
and the rules of the United States Court of Appeals for Vet-
erans Claims provide: “A party, intervenor, or amicus curiae
may not cite as precedent any action designated as nonprec-
edential by the Court or any other court, or that was with-
drawn after having been published in a reporter, except
when the cited action has binding or preclusive effect in the
case on appeal (such as via the application of the law-of-the-
case doctrine).” Vet. App. R. 30(a). Federal Rule of Appellate
Procedure 32.1 does provide that a court may not prohibit or
restrict the citation of federal judicial opinions designated as
non-precedential or the like that were issued after January 1,
2007. But while Federal Rule of Appellate Procedure 1 states
No. 13-3054 15
that the rules “govern procedure in the United States courts
of appeals,” the Federal Circuit has explained that the Fed-
eral Rules of Appellate Procedure govern appeals from Arti-
cle III district courts and do not apply in the Court of Ap-
peals for Veterans Claims, an Article I court which prescribes
its own rules. Bailey v. West, 160 F.3d 1360, 1367 (Fed. Cir.
1998) (en banc) (overruled on other grounds). In any event
nothing in the cursory Hardcastle decision indicates what
court would be “a court of competent jurisdiction” for a
breach of fiduciary duty claim against a federal fiduciary.
Furthermore, a lack of remedy does not allow us to exercise
jurisdiction where there is none. Paige v. Cisneros, 91 F.3d 40,
42-43 (7th Cir. 1996) (dismissing claim for lack of jurisdiction
because Congress gave exclusive jurisdiction over civil ser-
vice personnel disputes to Merit Systems Protection Board
even if that meant plaintiff’s action was not reviewable in
any court or administrative tribunal because he did not qual-
ify for Board review).
At bottom, this case is essentially an end-run around ex-
clusive jurisdiction that lies elsewhere for challenges to Sec-
retary decisions. Creative pleading does not create jurisdic-
tion. Cf. Bhatt v. Bd. of Immigration Appeals, 328 F.3d 912, 914-
15 (7th Cir. 2003) (directing dismissal for lack of jurisdiction
where plaintiff recharacterized district court claim to avoid
grant of exclusive jurisdiction to court of appeals). For ex-
ample, § 511(a) does not apply to suits challenging the con-
stitutionality of the statutes underlying veterans benefits
programs, so federal district courts have jurisdiction over
such claims. Johnson v. Robison, 415 U.S. 361, 367-74 (1974).
But “courts do not acquire jurisdiction to hear challenges to
benefits determinations merely because those challenges are
cloaked in constitutional terms,” and so the Second Circuit
16 No. 13-3054
affirmed the dismissal for lack of jurisdiction of a complaint
invoking the Fifth Amendment and styled in part as a consti-
tutional action that was really a challenge to a benefits de-
termination and therefore barred from review by § 511(a).
Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir. 1994); see also Czerk-
ies v. U.S. Dep’t of Labor, 73 F.3d 1435, 1439 (7th Cir. 1996).
The complaint here is really a challenge to a federal fidu-
ciary appointment and to veteran benefits distribution and
as such, we lack jurisdiction over it. Decisions made by the
Secretary regarding benefits about which the plaintiffs take
issue can be challenged in accordance with the statutorily
prescribed process. Indeed, the plaintiffs did just that in the
Veterans Court and Federal Circuit, and now recast allega-
tions made against the Secretary as allegations against the
Bank. The district court was right to grant the motion to
dismiss the case. This conclusion makes it unnecessary for us
to address the Secretary’s sovereign immunity argument.
III. CONCLUSION
The judgment of the district court is AFFIRMED.