Brown v. Eppler et al

Filing 208

OPINION AND ORDER by Judge Claire V Eagan that plaintiff remains obligated to pay appellate filing fee in monthly installments ; granting 194 Motion for Permanent Injunction; denying 200 Motion for Summary Judgment; denying 206 Mot ion for Hearing (Re: 174 Mandate from Circuit Court, 177 Mandate from Circuit Court, 173 Order from Circuit Court, 172 Decision from Circuit Court, 196 Minutes of Status Hearing,,, Setting/Resetting Deadline(s)/Hearing(s),,, Adding/Terminating Party(ies),,, Vacating/Setting Aside Order(s),,,,,, Ruling on Motion for Miscellaneous Relief,, ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
DAVID L. BROWN,

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Plaintiff,
v.
METROPOLITAN TULSA
TRANSIT AUTHORITY,
Defendant.

Case No. 09-CV-0466-CVE-TLW

OPINION AND ORDER
Now before the Court are Plaintiff’s Second and Renewed Request for the Issuance of a
Preliminary Injunction (Dkt. # 194);1 Defendant, Metropolitan Tulsa Transit Authority’s Renewed
Motion for Summary Judgment and Brief in Support (Dkt. # 200).2 The issue before the Court is
whether plaintiff David L. Brown was afforded procedural due process before he was permanently
banned from riding busses operated by the Metropolitan Tulsa Transit Authority (MTTA).3
I.
Brown was a frequent passenger on public transportation in the City of Tulsa, Oklahoma,
and he regularly rode on busses operated by the MTTA. Brown was riding the bus sometime in
2005 or 2006, and he admits that he was having a “dirty conversation” with a female passenger.

1

At a status hearing on November 22, 2013, the Court converted plaintiff’s motion for a
preliminary injunction (Dkt. # 194) into a motion for a permanent injunction. Dkt. # 196.

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Defendant requests an evidentiary hearing before the Court rules on the pending motions,
and this request has been docketed as a separate motion (Dkt. # 206). The Court has
reviewed the parties’ filings and finds that a hearing is unnecessary, and defendant’s motion
for a hearing (Dkt. # 206) is denied.

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To the extent that plaintiff substantively challenges the ban, the Court will not reach those
arguments and the Court will consider only whether plaintiff received procedural due
process before he was banned from riding the bus.

Dkt. # 200-1, at 13. The bus driver overheard the conversation and asked them to stop the
conversation. Id. at 13. However, Brown and the female passenger continued their conversation.
The bus driver stopped the bus, and she told Brown and the passenger to leave the bus. Id. at 14.
MTTA rules prohibit the use of vulgar or offensive language on a city bus. Later in 2005 or 2006,
Brown claims that he was waiting at a bus stop and the bus driver failed to stop the bus. Id. at 16.
Brown made a complaint by telephone to the MTTA call center. Id. at 18. After the complaint was
made, there was an incident at an MTTA bus station when a security guard, J.D. Eppler, believed
that Brown was loitering and he asked Brown to produce an identification card, but Brown refused
to comply with Eppler’s request. Id. at 21-22. Brown became confrontational and he later called
the Tulsa Police Department to complain that Eppler harassed him at the bus station. Id. at 22.
On April 5, 2007, Brown was late for a bus and tried to attract the bus driver’s attention, but
the bus driver did not stop to pick up Brown. Brown waited for another bus to come to the bus stop,
and the same bus returned on its normal route. Id. at 24. Brown got on the bus and paid the fare,
and he asked the bus driver why she did not stop earlier. Id. at 25. The bus driver told Brown that
he was not at the bus stop, and she asked him to have a seat on the bus. Id. Brown engaged in
disruptive behavior, and the bus driver told him to get off the bus. Brown refused to get off the bus
and the bus driver called the police. Id. at 26. After about a minute, Brown started to leave the bus
and he called the bus driver a “nappy haired whore.” Dkt. # 200-7, at 3. Brown was not permitted
to ride the bus for 30 days after the incident. Dkt. # 200-6, at 1. When Brown’s 30 day suspension
was completed, he began riding the bus again in May 2007 and he boarded a bus while he was
intoxicated. Id.; Dkt. # 200-8, at 2. Brown denies that he was intoxicated but he does not dispute
that he was drinking alcohol. Dkt. # 200-1, at 33. Brown was removed from the bus and he initiated

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an altercation with Eppler and a Tulsa County Sheriff’s deputy who was present at the bus stop.
Brown was arrested and he subsequently pled guilty to charges of public intoxication, resisting an
officer, and breach of the peace. Dkt. # 200-9.
MTTA permanently banned Brown from riding the bus due to his repeated disruptive
behavior. Dkt. # 200-4, at 2; Dkt. # 200-7, at 15. In July 2008, Brown confronted Eppler about the
ban, and Eppler told Brown to call the MTTA call center to contest the ban. Dkt. # 200-8, at 2.
Brown did not contact the call center but, instead, he went to MTTA’s office to orally make a
complaint. Dkt. # 200-1, at 39-41; Dkt. # 205, at 9. Brown waited about five minutes and Ray
Willard, the manager of security for MTTA, came out to speak with Brown. Id. at 39-41.
According to Brown, Willard refused to listen to Brown’s complaints and he told Brown to leave.
Dkt. # 200-1, at 41; Dkt. # 200-5, at 9. Brown has made no further complaints to MTTA about his
suspension from riding the bus. However, he has continued to ride the bus when the bus driver does
not recognize him or does not enforce the suspension. Dkt. # 200-8, at 3.
The MTTA has issued transit rules for bus riders and certain conduct is prohibited on MTTA
busses. Customers are advised that “fighting, throwing of any object, pushing, rough or loud
behavior, or vulgar language” is prohibited. Dkt. # 200-3, at 31. “Unnecessary conversation to the
operator can be a distraction as well.” Id. at 31. The transit rules plainly state that “[f]ailure to
abide by these rules will result in the removal or expulsion of the individual or individuals from
Tulsa Transit Property.” Id. at 31. The transit rules provide a telephone number for customer
comments or information. Id. at 17. MTTA also has a Customer and General Public Feedback
Policy (the Policy), and the objectives of the Policy are to:

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Provide a higher level of customer service for transit customers;

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Document information received from customers and the general public to
better serve the present and future transit needs of the customers and
community;

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Timely respond to customer and the general public requests and issues; and,

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Evaluate transit policies and procedures while increasing efficiency,
reliability, and service to our customers and the community.

Dkt. # 200-5, at 1. There is a process for making complaints alleging discrimination on the basis
of race, color, or national origin, but the Policy does not specifically provide a procedure for
contesting a suspension or ban. Id. at 3, 6.
In July 2009, Brown filed this case alleging that MTTA and other defendants violated his
constitutional rights by banning him from the bus. Dkt. # 1. Defendants filed a motion for summary
judgment and the motion was granted. The Court found that plaintiff had not established that he had
a liberty or property interest and he was not entitled to minimal due process before his right to ride
the bus could be taken away. Dkt. # 136. The Court also found no evidence that plaintiff was
discriminated against because of his race, and he could not establish a violation of the Equal
Protection Clause. Brown appealed and the Tenth Circuit Court of Appeals reversed and remanded
the case for further proceedings on Brown’s procedural due process claim. Dkt. # 172. The Tenth
Circuit found that the MTTA had adopted rules that constrained its discretion to deny services, and
these rules gave rise to legitimate claim of entitlement to access MTTA transportation as long as a
patron complies with the rules. Id. at 9-10. The Tenth Circuit remanded the case for consideration
of whether Brown received sufficient process. Id. at 11.

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II.
Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain language of
Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.
Celotex, 477 U.S. at 317. “Summary judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are
designed ‘to secure the just, speedy and inexpensive determination of every action.’” Id. at 327.
“When the moving party has carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts. . . . Where the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there
is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the [trier of fact] could
reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court
is “whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Id. at 250. In its review,
the Court construes the record in the light most favorable to the party opposing summary judgment.
Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).

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III.
MTTA argues that plaintiff had notice of MTTA’s complaint procedures and he could have
contested his ban, but that he failed to take advantage of the procedures available to him. Dkt. #
200, at 21-22. Plaintiff responds that he was not given an opportunity to contest his ban from riding
busses operated by the MTTA, and he seeks a permanent injunction allowing him to ride the bus and
monetary damages. Dkt. # 194.
Under the Fourteenth Amendment to the United States Constitution, “[n]o State shall . . .
deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. amend.
XIV. A person alleging the denial of procedural due process must prove two elements: (1) “that he
possessed a constitutionally protected liberty or property ‘interest such that the due process
protections were applicable;’” and (2) “that he was not ‘afforded an appropriate level of process.’”
Couture v. Board of Educ. of Albuquerque Public Schools, 535 F.3d 1243, 1256 (10th Cir. 2008).
Property interests are not derived directly from the Constitution, but they “are created and their
dimensions are defined by existing rules or understandings that stem from an independent source
such as state law.” Zwygart v. Board of County Commissioners of Jefferson County, Kansas, 483
F.3d 1086, 1093 (10th Cir. 2007). In this case, the Tenth Circuit has already determined that
defendant had a property interest in riding the bus based on the MTTA’s transit rules. Dkt. # 172,
at 10 (“Because the MTTA has limited its own discretion to ban riders to a set of clearly defined
circumstances, Brown has a ‘legitimate claim of entitlement’ to access to MTTA transportation so
long as he complies with its rules and regulations, and, hence, a protected property interest under
the Due Process Clause of the Fourteenth Amendment”).

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“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful
time and in a meaningful manner.’” Lawrence v. Reed, 406 F.3d 1224, 1233 (10th Cir. 2005). To
determine how much process is due, a court must consider three factors: “(1) the private interests
that will be affected by the official action; (2) the risk of erroneous deprivation; and (3) the burden
on the government from additional procedural requirements.” Couture, 535 F.3d at 1258. Due
process is a flexible concept that “calls for such procedural protections as the particular situation
demands,” and a hearing “need not necessarily provide all, or even most, of the protections afforded
by a trial.” Guttman v. Khalsa, 669 F.3d 1101, 1114 (10th Cir. 2012). In most cases, the Due
Process Clause requires “that an individual be given an opportunity for a hearing before he is
deprived of any significant property interest.” Riggins v. Goodman, 572 F.3d 1101, 1108 (10th Cir.
2009). Pre-deprivation process may be omitted in “extraordinary situations where some valid
governmental interest is at stake that justifies postponing the hearing until after the event.” Elwell
v. Byers, 699 F.3d 1208, 1217 (10th Cir. 2012). When matters of public health or safety are
concerned, state actors may be required to act quickly and due process requires only a
postdeprivation opportunity to challenge the state action. Camuglia v. The City of Albuquerque,
448 F.3d 1214, 1221 (10th Cir. 2006).
MTTA has included a copy of its transit rules as part of the summary judgment record. Dkt.
# 200-3. MTTA expressly prohibits “[f]ighting, throwing of any objects, pulling, rough, or loud
behavior, or vulgar language.” Id. at 15. “Failure to abide by these rules will result in the removal
or expulsion of the individual or individuals from Tulsa Transit Property.” Id. The rules do not state
a procedure for banning a person from MTTA transportation or for contesting a suspension or ban.

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There is a list of telephone numbers but the transit rules do not provide a specific number for
contesting a suspension. Id. at 2. Willard states that it is:
MTTA’s policy that when an individual is banned from MTTA bus use, that case is
reviewed individually to determine if suspension of services will be lifted,
temporarily suspended or modified to include some services or station access. The
person receiving the suspension is advised to contact the Manager of Security to
initiate the process for review to remove or modify the suspension. The person’s
case is reviewed with the officer(s) that have had contact and reported on the case(s)
as well as other activity that has required contact with security and/or law
enforcement.
Dkt. # 200-4, at 2-3.
In this case, the evidence is clear that plaintiff did not receive a pre-deprivation hearing
before he was banned from riding MTTA busses, and MTTA argues that plaintiff’s repeated
disruptive conduct required it to take quick action to protect other customers who rode the bus. Dkt.
# 200-4, at 2. Plaintiff does not argue that a pre-deprivation hearing was required but, instead, he
states that he was “not allowed any type of hearing after the arbitrary ban . . . .” Dkt. # 205, at 2.
The evidence shows that plaintiff was ordered to leave a bus in April 2007, and the bus driver was
required to call the police for assistance in removing plaintiff from the bus. While waiting for the
police, plaintiff called the bus driver a “nappy haired whore.” Plaintiff received a 30 day suspension
following the incident. In May 2007, plaintiff was riding the bus while intoxicated and he was
removed from the bus. After he was removed from the bus, plaintiff started an altercation with a
Tulsa County Sheriff’s deputy and he was arrested on charges of public intoxication, resisting an
officer, and breach of the peace. Based on these facts, it was reasonable for MTTA to act quickly
to prevent plaintiff from riding the bus, and the Court does not find that a pre-deprivation hearing
was required.

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Defendant argues that it provided sufficient post-deprivation remedies to plaintiff after
banning him from the bus. The decision to ban plaintiff from riding the bus was made in May 2007,
and defendant claims that plaintiff was aware of the ban. Dkt. # 200, at 18. However, there is no
evidence in the record that any attempt was made to give plaintiff formal notice. The only evidence
establishing that plaintiff received notice of his ban is that an MTTA security guard, Eppler, told
plaintiff in July 2008 that he was banned and that plaintiff could contact the MTTA call center to
contest the ban. Dkt. # 200-8. The Policy provides that certain types of complaints may be made
to the call center, but the Policy does not state that the call center has any process for hearing
challenges to a ban or suspension. Dkt. # 200-5. In August 2008, plaintiff went to MTTA’s office
to contest the ban and he asked to speak to someone about the ban. Willard came out to speak to
plaintiff, and the only evidence in the record is that Willard told plaintiff to leave without hearing
any argument from plaintiff. Dkt. # 205, at 9. Defendant argues that plaintiff was aware of the rules
of conduct for riding the bus and he repeatedly engaged in disruptive conduct and, even if more
process had been provided to plaintiff, MTTA would not changed its decision to ban plaintiff from
riding the bus. Dkt. # 200-4, at. 3.
Considering the three factors stated in Couture, the Court finds that defendant failed to
provide plaintiff sufficient procedures to challenge his ban, and plaintiff’s rights under the Due
Process Clause were denied. The first factor for the Court to consider is the private interest at issue.
Defendant argues that plaintiff has a relatively minimal private interest in riding the bus, because
he continued to earn income after the ban was imposed and he continued to ride the bus even with
the ban. Dkt. # 200, at 18. However, plaintiff testified at his deposition that it was difficult for him
to maintain employment without access to public transportation. Dkt. # 200-1. Even if the ban did

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not entirely deprive plaintiff of his ability to earn a livelihood, the Court finds that plaintiff had a
substantial interest in maintaining employment and there is evidence suggesting that the ban
interfered with his ability to work. While plaintiff’s conduct may have necessitated quick action to
protect other patrons, he had a significant private interest in receiving some type of post-deprivation
procedure in which he could have challenged the ban. The second factor (risk of erroneous
deprivation) also weighs in favor of providing some type of formal procedure to contest a ban from
MTTA busses. This factor requires the Court to consider the amount of process actually provided
and whether the defendant took steps to minimize the risk of an erroneous deprivation of the
plaintiff’s private interest. Ward v. Anderson, 494 F.3d 929 (10th Cir. 2007). In this case, the
evidence shows that MTTA made a decision to ban plaintiff from the bus, but it is unclear who was
involved in making the decision or what evidence was considered. Plaintiff was not formally
advised of the ban or given a meaningful opportunity to contest the ban. In fact, it does not appear
that MTTA took any steps to provide a post-deprivation hearing to plaintiff, and there was a
substantial risk of erroneous deprivation of plaintiff’s private interest. The third factor (burden on
the government) does not weigh against having some type of formal procedure in place to allow a
MTTA customer to contest a suspension or ban. At best, MTTA provides an informal procedure
for an aggrieved customer to challenge a ban, but there is no evidence that MTTA gives actual
notice of the ban to a customer or that it has rules in place to govern a customer’s attempt to
challenge a ban. The Court acknowledges that many MTTA customers may not have a permanent
address where notice can be given, and this makes the process of providing notice more difficult.
Even with this consideration, MTTA has not offered any evidence showing that it attempted to give
plaintiff actual notice of the ban or that it provided any meaningful post-deprivation opportunity to

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challenge the ban. The informal procedures allegedly provided by MTTA to challenge a ban were
not sufficient under the circumstances, and plaintiff has established a violation of his constitutional
rights.
Defendant argues that plaintiff waived his right to a post-deprivation hearing, because he did
not actually request a hearing after learning of the ban. The Court has found no evidence that
MTTA actually attempted to provide plaintiff notice of the ban, and it appears that plaintiff learned
of the ban after talking to Eppler about a year after the ban was imposed. When plaintiff went to
MTTA’s office, he claims that he was turned away without any type of hearing. Under the
circumstances, the Court does not find that plaintiff waived his right to procedural due process.
After the case is concluded and some type of hearing is provided, plaintiff is advised that he may
waive his right to procedural due process by failing to take advantage of the process offered to him.
Farhat v. Jopke, 370 F.3d 580 (6th Cir. 2004); Krentz v. Robertson, 228 F.3d 897, 904 (8th Cir.
2000). However, since no formal post-deprivation procedure was in place, the Court does not find
that plaintiff could have waived his right to post-deprivation process to challenge the ban.
Plaintiff has established that his rights under the Due Process Clause were violated and the
Court must determine what remedy is appropriate to redress the constitutional violation. “The
deprivation of constitutional rights, standing alone, does not entitle a plaintiff to general damages.”
Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir. 2006). Nominal damages are available without
a showing of compensable injury. Id. Defendant argues that plaintiff has failed to establish that he
suffered actual injury from the ban, because he has continued to ride the bus after the ban was
imposed. Dkt. # 24. Defendant also claims that the ban would likely have remained in place even
if more procedure had been provided to plaintiff. Id. Plaintiff has wholly failed to respond to these

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arguments in his response to defendant’s motion for summary judgment. Although plaintiff’s
deposition testimony establishes that he lost some opportunity for employment, the Court would be
speculating if it awarded compensatory damages to plaintiff based only on his somewhat vague
deposition testimony. Plaintiff was aware that defendant challenged his right to recover monetary
damages and he has failed to make any attempt to show that such damages would be appropriate.4
In light of the constitutional violation found by the Court, plaintiff should be awarded nominal
damages only. Defendant also argues that any type of injunctive relief should also be denied,
because plaintiff has not shown that he has suffered an irreparable injury. Dkt. # 200, at 26. A party
seeking a permanent injunction has the burden to show:
(1) actual success on the merits; (2) irreparable harm unless the injunction is issued;
(3) the threatened injury outweighs the harm that the injunction may cause the
opposing party; and (4) the injunction, if issued, will not adversely affect the public
interest.
Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175, 1180 (10th Cir. 2003). The Court has
found that a constitutional violation occurred, and plaintiff has established success on the merits.
The Court has also found that plaintiff has a significant private interest in riding the bus, and
monetary damages would be unlikely to remedy the constitutional violation found by the Court. See
Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1259 (10th Cir. 2003) (irreparable harm
present when there is a significant risk that money damages will not adequately compensate the
plaintiff). In particular, the injury alleged by plaintiff is interference with his right to ride the bus

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The Court notes that plaintiff has requested a hearing on defendant’s motion for summary
judgment, but he does not specify what issues would require a hearing. In any event,
plaintiff’s request for a hearing does not satisfy his obligation to properly respond to a
motion for summary judgment, and the Court does not find that it necessary to set a hearing
to determine the appropriate remedy in this case.
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and he claims that this prospectively interferes with his right to earn a living, and money damages
would not reduce the risk of future injury to plaintiff if he is not permitted to challenge the ban
imposed by the MTTA. As to the third factor for issuance of a preliminary objection, the threatened
injury of not providing plaintiff some procedure to challenge his suspension from riding MTTA
busses outweighs the minimal inconvenience to defendant in providing some type of hearing to
plaintiff to allow him to challenge his ban. As to the public interest factor, the Court notes that
plaintiff previously engaged in disruptive conduct while riding the bus, and there is a public interest
in ensuring the safety of other passengers on the bus. However, this public interest does not weigh
against providing plaintiff procedural due process to challenge the ban. Plaintiff is advised that
nothing in this Opinion and Order should be construed as a finding that plaintiff’s right to ride the
bus should be restored. Instead, the claim before the Court is limited to whether plaintiff received
procedural due process, and the Court has found that plaintiff should have been afforded some postdeprivation procedure to challenge his ban from the bus. The Court will enter judgment and a
permanent injunction requiring that MTTA provide plaintiff a hearing to determine if the ban should
remain in place, and plaintiff must be permitted to make arguments and present evidence in support
of his request to rescind the ban.5
IV.
On appeal, the Tenth Circuit found that defendant was incarcerated when the notice of appeal
was filed, and it found that the provisions of the Prisoner Litigation Reform Act, 28 U.S.C. § 1915

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Plaintiff is further advised that, during court hearings, he had a tendency to engage in
disruptive behavior and his court filings contain numerous instances of unsupported
accusations and name calling directed at defendants. He should refrain from such behavior
at the post-deprivation hearing and, if plaintiff engages in disruptive behavior, MTTA may
consider this as evidence that the ban should remain in place.
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(PLRA) applied to plaintiff’s request to proceed in forma pauperis on appeal. Dkt. # 172, at 15-16.
The Tenth Circuit determined that plaintiff should have paid an initial partial appellate filing fee and
any additional monthly payments while he was incarcerated, but it directed this Court to calculate
the amount owed by plaintiff. The documents submitted by plaintiff shows that he had a balance
of $191.54 in his prison account as of July 12, 2011. Under the PLRA, defendant was obligated to
pay twenty percent of his account balance, or $38.30, and there is no evidence that plaintiff
subsequently received income in his prison account that would require additional payments.
However, as noted by the Tenth Circuit, plaintiff remains obligated to pay the full amount of his
appellate filing fee6 in the same manner as any other litigant who is permitted to proceed in forma
pauperis.
IT IS THEREFORE ORDERED that plaintiff’s motion for a permanent injunction (Dkt.
# 194) is granted, and Defendant, Metropolitan Tulsa Transit Authority’s Renewed Motion for
Summary Judgment and Brief in Support (Dkt. # 200) is denied. A separate judgment and
permanent injunction is entered herewith.
IT IS FURTHER ORDERED that defendant’s motion for a hearing (Dkt. # 206) is denied.
IT IS FURTHER ORDERED that plaintiff is obligated to pay $38.30 immediately to the
Court Clerk in satisfaction of his obligations under the PLRA. In addition, plaintiff shall pay the
full amount of the balance of the appellate filing fee ($411.70) in monthly installments of $10 ,
starting in May 2014 until paid in full.
DATED this 24th day of April, 2014.

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The appellate filing fee when plaintiff filed his notice of appeal was $450. The appellate
filing fee has since increased to $505, but plaintiff is obligated to pay only up to the $450
filing fee in effect when he initiated his appeal.
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