Dupree v. Younger

Justia (with opinion) · Docket · oyez.org

Argued on Apr 24, 2023.
Decided on May 25, 2023.

Petitioner: Neil Dupree.
Respondent: Kevin Younger.

Advocates:

• Andrew T. Tutt (for the Petitioner)

Facts of the case (from oyez.org)

Kevin Younger was a pretrial detainee at a state prison in Baltimore, Maryland. One morning, three guards attacked Younger and other inmates at the direction of Neil Dupree, an intelligence lieutenant at the prison. Younger sued Dupree under 42 U.S.C. § 1983, claiming that Dupree violated his Fourteenth Amendment due process rights. The district court rejected Dupree’s argument that Younger’s suit was barred for failure to exhaust administrative remedies, as required by the Prison Litigation Reform Act (PLRA). Dupree appealed that conclusion.

The U.S. Court of Appeals for the Fourth Circuit concluded that Dupree was precluded from challenging the district court’s decision because Dupree raised the claim in a pretrial motion for summary judgment but did not raise it again in a post-trial motion.

Question

To preserve the issue for appellate review, must a party reassert in a post-trial motion a purely legal issue rejected at summary judgment?

Conclusion

A post-trial motion under Federal Rule of Civil Procedure 50 is not required to preserve for appellate review a purely legal issue resolved at summary judgment. Justice Amy Coney Barrett authored the unanimous opinion of the Court.

In Ortiz v. Jordan, 562 U.S. 180 (2011), the Court held that a party whose sufficiency-of-the evidence challenge was rejected at the summary judgment stage must reassert the claim in a post-trial motion to preserve it for appeal. That decision was based on the reasoning that the factual record developed at trial supersedes the record existing at the time of summary judgment.

When the motion for summary judgment is based on a purely legal question—rather than on the factual record—no subsequent proceedings in the trial court supersede conclusions of law. Thus, when a pure question of law is resolved in an order denying summary judgment, the party need not reassert the claim in a post-trial motion to preserve it on appeal.

The Court did not decide whether the issue Dupree raised on appeal is purely legal, so it remanded the case for the Fourth Circuit to answer that question.

Counterman v. Colorado

Wikipedia · Justia (with opinion) · Docket · oyez.org

Argued on Apr 19, 2023.
Decided on Jun 27, 2023.

Petitioner: Billy Raymond Counterman.
Respondent: The People of the State of Colorado.

Advocates:

• John P. Elwood (for the Petitioner)

Facts of the case (from oyez.org)

Billy Raymond Counterman repeatedly contacted a person over Facebook in 2014, sending her “creepy” messages from numerous different accounts even after she repeatedly blocked him. Some of the messages implied that Counterman was watching her and saying that he wanted her to die or be killed. She reported Counterman to law enforcement, who arrested him in 2016. He was charged with one count of stalking (credible threat), one count of stalking (serious emotional distress, and one count of harassment; before trial, the prosecution dismissed the count of stalking (credible threat).

Counterman claimed that the remaining charges, as applied to his Facebook messages, would violate his right to free speech under the  First Amendment because they were not “true threats.” The trial court denied his motion to dismiss, and a jury found him guilty of stalking (serious emotional distress). The Colorado Court of Appeals affirmed his conviction.

Question

To establish that a statement is a "true threat" unprotected by the First Amendment, must the government show that the speaker subjectively knew or intended the threatening nature of the statement?

Conclusion

To establish that a statement is a “true threat” unprotected by the First Amendment, the government must prove that the defendant had some subjective understanding of the statements’ threatening nature, based on a showing no more demanding than recklessness. Justice Elena Kagan authored the majority opinion of the Court.

While the First Amendment protects freedom of speech, it allows for restrictions of so-called “true threats.” A true threat is determined by the recipient’s perception, not the speaker’s intent. However, to prevent chilling protected speech, there must be a subjective mental-state requirement. This means that the speaker’s understanding of the threat is crucial. A recklessness standard—where a person consciously disregards a significant risk that their words might harm another—is the appropriate measure for true threats because it strikes a balance between safeguarding free speech and addressing genuine threats. In Counterman’s case, the government used only an objective standard, without considering Counterman’s understanding of his statements as threatening, in violation of the requirements of the First Amendment.

Justice Sonia Sotomayor authored an opinion concurring in part and concurring in the judgment, in which Justice Neil Gorsuch joined in part. Justice Sotomayor would not reach the question whether recklessness is sufficient for true-threats prosecutions generally.

Justice Clarence Thomas authored a dissenting opinion criticizing the majority for relying on New York Times Co. v. Sullivan instead of applying the First Amendment as it was understood at the time of the Founding.

Justice Amy Coney Barrett authored a dissenting opinion, in which Justice Thomas joined, arguing that true threats do not enjoy First Amendment protection, and nearly every other category of unprotected speech may be restricted using an objective standard.

U.S. ex rel. Schutte v. SuperValu Inc.

Justia (with opinion) · Docket · oyez.org

Argued on Apr 18, 2023.
Decided on Jun 1, 2023.

Petitioner: Unites States of America, Ex. Rel. Schutte, et al..
Respondent: SuperValu Inc., et al..

Advocates:

• Tejinder Singh (for the Petitioners)

Facts of the case (from oyez.org)

SuperValu owned or operated approximately 2,500 grocery stories with over 800 in-store pharmacies between 2006 and 2016. To compete with other pharmacies, SuperValu stores implemented a prescription price-matching program, under which it would match lower prescription prices of competitors. However, SuperValu did not report its price-match program prices as its usual and customary price, in violation of Medicaid regulations.

Tracy Schutte and Michael Yarberry (the “Relators”) sued SuperValu under the False Claims Act on behalf of the federal government and several states. They alleged that SuperValu knowingly caused false payment claims to be submitted to government healthcare programs between 2006 and 2016 by incorrectly reporting their drug prices. The federal government did not intervene in the case.

The district court concluded that the Relators had failed to prove the “scienter” element of their FCA claim—that is, they failed to show SuperValu that SuperValu’s interpretation of the reporting requirement was objectively unreasonable at the time. The U.S. Court of Appeals for the Seventh Circuit affirmed.

Question

Is a defendant’s contemporaneous subjective understanding about the lawfulness of its conduct relevant to whether it “knowingly” violated the False Claims Act?

Conclusion

The False Claims Act’s scienter element refers to a defendant’s knowledge and subjective beliefs, not to what an objectively reasonable person may have known or believed. Justice Clarence Thomas authored the opinion for a unanimous Court.

Both the text and common-law origins of the False Claims Act support an understanding of the scienter as focusing on the subjective knowledge of the defendant. It describes a three-part definition of the word “knowingly” that largely tracks the common-law concept of scienter for fraud: actual knowledge, deliberate indifference, or recklessness. Each of these concepts pertains to the defendant’s lack of an honest belief in the statement’s truth when making the claim, not what a defendant might have thought afterward.

Groff v. DeJoy

Wikipedia · Justia (with opinion) · Docket · oyez.org

Argued on Apr 18, 2023.
Decided on Jun 29, 2023.

Petitioner: Gerald E. Groff.
Respondent: Louis DeJoy, Postmaster General.

Advocates:

• Aaron M. Streett (for the Petitioner)

Facts of the case (from oyez.org)

Gerald Groff is a Christian and U.S. Postal Service worker. He refused to work on Sundays due to his religious beliefs. USPS offered to find employees to swap shifts with him, but on numerous occasions, no co-worker would swap, and Groff did not work. USPS subsequently fired him.

Groff sued USPS under Title VII of the Civil Rights Act of 1964, claiming USPS failed to reasonably accommodate his religion because the shift swaps did not fully eliminate the conflict. The district court concluded the requested accommodation would pose an undue hardship on USPS and granted summary judgment for USPS. The U.S. Court of Appeals for the Third Circuit affirmed.

Question

Is inconvenience to coworkers an “undue burden” under Title VII of the Civil Rights Act of 1964 such that it excuses an employer from providing an accommodation requested for religious exercise?

Conclusion

Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. Justice Samuel Alito authored the opinion for the unanimous Court.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on religion, and subsequent regulations issued by the EEOC required employers to make reasonable accommodation of an employee's religious beliefs unless doing so would cause “undue hardship” to the employer. In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), the Supreme Court held that Title VII does not require an employer who uses a seniority system to assign shifts to deprive senior employees of their seniority rights in order to accommodate a junior employee’s religious practices. The Hardison decision also inadvertently established a “more than de minimis” test for hardship; courts interpreted that decision to mean that any cost or hardship “more than de minimis” justifies denying a religious accommodation. Revisiting that interpretation, the Court rejected the “de minimis cost” standard and adopted instead a “substantial increased costs” standard consistent with the spirit and language of Title VII.

Justice Sonia Sotomayor authored a concurring opinion, in which Justice Ketanji Brown Jackson joined.

Pugin v. Garland

Justia (with opinion) · Docket · oyez.org

Argued on Apr 17, 2023.
Decided on Jun 22, 2023.

Petitioner: Jean Francois Pugin.
Respondent: Merrick B. Garland, Attorney General.

Advocates:

• Curtis E. Gannon (for Merrick B. Garland, Attorney General)

Facts of the case (from oyez.org)

Jean Francois Pugin is a citizen of Mauritius who has lived in the United States as a lawful permanent resident for nearly 40 years. The government began deportation proceedings against Pugin after he was found guilty of being an accessory after the fact to a felony. The Immigration and Nationality Act authorizes removal upon conviction for an “aggravated felony,” including felonies relating to obstruction of justice.

Despite Pugin’s argument to the contrary, the Board of Immigration appeals concluded that Virginia’s accessory after the fact to a felony constituted an offense relating to obstruction of justice, and the U.S. Court of Appeals for the Fourth Circuit affirmed.

Question

Is Virginia’s offense of accessory after the fact to a felony an “offense relating to obstruction of justice” under the Immigration and Nationality Act?

Conclusion

Virginia’s offense of accessory after the fact to a felony is an offense “relating to” obstruction of justice under the Immigration and Nationality Act’s definition of an “aggravated felony.” Justice Brett Kavanaugh authored the 6-3 majority opinion of the Court.

An offense can be categorized as “relating to obstruction of justice” under §1101(a)(43)(S) without a requirement for an ongoing investigation or proceeding. This understanding is supported by dictionary definitions, federal and state laws, and the Model Penal Code. Obstruction of justice can occur even if no formal investigation or proceeding is active. The phrase “relating to” in the statute further broadens its applicability, ensuring it encompasses offenses connected to obstruction of justice, irrespective of a pending investigation. Even if certain provisions might require a pending investigation or proceeding, §1101(a)(43)(S) has a more expansive definition. Historical interpretations do not mandate a pending investigation for obstruction of justice. The rule of lenity, which favors defendants in ambiguous criminal laws, does not apply because traditional interpretation tools clearly defined the statute’s intent.

Justice Ketanji Brown Jackson joined the majority opinion in full but concurred separately to note that when Congress inserted the phrase “offense relating to obstruction of justice” into §1101(a)(43)(S), it might well have been referencing a specific and previously designated category of offenses of obstruction, many of which do not have a pending-proceeding requirement.

Justice Sonia Sotomayor authored a dissenting opinion, in which Justices Neil Gorsuch and Elena Kagan joined, arguing that the Court “subverts” the commonly understood meaning of “obstruction of justice.”

Slack Technologies v. Pirani

Justia (with opinion) · Docket · oyez.org

Argued on Apr 17, 2023.
Decided on Jun 1, 2023.

Petitioner: Slack Technologies, LLC, fka Slack Technologies, Inc., et al..
Respondent: Fiyyaz Pirani.

Advocates:

• Thomas G. Hungar (for the Petitioners)

Facts of the case (from oyez.org)

On June 20, 2019, tech company Slack went public through a direct listing, which, unlike an initial public offering (IPO), does not involve the company issuing new shares and instead involves only filing a registration statement to allow existing shareholders to sell their shares on the exchange. Shares made available by a direct listing are sold directly to the public and not through a bank.

Fiyyaz Pirani purchased 30,000 Slack shares at $38.50 per share on the day it went public and went on to purchase another 220,000 over several months. Subsequently, the share price dropped below $25. On September 19, 2019, Pirani brought a class action lawsuit against Slack, alleging that Slack’s registration statement was inaccurate and misleading because it did not disclose information about its service disruptions and how it compensated customers for those disruptions.

The district court held that Pirani had standing to sue Slack even though he could not prove that his shares were issued under the registration statement he said was inaccurate. On appeal, a panel of the U.S. Court of Appeals for the Ninth Circuit affirmed over one dissenting vote.

Question

Do Sections 11 and 12(a)(2) of the Securities Act of 1933 require plaintiffs to plead and prove that they bought shares registered under the registration statement they claim is misleading?

Conclusion

To state a claim under §11(a) of the Securities Act of 1933, a plaintiff must allege the purchase of “such security” issued pursuant to a materially misleading registration statement. Justice Neil Gorsuch authored the unanimous opinion of the Court.

Section 11 of the Securities Act of 1933 authorizes an individual to sue for a material misstatement or omission in a registration statement when the individual has acquired “such security.” Normally, the word “such” refers to something that has already been described, but because there is no clear referent in Section 11, the Court looked for clues from the statutory context.

First, the statute refers to “the” registration statement in imposing liability for false statements or misleading omissions. The definite article “the” suggests that the plaintiff must acquire the security. Second, the statute repeatedly uses the word “such” to narrow the law’s focus, suggesting “such security” refers to a specific security registered under the particular statement that allegedly has a falsehood or misleading omission. Still other provisions further support the understanding that “such security” means a security issued pursuant to the allegedly misleading security statement.

Samia v. United States

Wikipedia · Justia (with opinion) · Docket · oyez.org

Argued on Mar 29, 2023.
Decided on Jun 23, 2023.

Petitioner: Adam Samia, aka Sal, aka Adam Samic.
Respondent: United States.

Advocates:

• Kannon K. Shanmugam (for the Petitioner)

Facts of the case (from oyez.org)

Defendants Joseph Manuel Hunter, Carl David Stillwell, and Adam Samia were tried jointly and convicted on five counts: conspiracy to commit murder-for-hire, murder-for-hire, conspiracy to murder and kidnap in a foreign country, causing death with a firearm during and relation to a crime of violence, and conspiracy to launder money. All three defendants were sentenced to life imprisonment.

One piece of evidence used to convict the defendants was Stillwell’s redacted confession. Samia challenged the admission of that evidence, arguing that the redactions were insufficient because jurors would immediately infer that the confession’s references to “another person” referred to Samia himself. As such, Samia argued, his inability to cross-examine Stillwell violated his Sixth Amendment right to confront witnesses against him. The U.S. Court of Appeals for the Second Circuit disagreed and affirmed the district court’s evidentiary ruling on that issue.

Question

Does admitting a codefendant’s redacted out-of-court confession that immediately inculpates a defendant based on context violate the Confrontation Clause of the Sixth Amendment?

Conclusion

The admission of a non-testifying codefendant’s confession did not violate the Sixth Amendment’s Confrontation Clause where the confession as modified did not directly inculpate the defendant but used the descriptor “other person” and the jury was instructed to consider the confession only as to the codefendant. Justice Clarence Thomas authored the majority opinion of the Court.

Historically, a non-testifying codefendant’s confession was permissible if the jury was instructed not to consider it against the nonconfessing defendant. The Court in Bruton v. United States, 391 U. S. 123, recognized an exception to that general rule, holding “that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a non-testifying codefendant is introduced at their joint trial,” even with a proper instruction. However, the Court established certain outer limits on the Bruton rule. For example, in Richardson v. Marsh, the Court did not extend the rule to confessions that do not name the defendant, although, in Gray v. Maryland, 523 U.S. 185, the Court clarified that some redacted confessions might still be directly accusatory if the redaction is evident.

Here, the confession was redacted to avoid naming the defendant, aligning with the Bruton rule and differing from the confession in Gray. The Court declined to further extend the Bruton rule, reasoning that its extension would disrupt historical practices and necessitate extensive pretrial hearings, potentially leading to mandatory severance in joint trials when introducing a non-testifying codefendant's confession. This would undermine the role of joint trials and the significance of confessions in the legal system.

Justice Amy Coney Barrett joined the majority opinion except the historical discussion, which, in her separate concurrence, she argues is beside the point. She would limit consideration to the meaning of the Confrontation Clause at the time of the founding and reach the same conclusion.

Justice Elena Kagan authored a dissenting opinion, in which Justices Sonia Sotomayor and Ketanji Brown Jackson joined, arguing that the non-testifying codefendant’s confession in this case inculpated the defendant in the same way that the Court recognized it would in other cases. Justice Kagan criticized the majority for “permit[ting] an end-run around [the Court’s] precedent and undermin[ing] a vital constitutional protection for the accused.”

Polselli v. Internal Revenue Service

Justia (with opinion) · Docket · oyez.org

Argued on Mar 29, 2023.
Decided on May 18, 2023.

Petitioner: Hanna Karcho Polselli, et al..
Respondent: Internal Revenue Service.

Advocates:

• Shay Dvoretzky (for the Petitioners)

Facts of the case (from oyez.org)

Remo Polselli underpaid his federal taxes for over a decade, with an outstanding balance of over $2 million. In pursuit of those unpaid liabilities, the Internal Revenue Service (IRS) issued administrative summonses to the banks of Polselli’s wife and lawyers. The IRS did not notify Polselli’s wife or lawyers of the summonses, relying on the exception in the Internal Revenue Code § 7609(c)(2)(D)(i), which excludes from the notice requirement summonses issued “in aid of the collection” of tax assessments.

The district court concluded that the summonses fell within the exception and that Polselli’s wife and lawyers were not entitled to notice. The U.S. Court of Appeals for the Sixth Circuit affirmed.

Question

Does the exception in I.R.C. § 7609(c)(2)(D)(i) to the notice requirements for an Internal Revenue Service summons on third-party recordkeepers apply to a summons for anyone’s records whenever the IRS thinks that person’s records might somehow help it collect a delinquent taxpayer’s liability?

Conclusion

The exception to the notice requirements described in I.R.C. § 7609(c)(2)(D)(i) applies to a summons for anyone’s records, regardless of whether the delinquent taxpayer has a legal interest in the accounts or records summoned. Chief Justice John Roberts wrote the opinion for the unanimous Court.

The IRS has the power to pursue unpaid taxes and the people who owe them. In exercising that power, the IRS may issue a summons, including to third parties, to determine the liability of a taxpayer. In general, such summons require the IRS to give notice to any person identified in the summons. Anyone who is entitled to notice may bring a motion to quash the summons in federal district court, which ordinarily individuals may not do because of the sovereign immunity of the United States.

The statute describes three conditions under which the IRS is exempt from having to provide notice of a summons: (1) the summons must be issued in aid of collection, (2) it must aid the collection of an assessment made or a judgment rendered, and (3) it must aid the collection of assessments or judgments “against the person with respect to whose liability the summons is issued.”

The IRS’s summonses in this case satisfy these three conditions, so the IRS was not required to give notice to Polselli. Because Polselli was not entitled to notice, he also was not entitled to bring a motion to quash the summons. Therefore, the district court lacked jurisdiction to hear his motion to quash.

Justice Ketanji Brown Jackson filed a concurring opinion, in which Justice Neil Gorsuch joined, to emphasize that giving notice is the default rule and to caution that reading the exception too broadly would undermine the purpose of the notice-as-default system.

Lora v. United States

Wikipedia · Justia (with opinion) · Docket · oyez.org

Argued on Mar 28, 2023.
Decided on Jun 16, 2023.

Petitioner: Efrain Lora.
Respondent: United States.

Advocates:

• Lawrence D. Rosenberg (for the Petitioner)

Facts of the case (from oyez.org)

Efrain Lora and three co-defendants ran an operation selling cocaine and cocaine base in the Bronx. Lora and the others allegedly conspired to murder a rival drug dealer in retaliation for threats the rival had made over drug territory.

A federal grand jury returned an indictment for aiding and abetting the use and carrying of a firearm during and in relation to a drug trafficking crime causing the death of a person. The government obtained a superseding indictment against Lora that added a drug trafficking conspiracy charge and a charge for causing an intentional killing in furtherance of that conspiracy. The jury found Lora guilty of all three counts, and the district court sentenced him to a five-year term of imprisonment for the first count to run consecutively with a 25-year sentence on the second two counts. Lora appealed, and the U.S. Court of Appeals for the Second Circuit affirmed the consecutive sentences.

Question

Does federal criminal sentencing law require a man who was convicted and sentenced for his role in a drug-trafficking-related murder to serve consecutive, rather than concurrent, sentences?

Conclusion

The bar on imposition of concurrent sentences in 18 U.S.C. §924(c)(1)(D)(ii) does not apply to a sentence for a §924(j) conviction; a §924(j) sentence can run either concurrently with or consecutively to another sentence. Justice Ketanji Brown Jackson authored the unanimous opinion of the Court.

Under 18 U.S.C. § 3584, a federal court imposing multiple prison sentences typically has the discretion to run the sentences concurrently or consecutively. However, § 924(c) provides that “no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment.” Lora was convicted under § 924(j)(1), which penalizes “a person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm,” where “the killing is a murder.” A violation of subsection (c) occurs when a person “uses or carries a firearm” “during and in relation to any crime of violence or drug trafficking crime,” or “possesses a firearm” “in furtherance of any such crime.” The limitation of subsection (c) applies only to that subsection and not to subsection (j), and Congress could not have intended subsection (j) to incorporate subsection (c)’s penalties in addition to its own. Subsection (j) covers a more serious offense, so the resulting flexibility in sentencing is consistent with the statute’s design.

The Court thus vacated the judgment of the Second Circuit, which held that subsection (c)’s prohibition on concurrent sentences applies to violations of subsection (j).

Smith v. United States

Wikipedia · Justia (with opinion) · Docket · oyez.org

Argued on Mar 28, 2023.
Decided on Jun 15, 2023.

Petitioner: Timothy J. Smith.
Respondent: United States.

Advocates:

• Samir Deger-Sen (for the Petitioner)

Facts of the case (from oyez.org)

Timothy Smith is a software engineer who lives in Mobile, Alabama, and who is an avid fisherman. He used a web application called Fiddler to obtain the coordinates of private artificial reefs from a website, StrikeLines, that sells such coordinates for between $190 and $199. Smith informed the owners of StrikeLines that he accessed their reef coordinates but refused to tell them how he did it. After negotiations between the owners of StrikeLines and Smith broke down, the owners contacted law enforcement, who executed a search warrant on Smith’s home.

A federal grand jury indicted Smith on three counts in the Northern District of Florida. Before trial, Smith moved to dismiss all counts for lack of venue because (1) he was a resident of Mobile, Alabama, which is in the Southern District of Alabama, and (2) StrikeLines’s servers, where the coordinate data is stored, are in Orlando, which is in the Middle District of Florida. Thus, venue in the Northern District of Florida was improper, even though StrikeLines was headquartered in Pensacola, which is within that district.

The U.S. Court of Appeals for the Eleventh Circuit concluded that venue was improper as to one count but that improper venue for one count does not require vacatur of the conviction for another count.

Question

Does a criminal trial’s improper venue as to one count require vacatur of the convictions for other counts?

Conclusion

The Constitution permits the retrial of a defendant following a trial in an improper venue conducted before a jury drawn from the wrong district. Justice Samuel Alito authored the unanimous opinion of the Court.

When a defendant obtains a reversal of a prior, unsatisfied conviction, he may normally be retried, unless retrial would be barred by the Double Jeopardy Clause. Neither text nor precedent suggests that if a defendant is tried in the wrong venue (in violation of the Venue Clause), the appropriate remedy is an exception to the retrial rule. The purpose of the Venue Clause is not the convenience for the defendant, as Smith argued, but to be near the location of the alleged crimes.

Similarly, a trial conducted before a jury drawn from the wrong district (in violation of the Vicinage Clause) does not preclude retrial. The Court has repeatedly acknowledged that retrials are the appropriate remedy for violations of other jury-trial rights, and nothing about the Vicinage Clause suggests it should be treated differently.

Smith’s situation does not implicate the Double Jeopardy Clause. That Clause prohibits retrial of a criminal defendant when a trial terminates with a finding that the defendant’s “criminal culpability had not been established” but does not affect trials that terminate “on a basis unrelated to factual guilt or innocence of the offence of which [the defendant] is accused.” Reversal of a conviction based on a violation of the Venue or Vicinage Clauses is the latter type because it does not adjudicate the defendant’s culpability.