Match-E-Be-Nash-She- Wish Band of Pottawat Omi Indians, a Federally Recognized… v. KEAN-ARGOVITZ RESORTS and KEAN-ARGOVITZ RESORTS, MICHIGAN, L.L.C.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0300P (6th Cir.)
File Name: 04a0300p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MATCH-E-BE-NASH-SHE-
WISH BAND OF
POTTAWAT OMI INDIANS, a
Federally Recognized Indian
Tribe,
Plaintiff-Appellee,
v.
KEAN-ARGOVITZ RESORTS
and KEAN-ARGOVITZ
RESORTS, MICHIGAN, L.L.C.,
Defendants-Appellants.
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No. 03-1267
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 02-00194—Gordon J. Quist, District Judge.
Argued: June 15, 2004
Decided and Filed: September 8, 2004
2 Match-E-Be-Nash-She-Wish Band v.
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No. 03-1267
*The Honorable Robert H. Cleland, United States District Judge for
the Eastern District of Michigan, sitting by designation.
Before: GILMAN and COOK, Circuit Judges; CLELAND,
District Judge.*
_________________
COUNSEL
ARGUED: Ronald S. Lederman, SULLIVAN, WARD,
ASHER & PATTON, Southfield, Michigan, for Appellants.
Conly J. Schulte, MONTEAU & PEEBLES, Omaha,
Nebraska, for Appellee. ON BRIEF: Ronald S. Lederman,
SULLIVAN, WARD, ASHER & PATTON, Southfield,
Michigan, for Appellants. Conly J. Schulte, Shilee T. Mullin,
MONTEAU & PEEBLES, Omaha, Nebraska, for Appellee.
GILMAN, J., delivered the opinion of the court, in which
COOK, J., joined. CLELAND, D. J. (pp. 13-17), delivered a
separate concurring opinion.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. In November of
1998, the Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians (the Tribe) entered into two agreements with Kean-
Argovitz Resorts and Kean-Argovitz Resorts, Michigan,
L.L.C. (collectively KAR) relating to the development and
management of a proposed gaming facility in Michigan.
Before the agreements had been approved by the Chairman of
the National Indian Gaming Commission (NIGC), the Tribe
unilaterally terminated its relationship with KAR. The Tribe
then filed this action in federal court, seeking both a

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declaration that the agreements are void and a permanent
injunction to prevent KAR from attempting to enforce the
arbitration clause contained in one of the agreements. KAR
filed a counterclaim, seeking to compel the Tribe to submit to
arbitration. The district court concluded that the agreements
were void under federal law and accordingly granted
summary judgment in favor of the Tribe. For the reasons set
forth below, we VACATE the judgment of the district court
and REMAND the case with instructions to refer the case to
arbitration.
I. BACKGROUND
A. Factual background
The Tribe is a federally recognized Indian tribe located in
the Western District of Michigan. It does not presently
occupy any land as part of a reservation. According to KAR,
the Tribe did not become federally recognized until August of
1999.
In November of 1998, the Tribe and KAR entered into both
a Management Agreement and a Development Agreement
relating to a proposed gaming facility that was to be located
on tribal lands in Michigan. Under the Development
Agreement, KAR was obligated to make monthly advances to
the Tribe and agreed to loan it as much as $100,000,000 for
the project. KAR advanced approximately $1,000,000 to the
Tribe between November of 1998 and January of 2000.
The Development Agreement contains an arbitration clause,
which states that “[t]he parties agree that binding arbitration
. . . shall be the remedy for all disputes, controversies and
claims . . . arising out of any of these agreements.” Another
relevant provision of the Agreement states that
[t]his is intended to be a legally enforceable agreement,
independent of the Management Agreement, which shall
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enter into effect when executed and delivered by the
parties, and be enforceable between the parties regardless
of whether or not this Agreement or the Management
Agreement is approved by the Chairperson of the NIGC.
In January of 2000, the Tribe unilaterally terminated its
agreements with KAR. Approximately one year later, KAR
submitted a demand for arbitration to the American
Arbitration Association and served a copy upon the Tribe.
The Tribe refused to submit to arbitration on the ground that
the entire Development Agreement, and therefore the
arbitration clause, is void under the Indian Gaming
Regulatory Act of 1988 (IGRA), 25 U.S.C. §§ 2701-21,
because the Agreement was never approved by the Chairman
of NIGC. IGRA and its related regulations provide that any
Indian gaming management contract, or any agreement
collateral to a management contract, is void until approved by
the Chairman of NIGC. See 25 U.S.C. § 2711(a)(1) and (3);
25 C.F.R. § 533.7.
B. Procedural background
In March of 2002, the Tribe filed this action in the district
court, seeking a declaratory judgment and injunctive relief.
KAR filed a counterclaim to require the Tribe to submit to
arbitration. Both parties filed motions for summary
judgment. The district court granted the Tribe’s motion and
denied KAR’s. This timely appeal by KAR followed.
II. ANALYSIS
A. Standard of review
The Development Agreement in the present case involves
interstate commerce and therefore falls within the ambit of the
Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-14. “This court
reviews de novo a district court’s ruling on whether to compel
arbitration pursuant to the FAA.” Burden v. Check Into Cash,

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267 F.3d 483, 485 (6th Cir. 2001). “Under the FAA, a district
court’s consideration of a motion to compel arbitration is
limited to determining whether the parties entered into a valid
agreement to arbitrate, and does not reach the merits of the
parties’ claims.” Id.
B. Enforceability of the arbitration provision
In Great Earth Companies, Inc. v. Simons, 288 F.3d 878
(6th Cir. 2002), this court explained the application of Section
4 of the FAA, 9 U.S.C. § 4, as follows:
Section 4 of the FAA sets forth the procedure to be
followed by the district court when presented with a
petition to compel arbitration. That section provides, in
relevant part, that
[a] party aggrieved by the . . . refusal of another to
arbitrate under a written agreement for arbitration
may petition any United States district court . . . for
an order directing that such arbitration proceed in
the manner provided for in such agreement. . . . The
court shall hear the parties, and upon being satisfied
that the making of the agreement for arbitration or
the failure to comply therewith is not in issue, the
court shall make an order directing the parties to
proceed to arbitration in accordance with the terms
of the agreement. . . . If the making of the
arbitration agreement . . . be in issue, the court shall
proceed summarily to the trial thereof. . . .
* * *
The Supreme Court has explained that in deciding
whether a valid agreement to arbitrate exists, district
courts may consider only claims concerning the validity
of the arbitration clause itself, as opposed to challenges
to the validity of the contract as a whole:
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[I]f the claim is fraud in the inducement of the
arbitration clause itself—an issue which goes to the
‘making’ of the agreement to arbitrate—the federal
court may proceed to adjudicate it. But the statutory
language [of the FAA] does not permit the federal
court to consider claims of fraud in the inducement
of the contract generally.
Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388
U.S. 395, 403-04, 87 S.Ct. 1801, 18 L.Ed.2d 1270
(1967). Once the district court determines that a valid
agreement to arbitrate exists, challenges to other distinct
parts of the contract are to be resolved by the arbitrator.
Id.
Great Earth Companies, 288 F.3d at 888-90.
Relying on Great Earth Companies and Prima Paint, KAR
contends that “Plaintiff never contested the validity of the
arbitration provision itself; the Tribe instead contested the
validity of the Development Agreement in its entirety. . . .
Applying controlling Supreme Court and Sixth Circuit
authority, it was within the exclusive authority of the
arbitrator to resolve this issue.” The district court disagreed,
holding that the arbitration clause is unenforceable because
the Development Agreement is void under IGRA.
We have found no federal case that has squarely addressed
whether a court must enforce an arbitration clause that is part
of an agreement subject to IGRA that has not been approved
by the Chairman of the NIGC. This court addressed an
analogous set of facts, however, in Burden v. Check Into Cash
of Kentucky, L.L.C., 267 F.3d 483 (6th Cir. 2001), where the
plaintiffs claimed that Check Into Cash, a check-cashing
company, had violated both federal and Kentucky law by
lending money to hundreds of Kentucky consumers at
usurious interest rates. Id. at 485-87. Check Into Cash
requested that the district court compel arbitration based upon

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an arbitration clause contained in the loan agreements. Id. at
486-87. In response, the plaintiffs alleged that the arbitration
clause was unenforceable because the loan agreements were
void ab initio. Check Into Cash was not licensed by the state,
contrary to Kentucky statutes that require finance companies
to obtain a license from the state and declare that any loan
made by an unlicensed company is void. See Ky. Rev. Stat.
§§ 288.420, 288.991(1).
The district court in Burden concluded that the plaintiffs’
allegation—that the loan agreements containing the
arbitration clause were void ab initio—must be determined by
a court rather than an arbitrator. 267 F.3d at 487. This court
vacated the judgment of the district court, reasoning as
follows:
Plaintiffs’ allegations primarily concern the substance of
the loan agreements, which Plaintiffs then argue are
“void” under [Kentucky law]. However, . . . Plaintiffs[’]
allegations . . . do not concern their failure to assent to
the loan agreements, and do not concern signatory power.
Accordingly, because Plaintiffs’ allegations . . . challenge
the substance, rather than the existence, of the loan
agreements, we vacate the district court’s [decision that
those allegations must be decided by the court rather than
the arbitrator].
Id. at 490. The case was then remanded for the district court
to consider several of the plaintiffs’ remaining arguments
against the enforceability of the arbitration clause. Id. at 493
(“[W]e vacate the district court’s order and remand for further
consideration of Defendants’ motion to compel arbitration in
light of Plaintiffs’ allegations that the arbitration agreements
are unenforceable on grounds that the agreements would
impose burdensome costs, deny statutory rights, and
constitute an uninformed waiver of jury trial rights.”).
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No. 03-1267
The operative facts in the present case are quite similar to
those in Burden. In both cases, the parties seeking to avoid
arbitration contend that the arbitration clause is unenforceable
because the agreement as a whole is void pursuant to a
statute. As in Burden, the Tribe does not deny that it entered
into the agreement in question. Nor does it claim that the
agreement was executed by someone who lacked signatory
power. Because the material facts of these cases are legally
indistinguishable, Burden compels us to conclude that the
Tribe’s allegation that the Development Agreement is void
under federal law “challenge[s] the substance, rather than the
existence,” of the Development Agreement. The district court
therefore should have granted KAR’s motion to compel
arbitration.
Our conclusion is consistent with the case of Bruce H. Lien
v. Sokaogon Gaming Enterprise Corp. v. Tushie-Montgomery
Assoc. Inc., 86 F.3d 656 (7th Cir. 1996), where the Seventh
Circuit considered whether a tribe’s agreement to an
arbitration clause contained in a management contract
constituted a waiver of sovereign immunity. In Sokaogon
Gaming, the tribe contended that the entire contract, which
was executed prior to the effective date of IGRA, was illegal
because it had not been approved by the Bureau of Indian
Affairs (BIA) as required by pre-IGRA law. Id. at 658.
Before reaching the merits of the dispute, the court noted that
“[a]lthough the arbitration clause is contained in a contract
that the tribe contends is illegal, the tribe rightly does not
argue that the illegality of the contract infects the arbitration
clause.” Id. at 659. This comment supports KAR’s position
in the present case, despite the fact that it was not further
developed because the parties, as the court conceded, did not
raise the issue. Id.; see also Iowa Mgmt. & Consultants, Inc.
v. Sac & Fox Tribe, 656 N.W.2d 167, 172 n.1 (Iowa 2003)
(characterizing the statement in Sokaogon Gaming as a
suggestion rather than a holding).

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We are cognizant of the fact that the Iowa Supreme Court
reached a contrary result in Sac & Fox Tribe, holding that “if
the entire [management] agreement is invalid under federal
law [because of a lack of NIGC approval], this would also
invalidate the provision in the agreement for arbitration of
disputes.” 656 N.W.2d at 171. But the Iowa court’s entire
analysis of the issue consisted of the following statement in
a footnote:
We note that the federal court in Sokaogon Gaming, 86
F.3d at 661, suggests that, under the holding of Prima
Paint Corp. v. Flood & Conklin Manufacturing Co., 388
U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), a
finding of invalidity as to the main contract will not
necessarily invalidate the arbitration clause. We do not
believe that the Prima Paint decision supports that result
in the present case. If the agreement was a management
contract, all provisions thereof, including the arbitration
clause, required NIGC approval pursuant to 25 U.S.C.
§ 2711.
Sac & Fox Tribe, 656 N.W.2d at 172 n.1.
With all due respect, we do not believe that the Iowa
Supreme Court persuasively distinguished Prima Paint. We
are bound, moreover, by our own decision in Burden
regardless of the contrary decision in Sac & Fox Tribe. See
Rule 206(c) of the Sixth Circuit Rules (“Reported panel
opinions are binding on subsequent panels. Thus, no
subsequent panel overrules a published opinion of a previous
panel. Court en banc consideration is required to overrule a
published opinion of the court.”).
Nor are we persuaded by the two federal cases relied on by
the Tribe. One is Bruce H. Lien Co. v. Three Affiliated
Tribes, 93 F.3d 1412 (8th Cir. 1996), where the tribes
contended that a purported management contract was invalid
because the contract was signed by a person without authority
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No. 03-1267
to act on behalf of the tribes. The Eighth Circuit stated that
“[t]his challenge to the document itself therefore calls into
question all provisions contained therein (including
provisions relating to arbitration, sovereign immunity, and
federal district court jurisdiction).” Id. at 1417. Three
Affiliated Tribes is clearly distinguishable from the present
case, however, because in that case the tribe argued that the
contract was invalid because of a lack of signatory power. In
that regard Three Affiliated Tribes is consistent with Burden,
where this court recognized that an allegation of a lack of
signatory power constitutes a challenge to the very existence
of the contract, which under Prima Paint must be resolved by
the court rather than an arbitrator. 267 F.3d at 489-90. Here,
by contrast, there is no question regarding the proper
execution of the Development Agreement.
The other federal case relied on by the Tribe is the Ninth
Circuit’s decision in AK Management Co. v. San Manuel
Band of Mission Indians, 789 F.2d 785 (9th Cir. 1986), which
considered the enforceability of a pre-IGRA management
contract that had not been approved by the BIA. Like IGRA,
the relevant statute at that time provided that management
contracts that had not received BIA approval were “null and
void.” Id. at 786 n.1. The Ninth Circuit held that the district
court had properly dismissed the complaint because “the
waiver of sovereign immunity is clearly part of the
Agreement, and is not operable except as part of that
Agreement. Since the entire contract is inoperable without
BIA approval, the waiver is inoperable and, therefore, the
tribe remains immune from suit.” Id. at 789. The Ninth
Circuit explained its reasoning as follows:
[The statute] explicitly provides that a contract is “null
and void” without written approval from the BIA.
Therefore it is logical to conclude that an agreement
without BIA approval must be null and void in its
entirety. No part of it may be enforced or relied upon
unless and until BIA approval is given. BIA approval is

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an absolute prerequisite to the enforceability of the
contract. To give piecemeal effect to a contract as urged
by AK, would hobble the statute. The plain words of
[the statute] simply render this contract void in the
absence of BIA approval. Since it is void, it cannot be
relied upon to give rise to any obligation by the
Band. . . .
Id. (emphasis in original).
But AK Management is distinguishable from the present
case because the management contract at issue there did not
contain an arbitration clause. Where a contract contains an
arbitration clause, and the parties do not challenge either the
existence of the contract or the making of the clause, the
controlling precedent of both the Supreme Court and this
court require that the validity of the contract be first
determined by an arbitrator rather than by a district court.
Prima Paint, 388 U.S. at 403 (a “federal court [must] order
arbitration to proceed once it is satisfied that the making of
the agreement for arbitration or the failure to comply (with
the arbitration agreement) is not in issue”) (quotation marks
omitted); Burden, 267 F.3d at 490 (stating that arbitration is
appropriate where the claim challenges the substance of the
contract rather than its existence).
We recognize that remanding this case so that it can be sent
to arbitration might seem like an inefficient result. IGRA,
after all, provides that any management contract or collateral
agreement not approved by the Chairman of the NIGC is
void. But the Tribe does not challenge either the making of
the arbitration clause or the existence of the contract.
Evidence of the parties’ intent to enter into a binding
agreement, moreover, is supplied by the fact that KAR has
advanced nearly $1,000,000 to the Tribe under the
Development Agreement and by the clause in the Agreement
that states that “[t]his is intended to be a legally enforceable
agreement . . . which shall enter into effect when executed and
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No. 03-1267
delivered by the parties, and be enforceable between the
parties regardless of whether or not this Agreement or the
Management Agreement is approved by the Chairperson of
the NIGC.”
Under these circumstances, the Tribe cannot attack the
validity of the arbitration clause simply by claiming that the
entire agreement is too ephemeral to deserve recognition.
Both Prima Paint and Burden therefore require that the
Agreement’s enforceability be determined in the first instance
by an arbitrator.
III. CONCLUSION
For all of the reasons set forth above, we VACATE the
judgment of the district court and REMAND the case with
instructions to refer the case to arbitration.

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___________________
CONCURRENCE
___________________
CLELAND, District Judge, CONCURRING. I am
compelled to agree that this case cannot legitimately be
distinguished from Burden v. Check Into Cash of Kentucky,
L.L.C., 267 F.3d 483 (6th Cir. 2001), and I note that the
majority’s decision is written clearly and concisely to that
end. I write separately only because I believe Burden defined
“void” too narrowly and consequently left a gap in the
discourse concerning the void/voidable distinction for
purposes of the severance doctrine.
The plaintiffs in Burden challenged a contract where a state
statute pronounced loan agreements made by unlicensed
lenders to be “void.” Similarly, our instant case involves a
challenge to a contract where a federal statute requires the
Chairman of the National Indian Gaming Commission’s
signature on casino management agreements and in its
absence holds any such contract “void.”
In Burden, the court suggested that void, or void ab initio,
agreements should not be subject to the severance doctrine.
Burden, 267 F.3d at 488-89. In other words, if an entire
contract were deemed void, or void ab initio, the arbitration
clause could not be enforced and the district court could
adjudicate the underlying claims. Burden, however,
concluded that a voidness challenge to a contract based upon
statutory authority (as in this case) should not be construed as
a void ab initio allegation. Rather, Burden held a void ab
initio challenge requires more than an allegation of a statutory
violation. Id. at 490. According to Burden, void ab initio
allegations, for purposes of the severance doctrine, must be
based upon one of only two challenges: (1) allegations of a
failure to assent to the contract, and (2) challenges to
signatory power. Accordingly, the challenge raised by the
14 Match-E-Be-Nash-She-Wish Band v.
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No. 03-1267
1Under Prim a Paint, a court, rather than an arbitrator, can decide a
claim o f fraud in the inducement, but only if the claim of fraud concerns
the inducement of the arbitration clause itself, not the inducement of the
contract as a whole. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388
U.S. 395, 403 -04 (1967). T he Court in Prima Paint found that arbitration
clauses were "separable" from the contracts in which they were included,
and that "a broad arbitration clause will be held to encompass arbitration
of the claim that the contract itself was induced from fraud." Id. at 402.
"If the arbitration clause is not at issue, then the arbitrator will decide
challenges to the contract containing the arbitration clause." C.B.S.
Employees Fed. Credit Union v. Donaldson, Lufkin & Jenrette Sec. Co rp.,
912 F.2d 1563, 15 67 (6th Cir. 1990).
plaintiffs in Burden and the Indian Tribe in this case, which
allege that the entire contract is void under state or federal
law, do not amount to void ab initio allegations.
The analysis in Burden, in my view, is incomplete and
seems to be at odds with the conclusion ultimately reached in
that case. First, the court extensively discussed why it
thought that the void/voidable distinction mattered for the
severance doctrine, and stated that it tended to agree with
other circuits that have found that Prima Paint does not apply
to allegations of nonexistent (i.e., void) contracts.1 It stated:
The void/voidable distinction is relevant for Prima Paint
analysis because a void contract, unlike a voidable
contract, was never a contract at all. Thus, a valid
arbitration agreement "cannot arise out of a broader
contract if no broader contract ever existed." Sandvik,
220 F.3d at 108. Accordingly, Prima Paint "presumes an
underlying, existent, agreement." Id. at 106.
Burden, 267 F.3d at 488 (citing Sandvik AB v. Advent Int’l
Corp., 220 F.3d 99, 107 (3d Cir. 2000)). After discussing this
circuit’s precedent, the court stated that it was inclined to
follow the reasoning of several sister circuits that have held
that Prima Paint does not apply to allegations of a
nonexistent (void) contract. Id. at 489 (“Indeed, if anything,

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we are inclined to find that Prima Paint supports, rather than
prohibits, excluding nonexistent contracts from the
severability doctrine, because an allegation of a void contract
raises exactly the same question as an allegation of a
fraudulently induced arbitration agreement: whether the
arbitrator has any power at all.”). The court approvingly
quoted the Seventh Circuit’s common sense approach: “No
contract, no power.” Id. (citing Sphere Drake Ins. Ltd. v. All
Am. Ins. Co., 256 F.3d 587, 591 (7th Cir. 2001)).
But then, despite its apparent endorsement of the
void/voidable distinction, the Burden court took a sharp turn,
leaving that distinction by the wayside, and went on to
conclude without any substantial explanation that the
void/voidable principles just discussed did not apply to the
contract at issue simply because it had been challenged as
void under a state statute. The court cited a Ninth Circuit case
and discussed its general illustrations of agreements that
Circuit had found to be void ab initio. The Burden court
concluded that void ab initio challenges must involve
allegations of either a failure to assent or an absence of
signatory power. Id. at 490 (discussing Three Valleys Mun.
Water Dist. v. E.F. Hutton & Co., 925 F.2d 1136 (9th Cir.
1991)). The Burden court found that the challenge presented
to the contract’s existence did not constitute a void ab initio
challenge (as that concept was, in Burden, now defined). To
the Burden court, it followed directly from that conclusion
that the contract must be subject to the severability doctrine.
Unfortunately, the Burden court said only what the
challenge was not, and not what it was. It was not either of
the two varieties of “void ab initio” illustrated in Three
Valleys; it was, however, a challenge based precisely upon
something else entirely: statutory voidness. The question not
addressed was whether an arbitration clause in a statutorily
void contract must be enforced; it was as though there existed
an underlying assumption that a claim of statutory voidness
was per se illegitimate. The Burden court therefore implicitly
16 Match-E-Be-Nash-She-Wish Band v.
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2A review of written decisions across all federal courts shows that
courts consistently use the terms interchangeab ly.
(perhaps unintentionally) determined that only those
challenges that met the narrow void ab initio definition set
forth therein could be adjudicated by the court. I can find no
principled distinction between contracts void and contracts
void ab initio.2 The Burden court, therefore, essentially
rewrote the definition of void. According to Burden, a void,
or nonexistent contract entails only those agreements where
one party lacked assent or where the signatory power is
challenged. This too-narrow definition of void (or void ab
initio, it makes no difference), runs contrary to the clear-
headed and, in my view, correct obiter dicta earlier in Burden
discussing the unenforceable nature of void contracts,
including the arbitration provisions contained in such
contracts. Id. at 488-89.
Void and void ab initio agreements, as opposed to voidable
agreements, are agreements that never existed. Confining
void (or void ab initio) contracts to a narrow set of
circumstances, as the court did in Burden, abrogates long-
standing principles defining void contracts and holds as of no
effect any legislature’s decision to deem certain agreements
void when they fail to comply with statutory requirements,
such as those found in the Indian Gaming Regulatory Act. In
this case, it allows a portion of a nonexistent contract to be
animated and enforced in direct contravention of an entirely
clear federal statute.
The Federal Arbitration Act’s policy favoring arbitration
cannot compel an agreement to arbitrate where no contract
exists. A void contract is simply nonexistent and a provision
of a contract that does not exist should not be separately
enforceable. This includes an arbitration clause. Mitsubishi
Motors Corp. v. Soler Chrysler Plymouth, Inc., 473 U.S. 614,
625 (1985) ("[L]iberal federal policy favoring arbitration

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agreements . . . is at bottom a policy guaranteeing the
enforcement of private contractual arrangements.") (citation
and quotation omitted).
Constrained as we are by the Burden court’s narrow
definition of void, which I believe should be reexamined at
some point by this Circuit, I concur in the majority’s decision.

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